Citation: 2020 RLLR 28
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2020
Panel: Jacqueline Gallant
Counsel for the Claimant(s): Fiona Begg
Country: Mexico
RPD Number: VB9-05754
Associated RPD Number(s): VB9-05768
ATIP Number: A-2021-00540
ATIP Pages: 000166-0000173
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision of the claim of [XXX] (the “Principal Claimant”) and his spouse [XXX] (the “Associate Claimant)”, who claim to be citizens of Mexico, and are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1
[2] In rendering its reasons, the panel has considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.2
DETERMINATION
[3] For the reasons that follow the panel finds that the claimants have satisfied the burden of establishing that, on a balance of probabilities, they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment upon return to their country.
ALLEGATIONS
[4] The claimants fear they will be killed by members of the Cartel Jalisco Nueva Generacion (CJNG) if they return to Mexico.
ANALYSIS
Identity
[5] The panel finds that the claimants’ identities as nationals of Mexico is established by their testimony and the documentary evidence filed including their Mexican passports.
Nexus
[6] The panel finds that that there is no nexus between the claimants’ allegations and one of the five Refugee Convention grounds, and has therefore assessed these claims only under the provisions of s. 97(1) of the IRPA
Credibility
[7] The panel finds the claimants to be credible witnesses. They testified in straightforward and forthcoming manner and there were no relevant inconsistencies in their testimony or contradictions between their testimony and the other evidence before the panel.
[8] The panel accepts the following on a balance of probabilities:
The claimants opened a store in Guadalajara at the end of [XXX] of 2017 and members of the CJNG demanded the claimants pay them [XXX] Mexican pesos for the CJNG to provide protection to the store over the Christmas season. When the claimants did not pay this fee, [XXX] days later, the amount was increased to [XXX] Mexican pesos and the CJNG members threated the Associate Claimant telling her they knew about her daily activities and where the claimants lived.
On [XXX], 2017 three CJNG members came to the claimants’ store. Two of the men attacked the Principal Claimant and the other man stole merchandise from the store. The claimants went to the prosecutor’ s office to make a complaint but was told nothing could be done.
The claimants spent Christmas at the Principal Claimant’s family’s home in [XXX], Michoacan and when they returned home on [XXX], 2017, their home had been broken into but nothing had been stolen.
On [XXX] 2018 the members of the CJNG came to the claimants’ store, beat up the Associate Claimant and locked her in the bathroom while they robbed her store. The CJNG members told the Associate Claimant they now want [XXX] Mexican pesos and they would continue to steal merchandise until the claimants paid this amount. The CJNG members also told the Associate Claimant that if they ever made a complaint to the police again they would kill the claimants and their family. The CJNG members stole merchandise and the money from the cash register before they left.
The CJNG members continued to visit the claimants store throughout much of 2018. In [XXX] of 2018 the CJNG members came to the claimants’ store and threatened to kill the claimants and told them that this is no longer about the money but about the claimants having challenged the CJNG by not paying the money requested.
On [XXX], 2018 the Principal Claimant was dragged out of his car and badly beaten by members of the CJNG. The CJNG members told the Principal Claimant they were going to kill him and stole all of the Christmas presents that were in his car.
In [XXX] of 2019 members of the CJNG ransacked the claimants’ store and the claimants ultimately arranged to sell the business and merchandise that was left.
In [XXX] of 2019 the claimants visited the Principal Claimant’ s family in Michoacan and on [XXX], 2019 the Principal Claimant received text messages from members of the CJNG asking him if he thought this would end just because they went to Michocan. The Principal Claimant’s mother purchased the family plane tickets to travel to Canada on [XXX] 2019 to disappear for a while.
On [XXX], 2019 the Associate Claimant’s mother told them not to come back to Mexico as members of the CJNG had been to their place looking for them and told her they would be paying attention and were not finished. Members of the CJNG visited the home of the Associate Claimant’s mother again in [XXX] of 2019 looking for the claimants.
Since coming to Canada, the Associate Claimant has started receiving text messages from members of the CJNG threatening death to the claimants and including pictures of dead and tortured bodies. These threats have continued as to as recently as a month prior to the hearing of this matter.
[9] The panel finds that the claimants’ have established a subjective fear of harm by the CJNG in Mexico.
[10] The objective evidence of country condition in the National Documentation Package (NDP) for Mexico supports the claimants’ allegations. In 2015 the Mexican government declared the CJNG one of the most dangerous cartels in the country and one of two with the most extensive reach. In October of 2016 the US Department of Treasury names the CJNG as one of the world’s most prolific and violent drug trafficking organizations. The CJNG’s reputation for extreme and showy violence continues in 2019, including 19 bodies found on display m Michoacan, some of which were dismembered and others that were hung from overpasses.3
[11] The panel therefore finds that the claimants have established that they would each face a personalized risk to their life or of cruel and unusual treatment or punishment that is not faced generally by others in their country.
State Protection
[12] Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption, the onus is on the claimant to establish on a balance of probabilities through clear and convincing evidence that their state’s protection is inadequate.
[13] The claimants indicated that they did approach the police for assistance but were not provided with any assistance or protection.
