2023 RLLR 25
Citation: 2023 RLLR 25
Tribunal: Refugee Protection Division
Date of Decision: December 5, 2023
Panel: Kylee Carreno
Counsel for the Claimant(s): Kelly Harvey Russ
Country: Mexico
RPD Number: VC3-01787
Associated RPD Numbers): VC3-01788, VC3-01790
ATIP Number: A-2023-01721
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claims of XXXX XXXX XXXX XXXX (the principal claimant), XXXX XXXX XXXX (the associate claimant), and XXXX XXXX XXXX XXXX (the minor claimant) who are citizens of Mexico and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
[2] I heard these claims jointly pursuant to rule 55 of the Refugee Protection Division Rules.[2]
[3] I considered and applied the Chairperson’s Guideline 3 regarding child refugee claimants when appointing the principal claimant as the designated representative for the minor claimant—her child.[3]
[4] In conducting the hearing and rendering these reasons, I have considered and applied the Chairperson’s Guideline 4 which offers guidance on the gender-specific aspects of this claim. [4] I have also considered the Chairperson’s Guideline 8 which offers guidance on procedural accommodations and trauma-informed adjudication, as per counsel’s request prior to the hearing.[5]
[5] The principal claimant has also provided a XXXX report which I have considered when conducting the hearing and rendering my decision.[6]
ALLEGATIONS
[6] The full allegations are set out in the claimants’ Basis of Claim (BOC) forms and narrative.[7] The associate claimant and minor claimant’s claims are based on the same allegations outlined in the narrative provided by the principal claimant—their respective spouse and mother. In summary, the claimants fear the principal claimant’s ex-husband who physically, financially, and psychologically abused the principal claimant for many years when they were in a relationship, kidnapped the daughter she had with him and refused to give the daughter back to the principal claimant despite the principal claimant maintaining legal custody of her daughter, and threatened her with death. The principal claimant’s ex-husband is a member of the Cartel Jalisco Nueva Generacion (CJNG), and she was also threatened with death if she told anyone about the activities she had witnessed regarding their trafficking of goods. The associate claimant and minor claimant have also been threatened with death by the principal claimant’s ex-husband as a means of harming the principal claimant.
[7] The claimants arrived in Canada in XXXX 2022 and signed their BOC forms in October 2022.
DETERMINATION
[8] I find that the claimants are Convention refugees as per s. 96 of IRPA, as they have each established a serious possibility of persecution if they were to return to Mexico.
ANALYSIS
Identity
[9] I find that the personal identities of the claimants and their identities as nationals of Mexico have been established through their testimonies and the copies of their passports in evidence.[8]
Nexus
[10] I find that the allegations establish a nexus to a Convention ground for each claimant. The principal claimant has a nexus to membership in a particular social group as a woman facing gender-related violence, arising from her allegations of threats and abuse from her ex-husband. I have also considered the intersectional impact of gender-related violence from her allegations of childhood sexual abuse.
[11] The associate claimant and minor claimant each have a nexus to membership in a particular social group, specifically that of family members of the principal claimant, as their risks arise from their familial association to the principal claimant as her spouse and child. For these reasons, all three claims will be analyzed under s. 96 of IRPA.
Credibility
[12] A claimant’s sworn testimony is presumed truthful unless there are reasons to doubt the veracity of their allegations.[9] In this case, the principal claimant’s testimony on behalf of herself and the minor claimant, and the associate claimant’s testimony on his own behalf, were candid, forthcoming, and consistent with the information contained in their BOC forms, narrative, and personal evidence. The claimants did not attempt to embellish their testimonies nor enhance the favourability of their claims, despite opportunity to do so. The claimants became emotional during their testimonies, particularly the principal claimant, when speaking about their fears of the principal claimant’s ex-husband carrying out his death threats, along with the principal claimant’s desire to get her daughter back in her care. The claimants were open and forthcoming about the fact that they were nervous, yet I found their testimonies to be clear, spontaneous, and detailed. I find that the principal claimant’s emotional testimony was not inconsistent with the impact of trauma when recounting traumatic incidents outlined in Guidelines 4 and 8 and her psychological report at exhibit 5. Overall, I find the claimants to be credible witnesses with respect to the material facts of their claims as outlined below.
