2023 RLLR 1

Citation: 2023 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: February 1, 2023
Panel: Katherine Whitelock
Counsel for the Claimant(s): Daniel Ortiz-Rojas
Country: Mexico
RPD Number: TB9-00335
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: I am ready to deliver my decision and reasons in the claim of XXXX XXXX XXXX, who I will call the claimant. The claimant is a citizen of Mexico and claims refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act or IRPA. I have considered and applied Guideline 4, Gender Considerations in Proceedings Before the Immigration and Refugee Board in my analysis and reasons.

DETERMINATION

[2]       I find the claimant is a Convention refugee.

Administrative Issues

[3]       I note, first of all, the claimant’s claim was originally joined to that of her mother, who I will call GR (ph), and her brother, who I will call AC (ph). GR and AC separately obtained permanent resident status in Canada via other means through the special (inaudible) application stream initiated during the COVID-19 pandemic, and they consequently withdrew their claims for refugee protection in late 2022. The claimant’s claim was, however, and remains subsidiary to the allegations made by GR. GR attended the hearing as a witness. Given the consideration that the vast majority of events in the claimant’s allegations occurred to GR and not the claimant herself, and GR was available to provide testimony, I proposed that I vary the order of questioning to question first GR, and then the claimant. Counsel agreed on behalf of the claimant that this was prudent. Accordingly, I have exercised my power under RPD Rule 70(b) to change the requirements of a rule after giving the party notice and opportunity to object, to vary the standard order of questioning indicated by RPD Rules 10(1)(5) and (6) and also limiting the questioning of the claimant herself.

ALLEGATIONS

[4]       The facts and events alleged in support of the claim are set out in the claimant’s Basis of Claim form, attached narrative, and amended narrative set out at Exhibits 2 and 4. To summarize, GR and her family, meaning the claimant and AC, lived in Morelia, Michoacán. GR began working for the XXXX XXXX XXXX in 2006 in various XXXX positions throughout the areas (inaudible). In the course of this employment, she observed irregularities and records that suggest widespread corruption and financial fraud. After a change of government in 2015, a new XXXX of (inaudible), who I will call VL (ph), and new XXXX XXXX, who I will call RO (ph), were appointed as GR’s superiors. She found RO was particularly misogynistic towards her in the workplace.

[5]       From 2016, GR began having difficulties at work, particularly that her access to records she required to fulfill her requests from XXXX was revoked. Soon after that, she began receiving threatening anonymous calls warning her to cooperate and do as she was told, and consequently changed her phone number twice. GR soon gathered new management had been installed to assist in easing the new XXXX XXXX’s plans for corruption by arranging for his own companies to be awarded XXXX XXXX.

[6]       GR’s experiences worsened further in 2018, when RO and VL hid or kept necessary information from her and directed her to lie to XXXX. Additionally, RO had been consistently sexually harassing GR at work. In XXXX 2018, this worsened as well in an instant where RO summoned her to his office to grope her and complained that she did not, “Get along” with him like she did with other members of management. She complained to VL, who was similarly misogynistic and dismissed RO’s behaviour as acceptable and expected. After this, the sexual harassment increased dramatically.

[7]       At the end of XXXX 2018, VL threatened to not renew GR’s contract that had otherwise been done regularly without objection until that point if she did not, “Cooperate.” In XXXX 2018, GR filed an official sexual harassment complaint. She was unable to attest — convince anyone to attest as a witness to RO’s behaviour, as her coworkers were fearful to become involved. And to the best of her knowledge, nothing was done. After this, GR received an anonymous call falsely claiming to have kidnapped the claimant and threatening the family further if GR did not withdraw her complaint and allow the XXXX to be blocked, prompting her to again change her phone number.

