2023 RLLR 211
Citation: 2023 RLLR 211
Tribunal: Refugee Protection Division
Date of Decision: November 12, 2023
Panel: Matthew Stumpf
Counsel for the Claimant(s): John W Grice
Country: Mexico
RPD Number: TC3-27428
Associated RPD Number(s): TC3-21989, TC3-21991, TC3-21992, TC3-21993, TC3-21994, TC3-21995, TC3-27427, TC3-27431
ATIP Number: A-2024-01133
ATIP Pages: 000001-000011
DECISION
[1] XXXX XXXX (the Principal Claimant), and XXXX, XXXX, XXXX, XXXX, and XXXX (the five Minor Claimants), citizens of Mexico, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1
[2] The Principal Claimant was appointed as the designated representative for the Minor Claimants.
ALLEGATIONS
[3] The Claimants allege a prospective risk of harm at the hands of the Jalisco New Generation Cartel (CJNG) in retaliation for the Principal Claimant’s past work as a
DETERMINATION
[4] I find that the Claimants are persons in need of protection as contemplated by section 97(1) of IRPA and therefore accept their claims.
ANALYSIS
Identity
[5] I find on a balance of probabilities that each of the Claimants has established their personal and national identity as a citizen of Mexico through the identity documents filed, namely their passports.2
Credibility
[6] In claims before the RPD, there is a presumption that sworn testimony is true unless there is valid reason to doubt its truthfulness. I found the testimony of the Principal Claimant to be consistent, compelling, and genuine with respect to the key elements of these claims.
[7] The Principal Claimant testified to his employment as a XXXX. His duties consisted of Guadalajara and other municipalities of Jalisco, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He was XXXX XXXX XXXX XXXX. He explained that he had previously been involved in XXXX XXXX XXXX XXXX XXXX XXXX XXXX which led to XXXX XXXX members of the CJNG in 2020 and 2021. As a result of these activities, the Principal Claimant alleged he was known to the CJNG.
[8] In XX 2022, the XXXX received complaints regarding m1ssmg community members that were suspected to have been victims of the CJNG. The complaints alleged that these bodies were located in a CJNG-controlled area on the outskirts of Guadalajara called Tlajomulco de Zuniga. As a result of these complaints, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX as they searched homes in this area for these bodies. They discovered some of the bodies they were looking for and XXXX XXXX XXXX XXXX XXXX XXXX from the CJNG. This was a XXXX as they had over 250 homes to check and only processed a few per day between the various XXXX involved.
[9] On XX XX, 2022, the Principal Claimant received a phone call from an unknown number telling him to stop working in that area or he would end up just like the other bodies. He said they knew where he lived and had also mentioned his girlfriend and sister. He stated that he received another phone call and several text messages a few days later detailing where his children went to school and saying this would be his last warning.
[10] The Principal Claimant described how he attempted to report this to the Fiscalia by filing a complaint and informing XXXX. He stated that they did send patrol vehicles to his home to park outside temporarily and knock on the door to check on him, however they only stayed for a few minutes before moving on. The Principal Claimant also testified that, XXXX XXXX XXXX, he also had concerns about whether any officers sent to protect him could have ties to the CJNG. The Claimants began to notice a vehicle with armed individuals frequently stationed near their home and sometimes close to the children’s school. The Principal Claimant decided to resign from the XXXX on XX XX, 2022.
[11] On XX XX, 2022, the Principal Claimant received a call from the CJNG saying that they knew he had resigned from the XXXX and that they wanted to pay a visit to his home. The Claimants immediately packed up their things and went into hiding, first with the Associate Claimant EGG’s parents and afterwards with the Principal Claimant’s mother.
[12] The Claimants provided supporting documents that corroborate the Principal Claimant’s testimony, including: screenshots of instructions and updates he received related to the XXXX XXXX in Tlajomulco de Zuniga and letters of support from the Principal Claimant’s mother, the Principal Claimant’s half-brother, and the Associate Claimant EGG’s parents.3 These documents reliably substantiate various points of the Principal Claimant’s testimony about his XXXX work and the Claimants’ life in hiding in XX 2022 with no material inconsistencies. I therefore attach them full weight.