Well-Founded Fear of Persecution
Findings of fact
[13] The claimants provided personal supporting documents to corroborate their claims at exhibit 4.1, including: birth certificates for the minor claimant and the principal claimant’s daughter in Mexico; Mexican voter identification cards for the principal claimant and associate claimant; a copy of the principal claimant’s marriage certificate with her ex-husband; a copy of the principal claimant’s divorce judgement from her ex-husband; a copy of a police report and acknowledgement of a case with the Prosecutor General filed by the claimants in Mexico against the principal claimant’s ex-husband, along with a copy of the interview notes taken by the Prosecutor General when interviewing the principal claimant about this report, and an acknowledgement of authentication of these documents from the Prosecutor General’s office; a copy of the principal claimant and associate claimant’s marriage certificate; a notarized document authorizing the principal claimant’s mother the power to conduct lawsuits, administrative acts, and ownership acts on behalf of the principal claimant; and affidavits from the principal claimant’s uncle and the principal claimant’s aunt, both signed and accompanied by their respective identification documents. I find no reason to doubt the genuine nature of these documents and give them full weight in credibly establishing, along with the claimants’ allegations and credible testimonies, the following facts:
a) The principal claimant was sexually assaulted for a number of years by her stepfather as a child and struggled with her mental health as a result. She was able to tell her mother about these experiences as a child with the assistance of her uncle;
b) The principal claimant married her ex-husband in 2009 and they had a daughter together in 2010, as confirmed by the copy of her birth certificate in evidence. They lived together in Comitan, Chiapas. Her ex-husband did not form a relationship with her daughter and was resentful that she was not a boy;
c) The principal claimant’s ex-husband was emotionally, psychologically, verbally, physically, and sexually abusive and threatening towards her, including during her pregnancy and often in front of their daughter;
d) The principal claimant was forced to work for her ex-husband’s family’s XXXX business, which had multiple stores and a warehouse. She was not permitted to speak with her ex-husband’s coworkers, was locked away in her room when he spoke with his drivers, and was not permitted to enter the warehouse or his parents’ bedroom. She was told she could not open any of the merchandise, and she was only allowed to be in the kitchen to prepare food or to manage sales of the XXXX stores. She witnessed large quantities of merchandise and saw that drugs were stored within the XXXX boxes. She was told by her ex-husband that their distribution route was large and went to the Guatemalan border. She confronted her ex-husband about the drugs and distribution, and he threatened to silence her;
e) The principal claimant’s ex-husband directly told her that he was involved with the CJNG cartel. When she suggested that they move away and start a new life together in a new city, he told her that he could not leave, as he was involved with the CJNG and there were CJNG men in every part of Mexico. She saw him always with other men, communicating on radios, and being called a nickname. After separating from her ex-husband, he continually threatened her, saying that CJNG men existed throughout the Republic of Mexico and that he would use these connections to search for her anywhere she went if she did not remain quiet about what she witnessed with his business;
f) The principal claimant separated from her ex-husband in 2011 and moved to Tapachula, Chiapas with her daughter. She did not speak with her ex-husband for 5 months, and they then initiated divorce proceedings. She moved back to Comitan in XXXX 2013, while her ex-husband was living in Cancun. The principal claimant’s ex-husband granted her a divorce under the threat that she could not tell anyone what she witnessed regarding his business, associates, and merchandise distribution. She was also forced to sign a document waiving her legal rights to any financial support. Her ex-husband’s parents attempted to bribe her for custody of her daughter, and she refused;
g) The principal claimant was awarded full custody and guardianship of her daughter in XXXX 2013, and her ex-husband was granted visitation rights every second Saturday. This is the only and most up-to-date legal custody arrangement regarding their daughter. The principal claimant moved with her daughter to XXXX, Chiapas in XXXX 2013, began a relationship with the associate claimant, became pregnant, moved to Tapachula in XXXX 2013, and was visited twice per year by her ex-husband’s parents;
h) The principal claimant and associate claimant married in XXXX 2013 and the minor claimant was born in XXXX 2013. His birth certificate in evidence and his passport list the principal claimant and associate claimant as his parents;
i) In XXXX 2020 the principal claimant’s ex-husband told her that he was back in Chiapas and wanted to see his daughter. He continued to be abusive to her when he came to pick up his daughter in XXXX 2020, and advised that he would call her. The principal claimant’s daughter was not returned, and she found out that they were no longer in Comitan. She was contacted occasionally on the phone by her daughter and told that her daughter was living with the principal claimant’s ex-husband’s parents. He refused to allow the principal claimant to see her daughter or know her location. When the principal claimant heard that her daughter was not returned to school, she threatened to reveal information about what she had witnessed about his business and to sue him. He responded by threatening to kill the associate claimant and minor claimant;
