Citation: 2022 RLLR 48
Tribunal: Refugee Protection Division
Date of Decision: August 11, 2022
Panel: Roberto Reis
Counsel for the Claimant(s): Amedeo Clivio
Country: Mexico
RPD Number: TC2-11224
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision for Refugee Protection Division in the claim of XXXX XXXX XXXX, a claimant of Mexico, who is claiming refugee protection pursuant to section 96 and 97 of the Immigration and Refugee Protection Act. The date is August 11, 2022.
Allegations
[2] The details of the claimant’s allegations are fully set out in his Basis of Claim form. To summarize, the claimant was threatened because of his family ties to his brother-in-law, an ex-police officer in the state of Veracruz, who has been persecuted and sworn to death by the cartel Jalisco Nueva Generacion, or CJNG. The claimant’s brother-in-law was responsible for the detention of an important member of the CJNG. After being released from jail for unknown reasons, the cartel started fierce persecution against the claimant’s brother-in-law and the claimant’s sister, who eventually fled to Canada, requested and were granted refugee protection.
[3] The claimant used to live with his sister and his brother-in-law. He also arrived in Canada on XXXX XXXX, 2019. The claimant did not make a refugee claim before because the cartel never threatened him. The situation changed in XXXX 2021, when the claimant was located on social media and personally threatened by the cartel. The claimant realized that returning to Mexico was not a viable option anymore. The claimant applied for refugee protection on November 19, 2021.
Determination
[4] I find that the claimant has satisfied the Board in establishing that he would face a serious possibility of persecution on a Convention ground, namely his membership in a particular social group, which is his family tries to a persecuted ex-police officer.
Identity
[5] I am satisfied with the claimant’s identity as a citizen of Mexico which established by his testimony and the copy of his passport in evidence.
Credibility
[6] The claimant was a credible witness and; therefore, I believe that he has alleged in support of his claim. The claimant testified in a straightforward, forthright, detailed manner. The claimant also provided extensive evidence of his allegations, such as personal documents, news articles, official documents and even a recent video with death threats against him and his family. He did not seem to exaggerate or tailor his evidence. In summary, his testimony was consistent with the other evidence on central aspects of his claim. I find no reason to doubt the truthfulness of the claimant.
Nexus
[7] To qualify as a refugee under the refugee Convention, an individual must demonstrate that they have a well-founded fear of persecution based on one of the five Convention grounds. From the totality of the evidence before me, I find the claimant has established a nexus to the Convention, namely membership in a particular social group, as he has family relating to an ex-police officer, particularly subject to harm from the cartel members in Mexico. Therefore, the claim was analysed under section 96 of the Immigration and Refugee Protection Act.
Well-Founded Fear of Persecution and Risk of Harm
[8] The National Documentation Package or NDP for Mexico states at Tab 7.2 that cartels are known to punish the person who does not collaborate or betray them. To analyse whether the claimant personally faces a serious possibility of risk to his life due to his family association, I considered the objective evidence regarding the CJNG and how it operates. According to country condition evidence, organized crime is pervasive in Mexico and is responsible for alarming high levels of violence. Mexico’s major drug trafficking organizations have become more fragmented recently, but many large cartels retain considerable power.
[9] NDP Tab 7.12 shows me that CJNG is Mexico’s major crime threat and appears to be expanding. The same reference further states that although CJNG has suffered some setbacks due to internal divisions and splintering, the group has maintained its dominance in Mexico.
[10] NDP Tab 7.18 shows that some people directly or indirectly related to cartels’ operation are particularly exposed to violence from criminal groups. Politicians, journalists and police officers are major targets and face more significant risks. As a family member of a persecuted ex-police officer, I find that the claimant is highly exposed to a vendetta from the cartel. The claimant has established on a balance of probabilities that he faces a serious risk of persecution if he returns to Mexico. Therefore, he has demonstrated a well-founded fear of persecution on a subjective and objective basis.
State Protection[HK1]
[11] The Panel has also considered whether the state protection is available to the claimant and concluded that it is not. There is clear and convincing evidence before me that the state is unable or unwilling to protect the claimant. It would be objectively unreasonable for the claimant to seek the protection of the state in light of his particular circumstances.
[12] In terms of state protection, Mexico’s local and state authorities are generally unwilling and unable to protect victims of gang violence. According to NDP Tab 7.22, ongoing corruption, weakness and the lack of confidence in Mexico law enforcement, particularly of local and state police forces, have created a sense of impunity and increased criminal violence. Despite the state’s attempt to eradicate drug trafficking and targeting top level gang leaders, these strategies have resulted in shifting alliances and the emergence of new gangs.
[13] According to Tab 2.3 and 2.4 of the NDP, state corruption and complacency with criminals are rampant. The Mexican Federal Statistics Agency estimates that 94% of crimes were unreported or not investigated, according to the NDP Tab 2.1. There were reports of some government agents complicit with the international organization of criminal gangs and low prosecution and conviction rates for these abuses.
[14] In the case (inaudible), I find the claimant produced extensive evidence of the lack of straight protection. Even for his brother-in-law, when he was working as a police officer in Mexico. It is logical to conclude that the state protection would not be forthcoming to the claimant in this particular case.
Internal Flight Alternative
[15] Finally, the Panel has considered whether a viable Internal Flight Alternative exists for the claimant in Merida, Yucatan as this issue was raised with him at the hearing. The claimant alleges that he would not be safe in Mexico in any location, as his agents of persecution could locate him throughout Mexico. The test for a viable IFA has two prongs. First, I must be satisfied that the claimant would not face a serious possibility of persecution and would not be personally subjected to a risk to his life of cruel or unusual treatment, punishment or danger of torture in the proposed IFA.
[16] Second, I must be satisfied that it would not be unreasonable in all circumstances for the claimant to seek refuge in the proposed IFA location. To perform the IFA test, I must analyse the cartel’s mean and motivation.
[17] On the issue of the cartel’s means, according to Tab 7.8 and Tab 3.5 of the NDP, a powerful cartel could use several tactics to locate a person of interest, such as having access to a national database through corrupt government officials. The NDP Tab 7.15 describes the strategic alliances that the cartels have forged with each other to extend their reach beyond their areas of operation. Considering the profile of the Jalisco cartel being the most influential cartel in Mexico at the moment, I find that there is a serious possibility that the cartel has the means to locate the claimant if properly motivated.
[18] On the issue of motivation, according to Tab 7.8 and Tab 7.15 of the NDP, a personal vendetta to the ones that refuse to collaborate with the cartels or are considered traitors could motivate a gang to track someone even outside their area of operation. The claimant testified and I believe him that the cartel has a strong vengeance wish against the claimant’s family due to his brother-in-law’s activity as a XXXX XXXX when XXXX XXXX XXXX XXXX XXXX XXXX, which the cartel sees as a form of betrayal. Considering previously cited sources, in the circumstances, I find that there is a serious possibility that the Jalisco cartel would be motivated to locate and murder the claimant due to his family ties to his brother-in-law.
[19] For the cited reasons, I find that there is a serious possibility that the Jalisco cartel has both the means and the motivation to pursue the claimant throughout Mexico. Therefore, the claimant does not have a viable IFA within the country. Since the first prong of the IFA test was not met, I will not discuss the second prong.
CONCLUSION
[20] For the preceding reasons, I find that that XXXX XXXX XXXX is a Convention refugee as defined in section 96 of the Act. Therefore, I accept his claim.
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[HK1]Note that this was originally not bolded in the Word doc received through the ATIP request