Citation: 2021 RLLR 80
Tribunal: Refugee Protection Division
Date of Decision: November 25, 2021
Panel: Rupinder Nirman
Counsel for the Claimant(s): Marianne B Lithwick
Country: Mexico
RPD Number: TC0-02951
Associated RPD Number(s): TC0-03020 / TC0-03037
ATIP Number: A-2022-01778
ATIP Pages: N/A
REASONS FOR DECISION
[1] The principal claimant, XXXX XXXX XXXX XXXX, and the minor claimant, XXXX XXXX XXXX XXXX, the female claimant, XXXX XXXX XXXX XXXX claim to be citizens of Mexico, and are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
Joined Claims
[2] These claims were joined in accordance with Rule 55 of the Refugee Protection Division
(RPD) Rules.[2]
Designated Representative
[3] The principal claimant, XXXX XXXX XXXX XXXX was appointed the designated representative of the minor claimant.
ALLEGATIONS
[4] The facts and events alleged in support of the claim are set out in the claimants’ Basis of Claim (BOC)[3] forms. To summarize, the principal claimant fears for his and his family’s life by the hands of few corrupt police officers. The principal claimant started a XXXX in 2008, and four people came to the PC’s business and asked for derecho de suelo (payment to carry on a business). The PC was injured by one of the police officers in 2011. In 2012, the PC moved to Pachuca, Hidalgo, while his family remained in Mexico City. For four years, nothing happened, and the PC returned to Mexico City in 2018 and restarted the business. The PC was again threatened. In 2018, the PC’s wife and daughter was outside their home and some men attempted to kidnap the PC’s daughter.
[5] In XXXX 2019, the PC came to Canada. While in Canada, his wife and daughter saw people following them. The PC went back to Mexico and brought his entire family back on XXXX 2019. The claimants filed for refugee protection on February 5, 2020.
DETERMINATION
[6] Having considered the totality of evidence, I find that the claimant is a person in need of protection as he would be subjected personally to a risk to his life or a risk of cruel and unusual treatment or punishment or to a danger of torture should he return to Mexico under section 97(1) of the IRPA.
ANALYSIS
Identity
[7] The claimants’ personal identities and Mexican nationality was established based on certified true copies of their Mexico-issued passports in Exhibit 1 and their testimony. I am satisfied, based on a balance of probabilities, that the claimants have established their identity.
Nexus
[8] The PC ran a business and was targeted by corrupt police officer for extortion. The police officer demanded money for running the business. When the PC did not pay them, they targeted him and his family. The claimants were not targeted by reason of his race, nationality, political opinion, religion, or membership in a particular social group. I find, therefore, that there is no nexus to a Convention ground and that the claimant does not have a well-founded fear of persecution pursuant to section 96 of the IRPA. The claimant’ s allegations are more properly assessed under subsection 97(1) of the IRPA.
Credibility
[9] I find that the claimants were credible. The principal claimant provided details of the harm that he and his family experienced in a credible and consistent manner. He provided direct answers to the questions asked, with additional and spontaneous details. He was not overly pensive about his answers, nor was evasive when questioned. Furthermore, his evidence was free of material omissions or inconsistencies, and his testimony was consistent with his narrative.
[10] In presuming the claimants to be truthful, I find that there is no foundation to rebut that presumption and I accept all of the evidence of the claimant.
[11] The principal claimant stated that his problem started in 2008 when he was to pay derecho de suelo, a payment to carry on a business by four unknown people. The principal claimant did not pay the money to carry on his legitimate business. At that time that the principal claimant did not know that the people who threaten them were actually police officers. However, he later learned that truth. The principal claimant answered in a detailed and a straightforward manner without any embellishment. Therefore, I find on a balance of probabilities that the problems that the PC alleges did actually happen.
[12] In 2011, the PC was seriously injured by the police officer because he was not paying his dues to run the business. The PC was hit so hard that he lost one of his testicles due to the injury. The panel did not go into the detail of the injury as it was a sensitive and emotional topic. However, the claimant answered in detail about the circumstances that led to the police officers injuring the PC. The PC answered in a straightforward manner without any embellishment, and as such I find on balance of probabilities that he is a credible witness.
[13] The PC was asked about the incident in 2018 and 2019 when his wife and daughter was threatened to be kidnapped. The PC described the incident in detail and they were in line with his narrative. Therefore, on a balance of probabilities, I find the PC’s daughter and his wife were also threatened by the police officers for not paying the bribe money.
[14] The claimants provided corroborating evidence such as daughter’s school documents, supporting letter from friends and family, medical documents, psychiatric assessment, etc., in Exhibits 4 and 5. I give weight to these documents and they corroborate the claimants’ testimonies.
Reavailment to Mexico
[15] The PC came to Canada in 2019 by himself. I asked the PC that why did he go back if he was safe here in Canada. The PC stated that he thought that he was the problem and the police officers will not go after his family. However, while the PC was in Canada, there was an attempted kidnapping on the PC’s daughter. The PC stated that he went back to discuss with his wife the next steps, whether to move or leave the country. They decided to leave the country. The panel, on a balance of probabilities, find the PC’s response reasonable, and the panel is not making a negative inference regarding his reavailment. The PC was genuinely thought that his family would be safe without him, and once they were attacked his instinct was to go back and be with them.
