2023 RLLR 26

Citation: 2023 RLLR 26
Tribunal: Refugee Protection Division
Date of Decision: December 8, 2023
Panel: Leanna Krause
Counsel for the Claimant(s): Kirk W. Olearnek
Country: Mexico
RPD Number: VC3-02711
Associated RPD Numbers): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX XXXX, a citizen of Mexico who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. In hearing and assessing this claim, I considered the Chairperson’s Guideline 4, gender considerations in proceedings before the IRB.

ALLEGATIONS

[2]       You fear harm from your ex-husband. Your ex-husband was jealous, controlling, and possessive, and over a period of about 38 years, he physically, emotionally, sexually, verbally, and financially abused you. You fear that if you return to Mexico, this violence against you from him will continue.

DETERMINATION

[3]       I find you to be a Convention refugee for the following reasons.

ANALYSIS

Identity

[4]       Your identity as a citizen of Mexico is established on a balance of probabilities by the supporting documentation filed, namely a copy of your Mexican passport found at Exhibit 1.

Credibility and Well-Founded Fear of Persecution.

[5]       When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. In this case, I overall found you to be a credible witness. Your testimony was given in a consistent and straightforward manner, and the information you provided was consistent with your Basis of Claim form and your supporting documents.

[6]       I note that you did delay in filing your refugee claim. You arrived in Canada in XXXX 2017 and filed your claim in around December 2022. The documentary evidence confirms that you had been without status in Canada for about four (4) years prior to filing your refugee claim, and this delay raised concerns about your subjective fear.

[7]       Based on your testimony, I however find that you have reasonably explained your delay claiming protection. Your testimony indicates that you initially tried to get help in extending your status in Canada, and that you did raise the reasons you could not return to Mexico with a lawyer. But it was your impression that any help from the lawyer would cost you money, which you did not have.

[8]       It was also not clear to you at that time that the type of application the lawyer would be assisting you with was a refugee claim. You indicated that had this been the case, you would have done it. And after you had that consultation with the lawyer, you did proceed to file an application to restore and extend your status with the help of a friend. And because of your fear of returning to Mexico when your status ran out in Canada, you tried not to be noticed.

[9]       And it was after the fire at your apartment in the last half of 2022 that you learned through community support workers that you could file a refugee claim in Canada with the help of legal aid. And shortly after you found this out, you filed your refugee claim.

[10]     I note that in assessing the reasonableness of your explanation and your delay in filing your claim, I have considered your age and your level of education, which I find supports that you may not have had the knowledge and ability to figure out how to legally stay in Canada on your own. I also note that you have provided letters from family members such as your parents and your siblings that confirm the abuse you suffered over the years from your husband.

[11]     I also found your testimony at the hearing was consistent with the abuse that you have set out in your narrative. And for all of these reasons, I found that you were a credible witness, and I accept your allegations of abuse that you have suffered from your husband that are set out in your narrative and the supporting documentary evidence. I also accept that you have established on a balance of probabilities that your husband is still interested in locating you, as evidenced by your testimony of his attempts at contacting you in Canada.

[12]     I found this testimony credible and spontaneous. You have indicated that since coming to Canada, you received calls and messages, including messages threatening that you would pay for everything when you come back. And as recently as three (3) months ago, your husband also grabbed your son’s phone in order to talk to you.

[13]     While I note that your husband is currently 79 years old, I find that the evidence indicates that he is still capable of harming you. You have indicated that he is still living independently, and while he has XXXX, he generally was able to manage it while you were together. And based on your testimony, it does not appear that he had any major complications with his condition, and you have no information that anything has changed regarding his health.

[14]     The country condition evidence, such As Items 5, 10, and 2.8, also confirm that gender-based violence is common in Mexico. Consequently, given the country condition evidence, the years of abuse that you have endured at the hands of your husband, as well as his ongoing attempts at contacting you, I find that your subjective fear of persecution, as well as an objective basis for that fear, is established. I find that your fear also has a nexus to the Convention grounds of membership in a particular social group, as a woman fearing gender-based violence.

State Protection

[15]     I find that the country condition evidence noted previously, specifically 5.10 and 2.8 establishes that state protection is unlikely to be forthcoming to you. The country condition evidence confirms that perpetrators of gender-based violence are rarely punished. Implementation of a 2007 law designed to protect women from such crimes remains halting, particularly at the state level, and impunity is the norm —

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[16]     MEMBER: — hundreds of women each year. 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.

[17]     According to official statistics, 968 femicides were recorded in 2022. Some non-governmental sources say the true number is likely much higher. And I also note that the country condition evidence you provided also confirms this.

[18]     This country condition evidence also confirms your own experiences that you had in going to the police in the past. And therefore, I find that overall, the evidence establishes that operationally effective state protection would not be available to you in Mexico. And I find that the presumption of state protection has been rebutted.

Internal Flight Alternative

[19]     In this case, your husband has been able to track you down in other states in the past through your children. And he most recently was using one (1) of your children’s phones to try and talk to you. Given your evidence about his use of your children to locate you in other states and Mexico in the past, and his attempts at contacting you recently through your children, I find that you do not have a viable internal flight alternative in Mexico.

CONCLUSION

[20]     For the foregoing reasons, I find you to be a Convention refugee and I accept your claim.

——— REASONS CONCLUDED ———