j) The principal claimant attempted to get her daughter back through talking with the courts in Tapachula and Comitan in XXXX and XXXX 2021, but she was advised that she could only do that by initiating a lawsuit. During this process, she told the courts about her ex-husband’s business activities and involvement with the CJNG in an attempt to inform them about the seriousness of the situation and his violent nature. She was fearful that her ex-husband would act on his death threats if she attempted to sue him, so she did not initiate a lawsuit. She attempted to get the assistance of the police by telling her story, and they said they would help with a bribe, but said that they could not guarantee the return of her daughter, and that her ex-husband could be released on bail immediately even if he was arrested, which would increase the risk to all three claimants. This advice was also given to her by her cousin who is a lawyer and a human rights activist, who both told her it was better to come to an agreement with her ex-husband, and that suing him would make the situation worse and lead to more violence;
k) The principal claimant was informed by a friend that her daughter was seen at a school in Las Margaritas, Chiapas. The principal claimant went to see her daughter at school, spoke with her daughter, and when she attempted to negotiate with her ex-husband to arrange visits with her daughter, he refused. The principal claimant and associate claimant attended her daughter’s school year-end ceremony in XXXX 2022 and were threatened with death by her ex-husband;
l) The principal claimant and associate claimant went to her aunt’s home in XXXX the same day, and her ex-husband arrived with 30 men who violently threatened them regarding the principal claimant’s exposure of information to authorities about their business activities in an attempt to get her daughter back. Two months later, the principal claimant and associate claimant returned to the principal claimant’s aunt’s home, where the principal claimant’s ex-husband appeared with 20 men who threatened all three claimants with death and pushed the principal claimant’s mother. He did not ever say how he knew the claimants were at her aunt’s home; and
m) The claimants left for Canada two weeks later and have not had any contact with the principal claimant’s ex-husband nor daughter since arriving in Canada. Their family members have not told them about any problems with her ex-husband since they arrived in Canada. The principal claimant has met a lawyer since being in Canada who advised that once the claimants have secured permanent residency in Canada, they can initiate legal proceedings to get her daughter from her ex-husband. The principal claimant also testified that if returned to Mexico, she would “until her final breath” continue trying to get her daughter back from her ex-husband, as she is fearful for her daughter’s safety in a cartel environment and due to her ex-husband’s violent nature.
Delay in claiming protection in Canada
[14] The claimants entered Canada in XXXX 2022 and signed their BOC forms in October 2022. While they stated that their intention in coming to Canada was to file claims for refugee protection, as they heard about this possibility while in Mexico and informed the police in their report that they were intending on coming to Canada to seek protection,[10] they testified that they did not file their claims at the border because when they attempted to seek protection at the border, they were told by the border officials that there was no available translator so they should make their claims from within Canada. They then met a lawyer, changed lawyers to their current lawyer, and signed their BOC forms within two months of arrival. I find this reasonable, as they maintained legal visitor status in Canada, attempted to initiate claims at the earliest opportunity, and immediately sought legal advice upon entry to Canada. Therefore, I do not draw a negative inference regarding their subjective fears from their delay of 2 months in claiming protection in Canada.
Conclusion on subjective fear
[15] As discussed above, the claimants’ evidence, which I have found credible, establishes that they have all three been threatened by the principal claimant’s ex-husband, and he has a long history of abuse towards the principal claimant in the presence of her daughter, which itself constitutes child abuse towards her daughter. I find the claimants have established, on a balance of probabilities, the principal claimant’s ex-husband’s involvement in drug trafficking and membership in the CJNG cartel. I find that the claimants have credibly established the principal claimant’s ex-husband’s persistence in pursuing the claimants, such as repeatedly utilizing the cycle of violence[11] to convince the principal claimant to return to the relationship multiple times after his abuse over many years; his use of threats to create fear in the claimants of pursuing legal matters to enforce the legal custody the principal claimant maintains of her daughter; and his persistence in travelling to the principal claimant’s aunt’s home on multiple occasions to threaten and verbally abuse the claimants.