[14] Overall, the evidence regarding state protection in Mexico is mixed:
According to item 7.18 of the NDP, in addition to federal police, Mexico had 382,277 police personnel as of 2015, as well as additional soldiers engaged in law enforcement activities4. According to item 9.11 of the NDP, these officers are arresting individuals who commit crimes and such individuals are being successfully prosecuted by the court system; there are presently more than 229,915 prison inmates in Mexico, with about 60% having been convicted of a crime, and the rest in pre-trial detention pending a trial or sentence.5
The US DOS’ report at Item 2.1 of the NDP explains that “organized criminal groups were implicated in numerous killings, acting with impunity and at times in league with corrupt federal, state, local, and security officials.”6
The Victimology of Extortion report from Rice University found at item 7.16 of the National Documentation Package indicates that various levels of government in Mexico are “incapable or unwilling to protect its citizens and often collaborate with the organized crime groups to further their criminal endeavors”. The report describes the Mexican government as being “willfully blind and permissive of criminal activity” and reiterates that in many cases the state has become a “partner in crime” with several criminal organizations or cartels.7
An August 2019 Response to Information Request found at item 7.15 of the NDP indicates making a complaint to a state authority against a gang “would lead to pressure to drop the complaint and ‘almost certainly’ lead to death if the individual did not comply.”8
[15] Upon consideration of the evidence as a whole, the panel finds that the presumption of state protection has been rebutted. Certainly, the state is not entirely ineffective and is able to provide some protection to some of its citizens. However, given the claimants’ own experiences and the country condition evidence before it, the panel finds that the state is either unable or unwilling to provide adequate protection to the claimants.
IFA
[16] In Rasaratnam v. Canada,9 the Federal Court of Appeal held that, with respect to the burden of proof, once the issue of an internal flight alternative (IFA) was raised, the onus is on the claimant to show that she does not have an IFA. To find a viable IFA, the panel must be satisfied that (1) there is no serious possibility of the claimant being persecuted or, on the balance of probabilities, a danger of torture or subjected to a risk to life or cruel and unusual treatment or punishment in the proposed IFA and (2) that the conditions in that part of the country are such that it would be reasonable in all the circumstances, including those particular to the claimant, to seek refuge there.
[17] The first question is whether the claimants would be safe in proposed IFA. At the outset of the hearing the panel identified that IFA was in issue and proposed the IFA locations of Campeche City and Mérida.
[18] When the claimants were asked if they could live in either of the proposed IFA locations they said they do not believe they can be safe anywhere in Mexico as the entire country is controlled by cartels. When asked specifically about whether members of the CJNG could find them in Campeche City or Mérida the Principal Claimant said the CJNG can find anyone within the republic of Mexico and that the cartel may track them through their relatives. When asked about how the CJNG would be able to find them in the IFA locations, the Principal Claimant said that that the CJNG was able to find them in Michoacan and even in Canada. When asked for details regarding the motivation of the CJNG to find them, the claimants both said that this is no longer just about money and that the CJNG believes that the claimants have mocked them and made a fool of them by not paying them the money they demanded and being able to escape without being harmed.
[19] The panel finds that the claimants have provided sufficient evidence to establish that the agents of harm in their case would have the means and motivation to find them in Campeche City or Mérida. In coming to a decision, the panel has considered the CJNG’s size, its area of operation, and its level of interest in the claimants.
[20] The CJNG is not present in Campeche City or Mérida, as indicated in the 2019 Stratfor Global Intelligence map in the NDP,10 however the NDP describes that a group such as the CJNG could leverage corrupt officials in another location or utilize “strategic alliances” with other groups to locate someone if sufficient interest exists.11 According to the NDP, it is possible for cartels to track people outside of their areas of operation; the common motivation to do so being something the magnitude of “a large debt or a personal vendetta”.12
[21] Campeche City and Mérida are both over [XXX] km and about a [XXX]-hour drive from where the claimants lived in Guadalajara. However, the agents of harm have shown they were able to track the claimants to the home of the Principal Claimant’s mother in Michoacan, and have even managed to locate them in Canada to continue the threats. The panel finds that the CJNG’s persistent interest in the claimants, including the very recent threats received in Canada, support an ongoing vendetta by the CJNG that would reach the magnitude necessary for the CJNG to have sufficient interest in using their ability to track the claimants outside of their area of operation.
[22] On the evidence before it, the panel finds on a balance of probabilities the claimants are at risk to life or cruel and unusual punishment throughout Mexico and that the claimants therefore have no viable IFA.
CONCLUSION
[23] The panel finds that the claimants have satisfied the burden of establishing on a balance of probabilities, they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon return to their country. The panel therefore accepts their claims.
(signed) Jacqueline Gallant
February 11, 2020
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, November 13, 1996.
3 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.2: Mexico: Organized Crime and
Drug Trafficking Organizations, United States Congressional Research Service, 15 August 2019.
4 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.18: Criminality, including organized crime; state response, including effectiveness; protection available to victims, including witness protection (2015 – July 2017), Immigration and Refugee Board of Canada, 21 August 2017. MEX105951.E.
5 Exhibit 3; National Documentation Package, Mexico, 30 August 2019, tab 9.11: Criminal Procedure Reform in Mexico, 2008-2016. The Final Countdown for Implementation. University of San Diego. Justice in Mexico Project. Octavio Rodriguez Ferreira; David A. Shirk. October 2015.
6 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 2.1: Mexico. Country Reports on Human Rights Practices for 2018, United States. Department of State, 13 March 2019.
7 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.16: The Victimology of Extortions in Mexico, Rice University. James A. Baker III Institute for Public Policy, October 2016.
8 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltran Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017 – August 2019), Immigration and Refugee Board of Canada, 15 August 2019. MEXI06302.E.
9 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
10 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.2: Mexico: Organized Crime and Drug Trafficking Organizations, United States Congressional Research Service, 15 August 2019.
11 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltran Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017 – August 2019), Immigration and Refugee Board of Canada, 15 August 2019. MEX106302.E.
12 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, Item 7.15: Drug Cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltran Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico; Immigration and Refugee Board of Canada. 15 August 2019. MEX106302.E.