[8]       In XXXX 2018, GR’s contract was not renewed, and therefore she was terminated without cause or explanation and filed an unjust dismissal lawsuit. Following that, she began receiving further anonymous threat calls at her new phone number from persons claiming to be with the Cartel Jalisco Nueva Generación, or CJNG. Indeed, in one (1) occasion XXXX 2018, she was visiting property out of town she inherited from her father in the community of XXXX XXXX XXXX, Michoacán. She observed that she was being followed around in a vehicle. The friends accompanying her believed it was likely members of the local CJNG, and GR decided to quickly return to Morelia. While she was on that trip, the claimant and AC received a threatening call from persons who said they had kidnapped her and demanded a ransom. They only learned that GR was safe when she arrived home.

[9]       In XXXX — on XXXX XXXX, 2018, the claimant was walking home when she was attacked by two (2) men in a motorcycle. Punched her in the face and threatened that next time they would kill her if her mother did not shut up. There was also an instant where the claimant’s brother, AC, was attempted to be kidnapped while working at his job at a XXXX in town. GR retained a lawyer who advised throughout late 2018 that she could file criminal complaints against persons involved at her old job, but the process would be lengthy and likely put the entire family in further danger due to official corruption and police collaboration with cartels. She again consulted the lawyer after the incident where the claimant was assaulted on the street but decided not to proceed with a complaint and, after the last time speaking with the lawyer, made arrangements to leave Mexico.

[10]     The family arrived in XXXX 2018 and initiated claims for protection several weeks later. As noted above, GR and AC then subsequently withdrew their claims in 2022 after obtaining permanent resident status in Canada by other means. The claimant herself continues to fear being targeted by the agents of persecution who threatened her mother, but also herself and AC as children.

ANALYSIS

Identity

[11]     The claimant’s personal identity and Mexican nationality were established based on a copy of her Mexican passport and her testimony. I am satisfied on a balance of probabilities that the claimant has established her identity.

Nexus

[12]     As described in the claimant’s narrative recounting GR’s narrative, GR and her children were evidently targeted both because of GR’s refusal to take part in corruption, and in retribution for GR pushing back against and filing an official complaint about ongoing sexual harassment in her workplace. The former has — reason and has no nexus to the Convention, as honest persons who decline to engage in criminal activity is not a particular social group with an changing or immutable characteristic. However, on the basis of the allegations, it is clear to me the harassment, threats, and violence experienced by GR and the claimant do have a gendered component.

[13]     Per the courts in the cases of Asghar – that is A-S-G-H-A-R – 2005 FC 768, and Gonzalez, G-O-N-Z-A-L-E-Z, 2002 FCT 345, where the primary alleged victim of persecution does not have a nexus to the Convention, such as an – the target of a purely personal criminal vendetta, a derivative claim based on familial connection which is, “In no way related to discrimination or fundamental human rights”, per Gonzalez, will not have nexus either. However, conversely, the family member of someone targeted in such a way can have access to the Convention. Notwithstanding, the claimant herself was not directly subjected to sexual harassment in the workplace or targeted for refusal to cooperate with corruption. She is a woman and her mother’s immediate family member, and I am satisfied the allegations indicate that she was targeted for harm because of gender, at least in part. She therefore has nexus to the Convention as a member of a particular social group, and I accordingly assess the allegations under both sections 96 and 97(1)(b) of the IPRA.

Credibility

[14]     Per the case of Maldonado, where the claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their truthfulness. As noted above, I have also considered and applied Guideline 4 on Gender Considerations in Proceedings Before the Immigration and Refugee Board, which offers guidance with respect to the application of a trauma-informed approach to proceedings. The Guidelines note that an individual who has experienced trauma may have certain difficulties in presenting their case, including recalling specific times, dates, and locations, recounting events in chronological order, and even recalling certain events in full. I considered that the claimant and GR testified in a clear, straightforward, spontaneous manner and that the testimony was consistent with all the documentary evidence before me. Accordingly, on balance of probabilities, I find that the claimant and GR were credible witnesses as to their experiences, and therefore I believe that the accounts of being targeted for threats, harassment, and violence by unknown CJNG-affiliated persons were truthful and reliable.