[16] Additionally, due to his threats against the principal claimant related to her knowledge of his involvement in the CJNG and his business, including his willingness to threaten to harm the associate claimant and minor claimant in retaliation for the principal claimant speaking out about these activities to the authorities in an attempt to get her daughter back, I find that his motivation to harm all three claimants is compounded. As the principal claimant has testified that she will not give up on trying to get her daughter back and enforce her legal custody, I find that the claimants will continue to be at risk of persecution from the principal claimant’s ex-husband. Based on all the evidence before me, I find that all three claimants have established a subjective fear of persecution if they were to return to Mexico.
Objective basis
[17] The objective evidence before me supports the claimants’ fear of returning to Mexico.
[18] According to the objective evidence in the National Documentation Package (NDP) for Mexico,[12] “patriarchal and conservative values are still prevalent in Mexican society”[13] and violence against women is a significant problem. Item 2.8 indicated that in a 2023 report, “sexual abuse and domestic violence against women are common, and perpetrators are rarely punished”.[14] Item 5.3 identifies domestic violence as a “widely acknowledged problem” and states that “Mexican women are often mistreated by their spouses or by male members of their family”. This source also states that “46 percent of women have suffered some form of violence” and states that this includes abuse, violence, and attacks from former partners or spouses. [15]
[19] Mexico is listed as being within the top 20 worst countries in the world for violence against women.[16] NDP item 5.24 states that between 2018-2020, “the National Register of Disappeared and Unlocated Persons documented the disappearance of 19,938 women, girls, and adolescents in Mexico”. Sources from a 2021 RIR indicate that the rate of femicides in Mexico has increased by 137 percent over the last five years, while homicides have comparatively increased by 35 percent over the same period.[17] According to official statistics, 968 femicides were recorded in 2022; some nongovernmental sources say the true number is likely much higher.[18] It is widely acknowledged between many sources that rates of femicide are underreported. Item 5.20 indicates that “[m]any of the femicides linked to organized crime are of women whose partner was involved with or targeted by a criminal group”.[19] According to the objective evidence, in the culture surrounding cartels and gangs, “women are ‘considered disposable’…and violence committed against them represents ‘gang cohesion and masculinity’”, and organized crime culture is “‘very macho, patriarchal, with very sexist undertones’”.[20]
[20] NDP item 7.8 states that criminal violence has become highly intense, diversified, and popularized over the past two decades in Mexico, with widespread violence and ungovernability affecting almost all Mexican states. It is objectively well-established that a high percentage of police officers in Mexico work in partnership with criminal organizations,[21] and that the CJNG is one of the two largest and most powerful cartels in Mexico with “significant presence in 23 of the 32 Mexican states”, an expanding, growing presence in the remaining states and along key border locations, and has alliances with other cartels.[22] The CJNG is said to have control over certain key highways and ports where they have installed checkpoints, verify identification, and impose extortion payments, they have placed lookouts at local airports and land borders who report back to the CJNG, and they have access to information at the Mexico City International Airport.[23] Areas of safety are continually shifting, and thousands have been displaced, such as in the claimants’ home area of Chiapas, in which “clashes between organized crime groups have displaced thousands of inhabitants in 2023”, including clashes between the CJNG and Sinaloa cartels.[24] The CJNG is unique in its violent public displays, and is said to have very powerful weaponry, even surpassing that of the Mexican armed forces.[25] The CJNG is also identified as the criminal group with the most money-laundering businesses in Mexico, including legal sales of items such as alcohol, tobacco, and tortillas,[26] reflective of the XXXX business described by the principal claimant operated by her ex-husband.
