Citation: 2019 RLLR 15
Tribunal: Refugee Protection Division
Date of Decision: August 30, 2019
Panel: David D’Intino
Counsel for the claimant(s): Alfonso Mejia-Arias
Country: Mexico
RPD Number: TB8-17496
Associated RPD Numbers: TB8-17497
ATIP Number: A-2020-01124
ATIP Pages: 0000109-0000118
[1] [XXX] (principal claimant) and her common-law spouse [XXX] (the associate claimant) both are citizens of Mexico and claim refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)1.
ALLEGATIONS
[2] The allegations are fully set out in the principal claimant’s basis of claim (BOC) form2. To summarize, the principal claimant fears persecution by corrupt state actors on the basis of her political opinion and her work as a [XXX] in Mexico. The associate claimant fears persecution as the spouse of the principal claimant and also a risk to his life or of cruel and unusual treatment or punishment by the same corrupt state actors.
DETERMINATION
[3] I find that the principal claimant is a Convention Refugee pursuant to s. 96 of the IRPA, as she faces a serious possibility of persecution on account of her member in a particular social [XXX]. I also find that the associate claimant is a Convention refugee on the basis of membership in a particular social group, a family member of a [XXX], as the spouse of the principal claimant.
IDENTITY
[4] The claimants have established their identities as nationals of Mexico by their Mexican passports3.
ANALYSIS
Credibility
[5] The claimants were credible witnesses. Their evidence was logical, consistent and free from material contradictions, omissions or implausibility. They offered spontaneous details without prompting and were both highly articulate when discussing specifics. The principal claimant in particular was impressive when discussing her passion for [XXX] and the ideals of freedom of expression, despite her young age.
[6] As such, I make the following findings of fact:
a. The principal claimant was a journalist in Mexico. She started her career in 2011 while she was still in University. She began working as a [XXX] but felt that she was only being used to attract men to the publication and not for her intellect, so she subsequently began working for [XXX] in or around 2017;
b. In 2016, the associate claimant began working for the [XXX] in the state of [XXX]. After working for the [XXX] for a short time, in or around [XXX] of 2016 the associate claimant was approached by his superior and told he was being considered for an “under the table” supervisor position. All he had to do was to fudge some numbers and sign off on the invoices;
c. The associate claimant was not comfortable in doing this because he knew it was wrong and so discussed the offer with his spouse. The principal claimant saw this as an opportunity to have her work taken seriously and to expose corruption within the [XXX] and so they attempted to collect further information and further details of the scheme;
d. The associate claimant testified that his superior [XXX] wanted him to call the vendors of supplies to the [XXX] and modify the invoices, effectively engaging in “money laundering”. In order to not arouse suspicion, the associate claimant played along for a while, in order to gather more evidence for the principal claimant to write her story;
e. The principal claimant wrote a draft of the article, which was never published.4 She testified that she shared her notes with only four people. Her editor warned her to be careful because of what she was getting involved in, but did not discourage her from investigating and writing the article;
f. The day before the [XXX] 2016 holidays, after work the associate claimant was leaving work to pick up his spouse when he was cut off by two vehicles. Armed men exited one of the vehicles, surrounded the claimant and threw him to the ground. They put a gun to his head and told him that if the principal claimant published her article on the Health Ministry fraud, that they would gang rape her in front of the associate claimant, chop her up into pieces and the burn the associate claimant to ashes;
g. The claimants agreed that the associate claimant would play along and pretend to call vendors and pretend to cooperate so that his employers who were watching him would not suspect anything untoward;
h. The claimants then left Mexico on [XXX], 2017 and came to Canada. They did not claim refugee status until April 3, 2018 when the associate claimant was detained by Ontario Provincial Police during a traffic stop.
NEXUS
[7] I find that the principal claimant [XXX] has multiple nexuses to the Convention. Counsel argued that she faces persecution on account of her political opinion, given that the fraud and corruption she has uncovered is directly tied to the government of [XXX]. She also faces persecution on account of her gender as a woman in Mexico who has been threatened with sexual violence. Lastly, counsel submits that she is a journalist and faces persecution on that basis and which is a particular social group under s. 96.
[8] For the purposes of this decision I will conduct my analysis on the basis of her membership in a particular social group, journalists.
[9] The associate claimant also has multiple nexuses to the Convention. I will conduct my analysis on the basis of his membership in a particular social group, the family member of a [XXX].
WELL FOUNDED FEAR OF PERSECUTION
Subjective Fear
[10] The claimants each fear persecution on a Convention ground. The principal claimant fears sexual violence and death on account her work as a journalist to expose corruption within the [XXX].
[11] The associate claimant fears torture and death on account of his refusal to engage in the same corruption but also as retaliation for his common-law partner’s [XXX].