[13] Accordingly, I find that the key allegations of the Claimants as summarized above have been credibly established on a balance of probabilities.
Personalized Prospective Risk Not Faced Generally
[14] The NDP evidence shows that the CJNG is a well-organized, aggress1ve, and violent criminal group present in most of the Mexican states, and one of the largest and most dangerous criminal groups in the world.4 The CJNG is known for its “aggressive use of violence”, and activities of the CJNG include human trafficking, homicide, forced disappearances, and other forms of extreme violence.5 The CJNG is reported to have the most operational capacity and is the only cartel, apart from the Sinaloa cartel, to have a national presence.6 The NDP lists the Claimants’ home state of Jalisco as one of the states mostly under drug cartel control, and that state police are always at risk of attacks by cartels.7 The Claimants also submitted several articles documenting the attacks made by cartels against state police, and the corruption and ineffectiveness of security forces in Mexico.8
[15] As part of my analysis, I must assess the nature, basis and degree of risk faced by the Claimants. I must then compare the nature and degree of the risk faced by the Claimants with the nature and degree of risk faced generally by others from Mexico.
[16] I accept the vast capabilities, violent activities, and aggressive nature of the CJNG as outlined above. The Claimants fear a future risk of death or serious harm from these criminal organizations. This constitutes the nature of risk faced by the Claimants. The basis for this risk is the Principal Claimant’s work as a XXXX which included XXXX clients and members of the CJNG, past XXXX duties in relation to the CJNG’s drug operations, and most recently, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.
[17] The degree of risk faced by the Claimants is significantly higher than others in Mexico, both in nature and degree. While a general risk of criminality can be said to be present in Mexico, the general public faces a far less tangible and far more remote risk than the Claimants. Unlike the Claimants, the general public does not face an imminent risk to their life as a retaliation measure against past XXXX on cartel operations. The persistent threats made by the CJNG demonstrate a motivation to harm each of the Claimants for the actions of the Principal Claimant. I find these threats constitute a repeated, linked, and escalating personal targeting of the Claimants by the CJNG, and that this sufficiently distinguishes the risk they face from the generalized risk faced by others in Mexico.
[18] Accordingly I find, more likely than not, that the Claimants credibly would be personally subject to a prospective risk to life at the hands the CJNG should they return to Mexico. The risk they face is personalized and elevated relative to that of the general population due to the Principal Claimant’s past activities as a XXXX and the series of threats made by members of the CJNG to harm them.
State Protection
[19] States are presumed to be capable of protecting their citizens except in situations where the state is in a state of complete breakdown.9 The Claimants must rebut this presumption with clear and convincing evidence of the state’s inability to protect its citizens for their claims to succeed. I find that the objective country evidence successfully rebuts this presumption and serves as clear and convincing evidence that adequate state protection is not available to the Claimants in Mexico.
[20] The NDP evidence indicates that police forces in Mexico lack human and material resources to properly investigate crimes and that for all murders registered between 2010 and 2016, 94.8% of cases had no suspect facing charges.10 According to the 2019 National Survey on Victimization and Perception of Public Safety, 93.2% of all crimes committed were either not reported or not investigated.11 The NDP also states that 80% of police forces are controlled by criminals, that almost 60-70% are corrupted by organized crime, and that organized crime has infiltrated local police and politicians.12 Other sources indicate that police at all levels (local, state, and federal) play a role in facilitating illegal businesses, working for organized crime, and systematically violating human rights.13 Additionally, 59.2% of respondents in a 2019 survey reported that they had experienced an act of corruption with public security authorities.14
[21] I note that a claimant is not required to risk their life to seek ineffective protection of a state merely to demonstrate that ineffectiveness.15 As discussed above, the Principal Claimant attempted to avail himself of state protection but remained skeptical both as to whether the resources allocated would have been sufficient to protect him and whether they would have been corrupt and already in the pocket of the CJNG.
[22] In light of the objective country documentation and testimony of the Principal Claimant as to his XXXX experiences with corruption in the XXXX, I find that the Claimants have rebutted the presumption of state protection and that adequate state protection would not be available to the Claimants in Mexico.