[21] Drug cartels such as the CJNG engage in extreme forms of violence as a means of maintaining power, such as displaying dead and mutilated bodies to terrorize the public and ensure compliance with their demands.[27] Further, “those who betray or steal from the cartel are dehumanized and portrayed as ‘rats’ who must pay with a gruesome death for their betrayal”; examples of what they consider to be betrayal include reporting the cartel to police or failing to pay a bribe or quota.[28] NDP item 7.15 states that a motivation for cartels to track people throughout Mexico include a personal vendetta. The 2023 RIR at item 7.7 states that “the CJNG has ‘what it needs’, in terms of technological and weapons capabilities, ‘to reach whoever they want, wherever they want’ in Mexico, ‘even if they are not the dominant actor’ in that state”. The claimants’ credible testimony has established that the principal claimant’s CJNG-involved ex-husband has threatened all three claimants with death following the principal claimant’s disclosure of information to authorities about his criminal activities linked to the CJNG, and has a personal vendetta against the principal claimant which involves illegally keeping her daughter away from her, to which the principal claimant has established she will not cease trying to get her daughter back. Overall, the objective documentation supports the claimants’ subjective fear of the principal claimant’s ex-husband.
Conclusions on well-founded fear of persecution
[22] While I note that the principal claimant stated that she has not had contact with her daughter or made any attempts to get her daughter back since she saw her at her school in XXXX 2022, I have considered the totality of the principal claimant’s circumstances, fear of her ex-husband, feelings of being misunderstood and unsupported by authorities, the history of abuse from her ex-husband, and his profile as a CJNG member, along with the guidance provided in Guideline 4[29] when assessing her forward-facing risk related to getting her daughter back. I find it reasonable that after exhausting what she believes were all legal avenues to get her daughter back with Mexican authorities and weighing the safety risks posed to the claimants and her daughter, she believes it was safest to cut communication with her daughter and ex-husband until she can continue the legal process to get her daughter back after the claimants have secured their permanent immigration statuses in Canada.
[23] Based on the totality of the evidence, I find that the claimants have established a well-founded fear of persecution if they were to return to Mexico, as they face further abuse and death from the principal claimant’s ex-husband due to the principal claimant speaking to authorities about his involvement in drug trafficking with the CJNG cartel and her persistence in pursuing the enforcement of legal custody of her daughter.
State Protection
[24] Except in situations of complete breakdown of the state apparatus, the state is presumed to be capable of protecting its citizens unless there is clear and convincing evidence to the contrary. I find that the claimants have rebutted this presumption as their testimonies and the objective evidence demonstrate that the state will not provide them with adequate protection.
[25] When the principal claimant was in an abusive relationship with her ex-husband, she did not attempt to obtain state protection, as she was fearful of his connections with the CJNG and that his abuse towards her would escalate into more violence. I find this reasonable in consideration of the guidance provided at Guideline 4 regarding hesitations and fear of seeking protection from authorities in cases of gender-based violence.[30]
[26] As outlined above, the principal claimant unsuccessfully attempted to get protection and support from numerous authorities in Mexico to get her daughter back. She was told by the XXXX XXXX in Comitan and the XXXX XXXX XXXX XXXX XXXX in Tapachula that her daughter was not technically kidnapped as she had given her consent for her daughter to go with her ex-husband, that they could not create an amber alert in her circumstances, and that her custody arrangement allowed for her ex-husband to have visits with her daughter. They stated that the only means for her to get her daughter back was to hire a lawyer and pursue a lawsuit for full custody in which her ex-husband would have no visitation rights. Aside from the advice she received from multiple lawyers and a human rights activist that she would increase the risk to herself and the other two claimants if she pursued a lawsuit, she was also told that without knowledge of the address where her daughter was living, she could not file a lawsuit. When she approached police about accompanying her to see if her daughter was at the home of a known relative of her ex-husband, they agreed to do it with a bribe, but informed her that it would most likely not result in prosecution and would create greater danger for her and her family.
[27] In general, both the principal and associate claimant testified that there is a general sense in Mexico that police are corrupt, involved with cartels, and do not offer protection for women. While there is a copy of a police report in evidence, this report outlines that the claimants intended to leave for Canada to file claims for refugee protection, and they testified at the hearing that this report was made on the advice of a lawyer who told them to document the history of facts regarding the principal claimant’s ex-husband in the event that proof was needed for future legal proceedings. The police did not offer the claimants protection following this report.