[12] The claimants knowingly remained in Canada for over a year before claiming refugee status. It was only the associate claimant’s arrest in [XXX] of 2018 following a traffic stop that prompted them to make their asylum claim. Such a delay is assessed vis-a-vis the claimants’ credibility and subjective fear5.
[13] The principal claimant testified that they did not intend to remain in Canada, but rather were hoping to return to Mexico after the Federal election (which resulted in the victory of Andres Manuel Lopez Obrador). Unfortunately, the claimant says that the election did not spur positive change vis-a-vis the protection of journalists and combatting institutional corruption, and therefore claiming refugee status was a last resort.
[14] Given that I found the claimants to be very credible, I accepted this explanation and made no adverse finding regarding their credibility. I accept that the claimants subjectively fear persecution on Convention grounds if they returned to Mexico.
Objective Basis
[15] The principal claimant’s article on the fraud at the Health Ministry was never published, though she testified that she did attempt to have it published. She provided a copy to me in the claimants’ disclosure package.6 The principal claimant testified that only four people knew about that article, and yet someone with an interest in preventing its publication was informed of its existence which then prompted a violent attack and threats of death against the associate claimant.
[16] I have already found the claimants to be credible. Therefore, the only reasonable inference I can draw is that one of those four people at [XXX] leaked the existence of that article to corrupt actors in the [XXX], who then directed armed men to intercept and threaten the associate claimant.
[17] Corruption is endemic throughout all levels of government in Mexico. The NDP for Mexico paints a bleak picture of the police, prosecution and security services overall. For example, item 9.6 describes how some members of the Public Ministry will not even register a complaint without first receiving a bribe.7
[18] Item 9.108 highlights the following about the Mexican political and judicial system:
At least 14 former or current governors are currently under investigation for corruption, some of them for colluding with the organized crime groups that are largely responsible for Mexico’s rising violence. 1 In 2017, Mexico placed last among OECD countries in Transparency International ‘s Corruption Perceptions Index, with an overall ranking of 135 out of 180 countries, putting it in the company of Honduras, Paraguay, Kyrgyzstan, Russia, and others.
Blatant corruption and government abuse in a moment of such extreme violence has greatly weakened Mexicans’ confidence in public institutions. A September 2017 Pew Research Center survey found corruption to be Mexicans’ top public concern, with 84 percent of those surveyed saying corrupt political leaders were a “very big problem” in their country and 79 percent saying the same about corrupt police officers-up 12 and 9 percent, respectively, from 2015.
High public perception of corruption extends into the judicial sector as well: as seen in Figure 1, Mexico’s most recent national victimization survey suggests over 60 percent of the population perceives the country’s prosecutors and judges as corrupt.
According to the same victimization survey, an estimated 94 percent of crimes in Mexico are never reported or investigated, primarily because victims distrust authorities or because they believe reporting crimes is a waste of time. This fuels violence and impunity, as any crime that goes unreported also goes unpunished, allowing criminal groups and corrupt officials to perpetrate crimes without fear of being held accountable. In 2017, Mexico had the fourth highest impunity index on the Global Impunity Index, and it ranked first out of the 21 countries in the Americas that were analyzed.
[19] In considering all of the evidence available to me, I find that the claimants have established an objective basis for their fear of persecution in Mexico.
STATE PROTECTION
[20] There is a presumption that, except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. The presumption that a state is capable of protecting its citizens underscores the principle that international protection comes into play only when a refugee claimant has no other recourse available9. Having canvassed the country conditions documents, the panel finds that the Mexican government is in effective control of its territory and has in place a functioning security force to uphold the laws and constitution of the country10. Therefore, the burden of attempting to show that one should not be required to exhaust all avenues of domestic recourse is a heavy one11.
[21] The documentary evidence before me indicates that Mexico is a democracy, and there are free and fair elections. There is a relatively independent and impartial judiciary. Therefore, in countries such as Mexico the claimant must do more than merely show that he or she went to see members of the police force and that those efforts were unsuccessful.
[22] There is a high incidence of violence in Mexico. The violence is largely attributable to drug trafficking and organized crime. While there is corruption in Mexico, the government is making efforts to deal with this problem12.
[23] However, though the state of Mexico may have the best of intentions and has the appropriate laws in place, the concern for the panel is the operational adequacy of those efforts in providing adequate state protection. Based on all of the materials available to me, it is evident that Mexico is simply unable to protect journalists from persecution, torture or death.
[24] For example, item 2.1 of the Mexico NDP contains a human rights report issued by the U.S. Department of State13 and I note the following passage:
Human rights issues included reports of the involvement by police, military, and other state officials, sometimes in coordination with criminal organizations, in unlawful or arbitrary killings, forced disappearance, torture, and arbitrary detention by both government and illegal armed groups; harsh and life-threatening prison conditions in some prisons; impunity for violence against journalists and state and local censorship and criminal libel; and violence targeting lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons.