Internal Flight Alternative
[23] I raised the issue of IFA with the claimant at the outset of the hearing and proposed Merida as a viable IFA.
[24] The Federal Court of Appeal has held that there is a two-pronged test for assessing an IFA.16 The RPD must be satisfied that:
i. There is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or that it is more probable than not that the claimant would not be personally subject to a danger of torture or to a risk to life or risk of cruel and unusual treatment or punishment in the IFA; and
ii. The conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claim, for the claimant to seek refuge there.
[25] Both prongs of the test must be satisfied to find that a claimant has an IFA. Once the issue of IFA has been raised and potential IFAs have been identified by the RPD, the burden of proof then rests with the claimant to show that they do not have a viable IFA in those locations.
First Prong: Prospective Risk of Harm in the IFA
[26] The Claimants have not established a nexus to a Convention ground, nor have they adduced any evidence of a danger of torture at the hands of the state or by a public official. I will therefore focus the first prong of the IFA analysis on section 97(1)(b) and whether the Claimants have demonstrated that, more likely than not, they would be personally subject to a prospective risk to life or of cruel and unusual treatment or punishment in the IFA of Merida. For the reasons outlined below, I find that the Claimants have successfully established that they would and therefore that Merida would not be a viable IFA.
Sufficient Means to Track the Claimants
[27] The NDP evidence shows that the CJNG is a well-organized, aggressive, and violent criminal group present in most of the Mexican states, and one of the largest and most dangerous criminal groups in the world.17 The activities of the CJNG include homicide, forced disappearances, kidnappings, drug production, drug trafficking, drug trade, extortion, and extreme violence.18 Additionally, the CJNG has a reported presence in Merida, though the NDP notes that violence there is much lower and criminal groups attempt to keep a low profile.19
[28] The NDP further indicates that most organized criminal groups have the capacity to find an individual throughout Mexico if sufficiently motivated using family networks, private investigators, property records, GPS trackers, communications networks (e.g., cell phone towers), government databases, and police, army, government contacts, and alliances with other criminal organizations.20 The NDP goes on to state that for individuals targeted by criminal groups, relocation within Mexico is next to impossible.21
Accordingly, based on the objective NDP evidence for Mexico, I find that the CJNG has the capacity to track down the Claimants and harm the Claimants as they allege.
Sufficient Motivation to Track the Claimants
[29] The NDP evidence states that motivations for a criminal organization to track an individual down include large unpaid debts, stolen or lost money, personal vendettas or rivalries, political incentives, high-value personnel, people with privileged information about the criminal organization’s operations, perceived betrayal, and cooperation with the authorities.22 As stated above, XXXX are always at risk of harm.
[30] On the basis of the profile of the Principal Claimant as a XXXX XXXX with a history of XXXX XXXX XXXX XXXX XXXX and in support of the XXXX XXXX XXXX XXXX XXXX, as well as the series of threats made by the CJNG, I find that the CJNG has demonstrated both the means and the motivation to track the Claimants down to the proposed IFA, should they relocate to Merida. Accordingly the Claimants have established that, more likely than not, they would be personally subject to a prospective risk to life or of cruel and unusual treatment or punishment should they seek refuge there.
[31] As the Claimants have successfully challenged the proposed IFA under the first prong of the IFA analysis, I need not proceed with the second prong of the IFA analysis. I find that the Claimants do not have a viable IFA in Merida or indeed throughout Mexico.
CONCLUSION
[32] I find that the Claimants are persons in need of protection under section 97 of IRPA and accept their claims.
——— REASONS CONCLUDED ———
1 Immigration and Refugee Protection Act, SC 2001, c 27, as amended, ss 96, 97(l)(a) and 97(l)(b).
2 Exhibit 1.
3 Exhibit 7.
4 NDP, Mexico, Tab 7.7 at pp. 1-3: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated to track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021.
5 NDP, Mexico, Tab 7.7 at pp. 4-6: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated to track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021.