[28] The NDP at item 7.18 states that “various police forces in Mexico…lack human and material resources in order to properly investigate crimes”. Numerous sources report that police forces in Mexico are corrupt, collude with criminal organizations, and often are influenced by bribes, attributed to “poor working conditions in law enforcement agencies”.[31] This item also states that “93.2 percent of all crimes committed were either not reported or not investigated” with a large amount of blame placed on police, as citizens saw reporting as “a waste of time”, they had a “lack of trust in authorities”, there were “difficulties and a [long reporting] process”, authorities had a “hostile attitude”, and they feared “being victims of extortion”.[32] More than half of Mexican citizens saw both police and the Attorney General’s office as corrupt.[33]
[29] Compounding the above, the country condition documents indicate that laws addressing violence against women are not effectively enforced. The Council on Foreign Relations (CFR) also stated that there was “systemic impunity” for crimes against women in Mexico, where 90% of crimes go unreported, uninvestigated or unpunished.[34]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.[35] Item 5.12 states that “the Mexican police and armed forces routinely torture and ill-treat women, and that sexual violence is routine during arrest and interrogation”, with 72% of arrested women reporting sexual violence during arrest or in the hours that followed.[36] Consequently, it is reported that an estimated 78% of women facing gender-based violence do not seek institutional help or report to authorities.[37]
[30] Item 5.11 states that “there are often large differences between the existing laws and their implementation. Despite strong existing legislation protecting women’s rights and preventing violence against women, enforcement varies widely and largely depends on social norms”. Implementation of a 2007 law[38] designed to protect women from such crimes remains halting, particularly at the state level, and impunity is the norm for the killers of hundreds of women each year.[39] State authorities can issue “gender alerts” that trigger greater scrutiny and an influx of resources to combat an epidemic of violence against women, but the mechanism has proven ineffective.[40] The government cut funding for women’s services in 2022, and “the president frequently dismissed feminists as allies of the political opposition”.[41]
[31] I find that the principal claimant’s fear of reporting her ex-husband’s abuse and criminal activities while she was in a relationship with him to be reasonable given the treatment of women by Mexican authorities, her fear of his power within the CJNG, and the objective evidence regarding a lack of implementation of laws protecting women and collusion between criminal actors and authorities. Furthermore, I find that the objective evidence supports the lack of support the claimants received when attempting to get the principal claimant’s daughter back from her ex-husband due to his involvement with the CJNG and the lack of assistance offered to women. I, therefore, find that state protection is inadequate at an operational level and that it would not be forthcoming to the claimants in their circumstances.
Internal Flight Alternative
[32] For an internal flight alternative (or IFA) to be viable, it must satisfy both prongs of a two-pronged test on a balance of probabilities. I must assess whether there is another location in Mexico in which the claimants would not face a serious possibility of persecution or a risk of harm, and whether it would be reasonable to expect them to move there.[42] I find that there is no viable IFA within Mexico for the claimants, as there is no location in Mexico in which the claimants would not face a serious possibility of persecution.
[33] The principal claimant established that after she was threatened on multiple occasions by her ex-husband to not reveal information about his business activities and involvement with the CJNG cartel to anyone, she revealed information about her ex-husband’s activities with drug trafficking and the CJNG cartel to authorities when attempting to seek assistance in getting her daughter back from her ex-husband. Following these conversations with authorities, her ex-husband then threatened the lives of all three claimants while stating that the principal claimant was “big-mouthed” and would see retaliation for this. As mentioned above, CJNG motivations for tracking and harming a particular individual include those who have privileged information or important contacts the CJNG perceives to be a threat to their interests. Further expanded, this is those who “have ‘valuable’ or ‘sensitive’ information, betrayed them, or if they hold a personal animosity with them, such as previous romantic partners, leaders or high-ranking members of rival criminal groups, journalists, former government employees, or former police officers”.[43] This is in line with the principal claimant’s circumstances, particularly since she previously revealed this sensitive information to authorities.
[34] Furthermore, I find that the principal claimant’s ex-husband has been abusive towards her for over a decade during and after their relationship, and that he has insisted that he is in control of their daughter, that their daughter lives with him now, and that the principal claimant is not permitted to see her daughter. I find that the claimants have credibly established that the principal claimant’s ex-husband has the ongoing motivation to find and harm all three claimants in retaliation for the principal claimant’s previous efforts to get her daughter back, which involved revealing information about his illicit activities to authorities, along with that arising from the principal claimant’s stated intention to continue pursuing the enforcement of her legal custody of her daughter until her daughter is back in her care.