Impunity for human rights abuses remained a problem, with extremely low rates of prosecution for all forms of crimes. The government’s federal statistics agency (INEGI) estimated 94 percent of crimes were either unreported or not investigated.
The same document14 at page 15, states the following:
Violence and Harassment: Journalists were murdered or subject to physical attacks, harassment, and intimidation (especially by state agents and transnational criminal organizations) due to their reporting. This limited media’s ability to investigate and report, since many of the reporters who were killed covered crime, corruption, and local politics. According to the NGO Article 19, as of December 5, nine journalists had been killed because of their reporting.
Perpetrators of violence against journalists acted with impunity. According to Article 19, as of August the impunity rate for crimes against journalists was 99.7 percent. In 2017 there were 507 attacks against journalists, according to Article 19. Since its creation in 2010, the Office of the Special Prosecutor for Crimes Against Journalists (FEADLE), a PGR unit, won only eight convictions, and none for murder, in the more than 2,000 cases it investigated. On August 25, FEADLE won its first conviction in the new justice system, obtaining a sentence against Tabasco state police officers for illegally detaining a journalist because of his reporting.
Government officials believed organized crime to be behind most of these attacks, but NGOs asserted there were instances when local government authorities participated in or condoned the acts. According to Article 19, in the last five years, 48 percent of physical attacks against journalists originated with public officials. Although 75 percent of those came from state or local officials, federal officials and members of the armed forces were also suspected of being behind attacks against journalists.
[25] Furthermore, in this claim the agents of persecution are apparently acting at the behest of rogue state actors. Where the agent of persecution is the state itself or acting at the behest of corrupt state actors, there is no state protection. Furthermore, where the failure of state to protect its citizens forms a broader pattern of failure throughout the country, the inadequacy of state protection is made out.15
[26] In considering all of the evidence presented, particularly the objective country documentation which supports the testimony of the principal claimant, I find that on a balance of probabilities, state protection for this claimant is inadequate and would not be reasonably forthcoming. I further find that had the claimants approached the authorities for protection, that they would be putting their lives at risk.
INTERNAL FLIGHT ALTERNATIVE
[27] I proposed Merida, Yucatan as a potential internal flight alternative for the claimants. Merida is almost 1800 kilometres or a 23 hour drive from [XXX], where the claimants resided.
[28] I asked the principal claimant if she could move to Merida and be safe. She replied as follows:
“No, because I am [XXX] and that is not going to change. That’s what I studied for and worked so hard for and I am not going to throw that away. I always try to expose the truth and expose the power they have. They [NDP for Mexico] can say its [Merida] safe but cannot guarantee your safety regardless of what your career may be”.
[29] Given that the claimants fear corrupt state actors because of their knowledge of a misuse of public funds, I find on a balance of probabilities that the agents of persecution would have both the desire and the means to locate the claimants throughout Mexico.
[30] Furthermore, I find that the principal claimant would not cease her [XXX] work. It is a fundamental part of her identity and is clearly important to her. The objective evidence strongly supports the conclusion that journalists are subject to persecution everywhere in Mexico and therefore the principal claimant faces a serious possibility of persecution everywhere in Mexico.
[31] The associate claimant is going to follow his common law spouse wherever she goes. He faces a similar risk of violence, torture or death as a consequence of her work as journalist and I find that there is no viable IFA in Mexico which is both safe and reasonable for him as well.
CONCLUSION
[32] I find that the principal claimant is Convention refugee as she faces a serious possibility of persecution on a Convention ground, as a member of a particular social group – [XXX], on a forward-looking basis. Her claim is accepted.
[33] I similarly find that the associate claimant is a Convention refugee as he faces a serious possibility of persecution on a Convention ground, as a member of a particular social group – the family of a [XXX], on a forward-looking basis. His claim is also accepted.
(signed) David D’Intino
August 30, 2019
1 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended.
2 Exhibit 2.1.
3 Exhibit 1.
4 Exhibit 4.
5 Toure v. Canada (Minister of Citizenship and Immigration), 2012 FC 773, at para 55.
6 Exhibit 4.
7 Exhibit 3. National Documentation Package for Mexico (March 29, 2019 version).
8 Ibid.
9 Ward, supra note 5.
10 Exhibit 4
11 Sanchez, Perla Saavedra v. M.C.I. (F.C., no. IMM-1604-07), Barnes, February 5, 2008, 2008 FC 134.
12 Exhibit 3, supra note 3.
13 Exhibit 3. Item 2.1. “Mexico. Country Reports on Human Rights Practices for 2018” U.S. Department of State pg 1.
14 Ibid at p 15.
15 Zhuravlvev v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 507.