6 NDP, Mexico, Tab 7.7 at p. 1: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated to track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021; NDP, Mexico, Tab 7.18 at p. 8: Mexico: 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.
7 NDP, Mexico, Tab 7.53 at pp. 1, 5: Mexico: Profiles of individuals targeted and tracked by criminal organizations and cartels; tracking methods and motivations of criminal groups and cartels to track individuals (2021-August 2023). Immigration and Refugee Board of Canada. 1 September 2023.
8 Exhibit 6.
9 Canada (Attorney General) v Ward, [1993] 2 SCR 689 at 725.
10 NDP, Mexico, Tab 7.18 at p. 16: Mexico: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available ta victims, including witness protection (2018-September 2020). Immigration and Refugee Board of Canada. 21 September 2020.
11 NDP, Mexico, Tab 7.18 at p. 18: Mexico: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available ta victims, including witness protection (2018-September 2020). Immigration and Refugee Board of Canada. 21 September 2020.
12 NDP, Mexico, Tab 7.8 at p. 13: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG ta track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated ta track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021.
13 NDP, Mexico, Tab 10.2 at p. 3: Mexico: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available to report instances of corruption (20 I 7- September 2020). Immigration and Refugee Board of Canada. 1 September 2020.
14 NDP, Mexico, Tab 10.2 at p. 2: Mexico: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available to report instances of corruption (20 I 7- September 2020). Immigration and Refugee Board of Canada. 1 September 2020.
15 Canada (Attorney General) v Ward, [1993] 2 SCR 689 at 724.
16 Rasaratnam v Canada (Minister of Employment and Immigration), [1991] FCJ No. 1256, [1992] 1 FC 706 (CA).
17 NDP, Mexico, Tab 7.7 at pp. 1-3: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated to track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021.
18 NDP, Mexico, Tab 7.7 at pp. 4-6: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated to track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021.
19 NDP, Mexico, Tab 7.8 at pp. 2-4: Mexico: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatan state, State of Campeche, and Baja California Sur); the ability and motivation of organized crime groups and cartels active in other areas of Mexico, including the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generaci6n, CJNG), Sinaloa Cartel, and Los Zetas, to track and retaliate against people who relocate to these areas (2019-August 2021). Immigration and Refugee Board of Canada. 8 September 2021.
20 NDP, Mexico, Tab 7.8 at pp. 11-14: Mexico: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatan state, State of Campeche, and Baja California Sur); the ability and motivation of organized crime groups and cartels active in other areas of Mexico, including the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generaci6n, CJNG), Sinaloa Cartel, and Los Zetas, to track and retaliate against people who relocate to these areas (2019-August 2021). Immigration and Refugee Board of Canada. 8 September 2021; NDP, Mexico, Tab 7.48 at pp. 5-6: Mexico: Cartel recruitment practices, including information on whether taxi, truck or other transportation drivers are particularly targeted for forced recruitment by the cartels; whether there are consequences for refusing to be recruited; ability of the cartels to track recruits throughout the country (2020-August 2022). Immigration and Refugee Board of Canada. 25 August 2022.
21 NDP, Mexico, Tab 7.53 at p. 1: Mexico: Profiles of individuals targeted and tracked by criminal organizations and cartels; tracking methods and motivations of criminal groups and cartels to track individuals (2021-August 2023). Immigration and Refugee Board of Canada. 1 September 2023.
22 NDP, Mexico, Tab 7.8 at pp. 11-14: Mexico: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatan state, State of Campeche, and Baja California Sur); the ability and motivation of organized crime groups and cartels active in other areas of Mexico, including the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generaci6n, CJNG), Sinaloa Cartel, and Los Zetas, to track and retaliate against people who relocate to these areas (2019-August 2021). Immigration and Refugee Board of Canada. 8 September 2021; NDP, Mexico, Tab 7.48 at pp. 5-6: Mexico: Cartel recruitment practices, including information on whether taxi, truck or other transportation drivers are particularly targeted for forced recruitment by the cartels; whether there are consequences for refusing to be recruited; ability of the cartels to track recruits throughout the country (2020-August 2022). Immigration and Refugee Board of Canada. 25 August 2022.