[35] Aside from the power and reach of the CJNG cartel documented within the objective evidence, and the principal claimant’s ex-husband’s history of threatening the claimants at the principal claimant’s aunt’s home, the claimants’ home, and over the telephone for many years, I find that the principal claimant’s ex-husband has the means to find and harm the claimants through the principal claimant’s continued efforts to enforce the legal custody she has of her daughter and get her daughter back into her care.
[36] Furthermore, It is well established in the Federal Court that it is not reasonable to expect a claimant to avoid contact with family members, that family members would face dangers from knowledge of a claimant’s whereabouts, and it is not reasonable for family members or friends to place their own lives in danger by either denying knowledge of a claimant’s whereabouts or deliberately misleading the agent of harm.[44] While the principal claimant has not spoken with her daughter since XXXX 2022, my analysis above on this fact finds that this decision is a product of fear arising from death threats from her ex-husband towards herself, the associate claimant, and the minor claimant. Additionally, I find that the principal claimant’s testimony establishes that this is a temporary decision while the claimants seek safety in Canada and until they are able to find the legal assistance to enforce this custody agreement in a means that is safe for all of the claimants. The principal claimant has testified that if returned to Mexico, she would continue trying to get her daughter back, as she fears for her daughter’s safety and both her and her daughter have expressed to one another that they wish to live together. Therefore, I find that the evidence before me establishes that the principal claimant values an ongoing relationship with her daughter and will continue to fight to have her daughter in her legal care. It is, therefore, unreasonable to expect her to keep her location from her daughter, as this is tantamount to hiding. Additionally, her daughter could not be reasonably expected to keep the claimants’ location hidden from the principal claimant’s ex-husband, as this may put her life at risk, notably given the ex-husband’s history of threats, violent behaviour, and abuse of the principal claimant in the presence of her daughter.
[37] As I have found that the principal claimant’s ex-partner has the motivation and means to find all three of the claimants throughout Mexico, and it is therefore not safe for the claimants to return anywhere in Mexico, there is no need to consider whether it is unreasonable.
[38] Based on the information before me, I find that the claimants do not have a viable IFA in Mexico.
CONCLUSION
[39] I find that the claimants are Convention refugees and accept their claims.
(signed) Kylee Carreno
December 5, 2023
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Refugee Protection Division Rules, SOR/2012-256.
[3] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, effective September 30, 1996.
[4] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Gender Considerations in Proceedings before the Immigration and Refugee Board, updated July 18, 2022.
[5] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 8: Accessibility to IRB Proceedings—Procedural Accommodations and Substantive Considerations, updated October 31, 2023.
[6] Exhibit 5.
[7] Exhibits 2.1-2.3.
[8] Exhibit 1.
[9] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (CA).
[10] Exhibit 4.1.
[11] Chairperson’s Guideline 4.
[12] Exhibit 3, National Documentation Package (NDP) for Mexico, updated September 29, 2023.
[13] Exhibit 3, item 5.11.
[14] Exhibit 3, item 2.8.
[15] Exhibit 3, item 5.3.
[16] Exhibit 3, item 5.3.
[17] Exhibit 3, item 5.20.
[18] Exhibit 3, item 2.8.
[19] Exhibit 3, item 5.20.
[20] Exhibit 3, item 5.20.
[21] Exhibit 3, item 10.2.
[22] Exhibit 3, item 7.7.
[23] Exhibit 3, item 7.7.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Exhibit 3, item 7.16.
[28] Ibid.
[29] Chairperson’s Guideline 4, sections 5.1.2, 11.3.7, and 11.5.1.
[30] Chairperson’s Guideline 4, section 11.5.1.
[31] Exhibit 3, item 7.18.
[32] Ibid.
[33] Ibid.
[34] Exhibit 3, item 5.20.
[35] Exhibit 3, item 5.20.
[36] Exhibit 3, item 5.12.
[37] Exhibit 3, item 5.17.
[38] Exhibit 3, item 5.1; item 2.8.
[39] Exhibit 3, item 2.8.
[40] Ibid.
[41] Ibid.
[42] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 2003 FC 1075.
[43] Exhibit 3, item 7.7.
[44] Ali v Canada 2020 FC 93.