Citation: 2022 RLLR 32
Tribunal: Refugee Protection Division
Date of Decision: March 8, 2022
Panel: Kari Schroeder
Counsel for the Claimant(s): Alfonso Mejia-Arias
Country: Mexico
RPD Number: VC1-05483
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
REASONS FOR DECISION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX as a citizen of Mexico who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”).[1]
[2] In hearing and assessing this claim, I have considered and applied the Chairperson’s Guideline on Women Refugee Claimants Fearing Gender-Related Persecution,[2] which offers guidance in recognizing women as members of a particular social group and also with respect to other gender specific issues present in this claim.
ALLEGATIONS
[3] The claimant fears a man named XXXX XXXX “XXXX” who sexually assaulted her in XXXX 2019. He had been a customer at the XXXXshe worked at and prior to the assault he had been sexually harassing her. She alleges that he is involved in a criminal organization. The claimant reported the rape to the police the next day but nothing came of it and a police officer told her just to let it go. XXXX days after the assault, the claimant’s husband was beaten. They relocated to Puebla. In XXXX 2019, the claimant received threatening phone calls. In XXXX 2019, the claimant states that XXXX associates found her in Puebla and attempted to shoot at her and her neighbour’s car that she escaped into. The claimant travelled to Canada and claimed protection in February 2020.
[4] There was an application to join the claimant with her son but was denied as the claimant did not want to discuss the rape with her son present.
DETERMINATION
[5] I find that the claimant is a Convention refugee under s. 96 of the Act.
ANALYSIS
Identity
[6] I find that the claimant’s identity as a national of Mexico has been established on a balance of probabilities by her testimony and a copy of her Mexican passport.[3]
Credibility
[7] When a claimant swears to the truth of her allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness. In this case, I have found no reason to doubt the claimant’s truthfulness. She testified in a straightforward and convincing manner, answered all of the questions posed to her, and was able to speak out of chronological order about the events giving rise to her refugee claim in Canada.
[8] I have some documentary evidence to corroborate the allegations, most significantly a police report taken on the night of the assault as well as a letter from the claimant’s husband confirming he was assaulted two days after his wife’s assault and was told it was retaliation for reporting to the police. I also have letters from the claimant’s former colleagues at the restaurant, confirming that the agent of harm had been repeatedly harassing the claimant in the months leading up to the assault.
[9] In addition to these documents, the claimant testified spontaneously and in a detailed manner about the risks that she faces in Mexico. I thus find that the claimant is a reliable witness and I believe what she has alleged in support of her claim.
Well-Founded Fear of Persecution
[10] In order to satisfy the definition of a Convention refugee found in section 96 of the Act, a claimant must establish that he or she has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group or political opinion. In this case the claimant was a victim of sexual violence and was targeted because of her gender. I thus find that there is a nexus to the Convention ground of particular social group, namely women. I have therefore assessed this claim under s. 96 of the Act.
[11] The claimant testified that XXXX is a very dangerous man who was known to be part of a criminal organization. She did not know the name of the organization, however, included into evidence were screen shots of an anonymous facebook group that tries to identify and expose members of criminal organizations, due in part to the fact that police are helpless to do so. In this case XXXX repeatedly sexually harassed the claimant at the XXXXwhere she worked. She testified that although he was rude to other waiters, the focus of his advances were on the claimant. When she rejected his request to celebrate her birthday with him, he followed her with his friends from the restaurant, forced her into the vehicle, and raped her. I find that the claimant has established a subjective fear of returning to Mexico to face further sexual violence from the agent of harm.
[12] The objective evidence indicates that violence against women is a significant problem in Mexico. Sources indicate that the rate of femicides in Mexico has increased by 137 percent over the last five years, while homicides have comparatively increase by 35 percent over the same periods. Sources indicate that the number of femicides committed by organized crime groups is “on the rise” with some analyses indicating that 63 percent of femicides reported in March and April 2020 were connected to organized crime.[4]
[13] Organized crime femicide occurs in areas where there is a presence of “gang cultures”, which women are considered “disposable” and that violence against them represents “gang cohesion and masculinity.” Sources further state that organized crime culture is “very macho, patriarchal, with very sexist undertones” and that organized crime groups murder women because they are “seen as an object owned by the rival and, to cause damage, they kill their women.” A recent Response to Information Request cites a case where a woman was killed in her home by persons who broke in looking for her husband, their presumed target, who was not home at the time.[5] The objective evidence indicates that a number of criminal organizations operate in Mexico and that their “predatory” activities include extortion and kidnapping.[6]
[14] Considering all the evidence before me, I find that the claimant would face a serious risk of persecution were she to return to Mexico.