The claimant faces a personalized risk, not faced generally by others
[16] I find that the clamant has established, on a balance of probabilities, that he and his family faced the above incidents occurred as alleged. I find, on a balance of probabilities, that the claimants’ faces a personalized risk that is different from the risk faced generally by other citizens of Mexico. I find that the claimant has established, on a balance of probabilities, that he faces a risk to life that is specific to him because of his reluctance to break the rules and pay the extortion money to the corrupt police officers. Accordingly, this claim is assessed under s. 97 of the Act.
Objective Evidence
[17] The evidence establishes, on a balance of probabilities, on objective basis for the claimant’s risk to life if he was to return to Mexico. The reading of the NPD, along with the claimant’s testimony shows that the corrupt police officers often collude with the cartel to extract money from the businesses.
[18] The NDP item 2.1 reports:
Significant human rights issues included: reports of the involvement by police, military, and other government officials and illegal armed groups in unlawful or arbitrary killings and forced disappearance; torture by security forces; harsh and life-threatening prison conditions in some prisons; arbitrary arrest and lengthy pretrial detention; violence against journalists and human rights defenders; serious acts of corruption.
[19] The NDP item 7.15 further states about how police help cartel to track people in Mexico.
The Assistant Professor stated that a large debt or a personal vendetta could motivate a gang to track someone outside their area, and that gangs can use “corrupt law enforcement agents” to obtain information about people they pursue.
[20] The NDP item 9.5 reports the following on corruption by the Police and Police in collusion with Carte in Mexico:
While both Mexico and the international community have been aware of the gravity of this crisis for some time, little attention has been directed at how the acts of corruption described, in part, here-notably, bribery of public officials and law enforcement officers by organized crime and the collusion it fosters contribute to atrocity crimes.
[21] The claimant has established an objective basis for his claim and his fears are objectively well-founded.
State Protection
[22] There is a presumption that a state is capable of protecting its citizens, except in situations where there is a complete breakdown. The PC was asked why he did not go to the police. The PC stated in a straightforward manner that the police officers told the PC that if he reported to the police, it would actually be reporting to one of them. The PC stated that the people who threatened and beaten him were police officers, and he did not want to take chances, and put his family’s life at risk by reporting to the police officers.
[23] The country documentation for Mexico indicates that, while Mexico does have laws in place which criminalizes official corruption, and even though, some corrupt police officers have been arrested, “the government did not enforce the law effectively.”[4] State agents that commit crimes, including the police, continue to enjoy impunity.[5]
[24] The NDP item 10.2 reports:
Similarly, an article by KPBS, a San Diego news service (KPBS n.d.), states that “[t]he federal government has said infiltration by organized crime is a problem in many police forces in Sonora and around the country”
The US Department of State’s Country Reports on Human Rights Practices for 2019 observes that “[t]here were credible reports of police involvement in kidnappings for ransom, and federal officials or members of the national defense forces were sometimes accused of perpetrating this crime.”
[25] Based on my review of the objective evidence, and also in consideration of the claimants’ own particular circumstances and the profile of the agent of persecution, I find that the preponderance of the evidence is clear and convincing and rebuts the presumption of state protection in the claimants’ particular circumstances. I therefore find, on a balance of probabilities, that the claimants have rebutted the presumption of state protection with clear and convincing evidence.
Internal Flight Alternative
[26] I have also considered whether a viable Internal Flight Alternative (IFA) exists for the claimants in Mexico. The police officers have shown a continued interest in the PC and his family. The PC stated that if he moves with his family to another state, the police will have resources to locate him. The NDP item 14.2 corroborates claimants’ claim and stated the following:
According to the website of San Luis Potosf’s Executive Secretariat of the State Council for Public Security (Secretariado Ejecutivo del Consejo Estatal de Seguridad Pública), Plataforma México is a national network that houses forensic databases used by public security personnel, administered by the federal General Coordination of the Secretariat of Public Security (Coordinación General de Secretaría de Seguridad Publica) (San Luis Potosí n.d.).
[27] Having considered all the evidence, I find that there is a serious possibility of risk to life throughout Mexico for the claimants in their particular circumstances, including in the IFA locations. A viable IFA does not exist for the claimants in Mexico.
CONCLUSION
[28] Having considered the totality of evidence, I find that the claimants are persons in need of protection as they would be subjected personally to risk to their life or risk of cruel and unusual treatment or punishment or to danger of torture should they return to Mexico under section 97(1) of the IRPA.
[29] Their claims are, therefore, accepted.
(signed) Rupert Nirman
November 25, 2021
[1] Immigration and Refugee Protection Act, S.C. 2001, c.27, sections 96, 97(1)(a) and 97(1)(b).
[2] Refugee Protection Division Rules (SOR/2012-256), Rule 55.
[3] Exhibit 2.1, 2.2, and 2.3.
[4] Item 2.1
[5] Ibid., at item 7.18.