[15]     I reviewed also the claimant’s disclosure in Exhibit 4, much of which relates to establishing GR’s employment in the circumstances. For instance, there is a reference letter from a former colleague attesting to her work with the XXXX XXXX, and the entire originating statement of claim in her wrongful dismissal action against the XXXX as prepared by her lawyer, who I will name MO (ph), here. MO has also provided two (2) letters from XXXX 2018 and XXXX 2023, recounting how GR sought legal advice on this matter, as well as even considering a criminal complaint. MO does, as indicated in the claimant’s narrative, state that this would be a difficult and likely counter-productive effort that would put the family in more danger. The claimant has additionally provided documentation of the physical attack on her in XXXX 2018, including photographs, medical report, and XXXX report. And there was also a letter from AC, with his own account of the incident where he was targeted for kidnapping in 2018. I have no concerns with any of this documentary evidence and consider that it generally corroborates the claimant’s narrative on this basis, as well as the testimony of both herself and her mother, GR. I find on a balance of probabilities the claimant has established a subjectively well-founded fear of persecution.

Objective Basis

[16]     Gender-based violence is exceptionally common in Mexico. Documents 5.10, 2.1, and 2.2 of the National Documentation Package for Mexico all discuss the thousands of killings of women reported every year throughout the country, many of which are specifically investigated as femicides. Per Document 5.21, femicide, that is to say the intentional murder of women because they are women, is closely linked to traditional Mexican culture such as the notion of machismo, wherein men believe they are entitled and required to resort to physical violence to assert control over women. Indeed, “Machismo culture increases the likelihood that Mexican women will become victims of physical abuse. The more a situation escalates, the more likely it is that the abuse will result in femicide.” Similarly, Document 5.23 observes that a 2016 survey found that nearly 44 percent of women responding reported being physically, emotionally, and/or sexually abused by a partner.

[17]     In Document 2.5, a 2018 report of the UN High Commissioner for Human Rights, concern is noted for the, “Very high number of femicides done in Mexico and the level of impunity” the country experiences. Indeed, Document 5.6 blames this increasing level of arbitrary violence against women to the fact that men targeting women are often granted effective impunity by Mexico’s judicial system. The likelihood of perpetrators being brought to justice is very low, regardless of any context or evidence found. The evidence indicates also that municipal authorities have covered up and even facilitated violence against women by refusing to conduct adequate investigations.

[18]     With regards to the CJNG, per Document 7.2 of the NDP, that cartel is based in the State of Jalisco and were originally known as the, “Zeta Killers”. In 2015, the Mexican Government designated the CJNG as one (1) of the most dangerous in the country, and one (1) with a national reach as they are known to have a presence in at least 27 out of 32 Mexican states. With regards to how women are treated by cartels, per NDP Item 5.20, gang culture is a significant factor in organized crime related femicide. Women are considered disposable, and violence committed against them represents gang cohesion and masculinity. The evidence describes the underworld of organized crime as very subject to that machismo I mentioned about, with patriarchal and sexist undertones.

[19]     Further, per NDP Document 7.8, cartels may be highly motivated to track and retaliate against individuals who they believe might have gone to authorities as cooperative informants or witnesses, or anyone with, “Privileged or sensitive information about their activities”. I note in this regard that GR did indicate that she had a great deal of information with regards to the corrections she observed during her work with the XXXX XXXX. And again, per Document 7.8, if a cartel with national reach has the motivation to find a person, they generally can, including with the assistance of allied corrupt officials. Sources in that document are indicated to vary, but claim that somewhere between 60 to 80 percent of police forces are fully controlled or substantially influenced by organized crime in this manner.

[20]     The claimant’s documentary disclosure in Exhibit 4 similarly reflects this context with a number of recent newspaper articles from 2022 and 2023 concerning femicides and other forms of violence against women in Mexico. It is indicated to be an ever-growing problem which has grown alongside official corruption. There are also several articles about the violence and reach of this CJNG. Given the claimant and her mother’s credible testimony and this corroborative documentary evidence, I accept on the balance of probabilities that the fear of persecution on the basis of gender is both subjectively and objectively well-founded.