State Protection
[15] The next element in my analysis is whether there is adequate state protection for the claimant in Mexico. While there is a presumption of state protection, this presumption can be rebutted with clear and convincing evidence that protection would not be forthcoming to the claimant.[7]
[16] The objective evidence confirms that police corruption in Mexico remains a major problem. A recent Response to Information Request (RIR) on the subject emphasizes that corruption within the federal police and the armed forces “underpins state collusion with criminals.” According to sources cited in the RIR, “analyses of drug trafficking, organize crime and human rights violations also highlight the role of police at all levels – federal, state, local – in facilitating illegal businesses, working for organized crime, and systematically violating human rights.” There are credible reports of police involvement in a number of crimes, including kidnappings for ransom.[8]
[17] A 2017 article from InSight Crime on police corruption, including police affiliation with cartels and police effectiveness, states that “in Mexico, organized crime has deeply permeated police institutions” and reports that in most Mexican states local police “have been infiltrated by organized crime.” In a different article, InSight Crime further notes that an entire municipal police force in the municipality of Tehuacan in central Puebla state was disbanded due to allegations of corruption and links to organized crime. According to that source, the “wholesale suspension of an entire municipal police force demonstrates the level to which organized crime and corruption networks penetrate the state on a local level.”[9]
[18] Compounding the above, the country condition documents indicate that laws addressing violence against women are not effectively enforced. Sources indicate that there has been “systemic impunity” in terms of how gender-based violence is addressed, and note the “complicity, indifference, and mismanagement of cases” involving violence against women. The United Nations Committee on the Elimination of Discrimination Against Women, amongst other sources, has emphasized that there are “deep-rooted institutional, structural and practical barriers” which continue to hinder access to justice for women, including that officials within the criminal justice system, including law enforcement officers, hold “discriminatory stereotypes” and “limited knowledge” of women’s rights.[10]
[19] In this case the claimant reported the rape to the police, but nothing was down. They told her to not to pursue anything further. Her husband was then beaten XXXX days later when XXXX found out about the police report. In view of both the objective evidence, which indicates that authorities have been compromised by corruption, and that gender-based violence is committed with impunity, as well as the claimant’s testimony on her inability to access state protection, I find that the presumption of state protection has been rebutted.
Internal Flight Alternative
[20] The final issue is whether the claimant has a viable internal flight alternative (IFA) in Mexico. In order to determine whether an IFA exists, I must assess whether there is any location in Mexico in which the claimant would not face a serious possibility of persecution and whether it would be reasonable to expect her to move there.[11] At the hearing I canvassed whether the claimant would have an IFA in Merida. However, after considering the evidence, I find that the claimant does not have a viable IFA because I am satisfied that the agent of harm would have the motivation and means to pursue her throughout Mexico.
[21] With respect to XXXX’s motivation, I considered that he has not contacted or threatened the claimant or her husband in the two years since she left Mexico. Conversely however, XXXXtargeted her specifically and violently attacked her when she rejected his advances. I find that if he were to learn that the claimant had returned to Mexico, he would have the motivation to pursue her in another city.
[22] Further, XXXXwas able to find the claimant in Puebla, which is five hours away from Mexico. This is the case despite the fact that she changed her phone number. His associates tracked her from the market and shot at her. The objective evidence before me also states that if organized crime groups in other parts of Mexico are interested and willing to retaliate against people relocated in Merida, Campeche, Cabo San Lucas, or Mexico City, they could do it easily. According to sources, criminal groups are motivated to track certain individuals because they steal or lose money; due to personal rivalries or due to personal vengeance; perceived betrayal; or public exposition of relationships with public officials.[12]
[23] Further, although the claimant is married, her testimony was that she and her husband’s relationship has changed since she came to Canada, and she is not certain that he would relocate to Merida with her. She is currently working in Canada and sending money back to the children, as he is not able to entirely support them. In terms of relocating in Mexico as a single woman, the evidence before me establishes that low-income single mothers with children under 15 years of age face limited access and enjoyment of the right to food, as well as economic, social and cultural rights due to, among others, the “vulnerable income status in which they find themselves, the discrimination they have suffered in different sectors such as social, labour and family, unequal access to employment opportunities, as well as low-paid jobs. Women face “difficulties and discriminatory practices … when attempting to enter the labour market.[13]
[24] I therefore find that an IFA would be objectively unreasonable in the claimant’s circumstances.
CONCLUSION
[25] For these reasons, I find that the claimant is a Convention refugee and I accept her claim.
(signed) Kari Schoeder
March 8, 2022
[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, Ottawa, Canada, March 1993, updated November 1996.
[3] Exhibit 1.
[4] National Documentation Package, Mexico, 29 September 2021, tab 5.20: Women whose past partners are involved in criminal activities and implications for their safety (2019–August 2021). Immigration and Refugee Board of Canada. 27 August 2021. MEX200735.E.
[5] National Documentation Package, Mexico, 29 September 2021, tab 5.20: Women whose past partners are involved in criminal activities and implications for their safety (2019–August 2021). Immigration and Refugee Board of Canada. 27 August 2021. MEX200735.E.
[6] National Documentation Package, Mexico, 29 September 2021, tab 7.18: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available to victims, including witness protection (2018–September 2020). Immigration and Refugee Board of Canada. 21 September 2020. MEX200313.E.
[7] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
[8] National Documentation Package, Mexico, 29 September 2021, tab 10.2: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available to report instances of corruption (2017–September 2020). Immigration and Refugee Board of Canada. 1 September 2020. MEX200314.E.
[9] National Documentation Package, Mexico, 29 September 2021, tab 10.2: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available to report instances of corruption (2017–September 2020). Immigration and Refugee Board of Canada. 1 September 2020. MEX200314.E.
[10] National Documentation Package, Mexico, 29 September 2021, tab 5.20: Women whose past partners are involved in criminal activities and implications for their safety (2019–August 2021). Immigration and Refugee Board of Canada. 27 August 2021. MEX200735.E.
[11] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).
[12] National Documentation Package, Mexico, 29 September 2021, tab 7.8: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatán state, State of Campeche, and Baja California Sur); the ability and motivation of organized … Immigration and Refugee Board of Canada. 8 September 2021. MEX200732.E.
[13] National Documentation Package, Mexico, 29 September 2021, tab 5.7: Situation of single women and of women who head their own households without male support, including access to employment, housing and support services, particularly in Mexico City and Mérida (Yucatán) (2017-October 2019). Immigration and Refugee Board of Canada. 5 February 2020. MEX106364.E.