State Protection/Internal Flight Alternative

[21]     I consider that it is well-established with evidence from the National Documentation Package that there is no effective state protection with regards to violence against women in Mexico. According to Document 7.22, “Continual corruption, weakness, and lack of confidence in Mexican law enforcement, particularly of local and state police forces but also the federal police, have created a bedrock climate of impunity.” Per Document 2.4, no meaningful attempts have been made to protect local populations from the violence that occurs daily throughout the country, and per Document 2.3 it is indicated once again that Mexican authorities routinely fail to investigate crimes or provide justice for victims due to rampant corruption and complicity with criminals.

[22]     Item 5.10 indicates further that the inefficiency of judiciary institutions in this regard discourage many women from either making an initial complaint or going through the process. Sometimes, this is due to the institutions having an overload of work, other times because of a lack of training, and other — many other times it is because the institutional agents themselves share these traditional macho values. As a result, punishment reparation processes simply wear down complainants by asking them to devote time and resources (inaudible) unnecessarily complicated procedures, which then result in procedural failures (inaudible) invalidating the claimant’s complaints. In many cases, even those who deliver justice side with the attackers. Even more so if the latter have political power or influence, which results in even more impunity. Further claimed in that document, the New York Times reports that the law enforcement officials can be passive, complicit, or sometimes even actively abusive towards women who try to report violence that they experience.

[23]     Such attitudes are pervasive throughout society with even President Andrés Manuel López Obrador, popularly known as AMLO, insistently denying the extent of the problem and declaring against all evidence that, “Mexican women have never been as protected as now”, per Document 4.6.  He has similarly publicly claimed, per Document 5.6, that 90 percent of all 911 calls concerning gender-based violence are false. I note also in this regard GR’s reported experiences in attempting to pursue the, “Proper” way of seeking justice through courts and other authorities. She reported that her sexual harassment complaint was ignored, and her refusal to participate in corruption resulted in her being targeted for threats and violence, including against her family. Further, after that point she sought legal advice and was told that it would be fruitless, and would even likely put the family in more danger, to make a criminal denunciation.

[24]     Given this and the extensive objective evidence I have cited above, I find on a balance of probabilities that the claimant would have no adequate state protection if she returned to Mexico. The presumption is thoroughly rebutted. The agents of persecution would have effective impunity to continue targeting the claimant, and did in fact indicate in their last encounter they intended to kill her.

[25]     I considered also the matter of internal flight alternative. In this respect, I note that the agents of persecutions include persons who were or – sorry, are or were more recently XXXX XXXX XXXX XXXX XXXX who would more likely than not have access to some kind of confidential data, and who I have accepted as credibly established to be allied with one (1) of Mexico’s most powerful cartels. As I have indicated above, the objective country conditions outlined in Document 7.8 suggest the CJNG would be motivated to continue pursuing the claimant with regards to GR impeding the free exercise of (inaudible) in the XXXX XXXX XXXX XXXX, and also having the audacity to object to her corrupt superior sexual harassment. And if they have that motivation, they would be able to track her down. On a balance of probabilities I therefore find the claimant would continue to face a serious possibility of persecution wherever she might relocate in Mexico. And given this, the Rasaratnam test would fail at the first prong. The claimant would have no viable IFA.

CONCLUSION

[26]     Based on the totality of evidence before me, I find the claimant has established a subjectively and objectively well-founded fear of persecution on the basis of gender in Mexico. There is a serious possibility of harm on a forward-looking basis. Further, country conditions in the claimant’s own evidence and testimony, as well as the evidence and testimony of her mother GR, lead me conclude that the claimant would have neither access to adequate or effective state protection, nor a viable IFA in Mexico. This claim is therefore accepted.

——— REASONS CONCLUDED ———