2023 RLLR 29
Citation: 2023 RLLR 29
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2023
Panel: Katarina Bogojevic
Counsel for the Claimant(s): N/A
Country: Mexico
RPD Number: VC3-04381
Associated RPD Numbers): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
REASONS FOR DECISION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX as a citizen of Mexico who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”).[1]
DETERMINATION
[2] I find that the claimant is a Convention refugee pursuant to section 96 of the Act as she has established with credible and trustworthy evidence, that she has a well-founded fear of persecution in Mexico. The nexus between her allegations and the Convention is membership in the particular social group of women.
[3] In hearing and assessing this claim, I have considered and applied the Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board[2] (“Guideline 4”) which offers guidance in recognizing women as members of a particular social group and with respect to other gender specific issues present in this claim.
ALLEGATIONS
[4] The claimant’s allegations are contained in her Basis of Claim (“BOC”) form.[3] The following is a summary:
[5] The claimant is a citizen of Mexico. She was in Canada from XXXX 2021 to XXXX 2022 staying with a boyfriend. When her relationship with him did not work out, the claimant felt ashamed and wanted to keep this information from her family. After communicating with one of her friend’s former boyfriends (“AS”), he invited the claimant to stay with him and his family in Cancun, and she decided to take him up on the offer.
[6] The claimant was struggling to find work in Cancun, and AS invited her to go with him on a vacation to Colombia. After they arrived in Colombia, AS began to introduce the claimant to different people and asked her to clean and cook for them in the home where they were staying. He also started to drink and became physically and verbally abusive towards the claimant, threatening her not to leave and pressuring her to be his girlfriend.
[7] The claimant initially assumed that the people staying with them were AS’s friends, but one of them later revealed that they had all paid AS to smuggle them into the United States. One of the clients suggested that the claimant go with them and try to escape AS. AS let her accompany them to Bogota but before they could leave the country, he came and told the claimant that she could not accompany the clients to Mexico.
[8] AS then asked the claimant to accompany one of the clients through Ecuador where they would take a flight back to Mexico together. After some problems at the border, the two were able to go to Guyaquil where AS sent the claimant money to purchase their plane tickets back to Cancun. AS picked them up in Cancun and rented a home for them to stay in a private neighbourhood. The claimant eventually convinced AS that her mother was unwell and that she needed to return home to look after her.
[9] The claimant remained at her mother’s home for one month. AS and his parents started to press her to return to Cancun, telling her that they would help her if she returned. However, the claimant also started to receive messages from individuals in Colombia who said that they were friends with AS, that he owed them money, and that he said that he would send the claimant back to Colombia as payment for his debt. The claimant already had a valid Canadian visa and decided to return to Canada to avoid AS. While in Canada she has continued to receive messages from Colombian numbers as well as from AS and his father, with the most recent messages coming in the fall of 2023.
ANALYSIS
Identity
[10] I find that the claimant’s identity as a national of Mexico is established on a balance of probabilities by her sworn testimony and the copy of her Mexican passport in evidence.[4]
Credibility
[11] When a claimant affirms to tell the truth, this creates a presumption that her allegations are true unless there is reason to doubt their truthfulness. In this case I have found the claimant to be a credible witness. She testified in a consistent and emotional manner and there were no material unexplained inconsistencies, omissions, or contradictions. She was able to provide significant and spontaneous detail concerning her predicament. As such, I place significant weight on the claimant’s testimony.
[12] The claimant provided some documentary evidence in support of her claim.[5] This included a picture of AS’s passport, IDs from some of AS’s clients, and screen shots of text messages between AS and his clients. I find no reason to doubt the authenticity of these documents and they help to corroborate some of the allegations concerning AS’s criminal enterprise. I find it reasonable that the claimant was unable to provide further documentary evidence given that the only individuals who were aware of what happened to the claimant are AS, his family (who support AS’s criminal enterprise) and AS’s clients with whom the claimant has no contact. The claimant further explained that she did not want to tell her family about anything that had happened as she didn’t want them to get in trouble. I find this reasonable.
[13] I did question the claimant about the text messages that she has continued to receive from AS and his family as well as individuals in Colombia. She said that she deleted these messages and has continued to delete them without reading them. She did show me some messages that she has received from Colombian numbers, but they did not contain any information specific to the claimant. While I do not find it entirely reasonable that the claimant deleted the messages from AS and his father rather than submitting them into evidence, I do not find that it overcomes her credible testimony, especially given the fact that the claimant has never been represented by counsel and has described that she suffers from anxiety attacks and insomnia when she is reminded of her situation.
AS’s Criminal Connections
[14] I find on a balance of probabilities that AS has criminal connections in Mexico. The claimant testified that at times when AS was threatening her, he would mention working with a cartel, although he did not mention the name of the cartel. Additionally, she listened in on a phone call from one of AS’s clients who indicated that she was transported by cartel members with guns through the desert into the United States. In light of this, and the fact that AS was involved in a criminal enterprise, I find it reasonable to assume that AS has criminal connections on a balance of probabilities.
[15] Taking together the claimant’s documentary evidence and her credible testimony, I find that she has established her allegations on a balance of probabilities. In particular, I find that she has established that she was coerced by AS into helping him with his criminal enterprise in Colombia and Ecuador, that she was able to escape from AS upon her return to Cancun, and that AS and his family have been contacting her since she left in an effort to get her to return and work with AS again.
[16] I find that the claimant has also established her subjective fear on a balance of probabilities. In making this finding I note that while the claimant did leave Mexico as soon as she was reasonably able to, she did not claim refugee protection in Canada until more than 6 months after her arrival. In her BOC the claimant explained that she didn’t know how the refugee process worked and was worried that AS and his family would harm her family. She also testified that she believed that making a refugee claim was equivalent to filing a police report and this again made her worry for her family’s safety. I find this explanation reasonable, given that the claimant never had the assistance of counsel.
1F(b) Exclusion
[17] I have considered whether the claimant should be excluded under Article 1F(b) of the Refugee Convention due to her participation in human smuggling in Colombia and Ecuador. Given what I have found to be the claimant’s credible testimony and the corroborating documentary evidence, I do not find that there are serious reasons to consider that the claimant has engaged in a serious non-political crime which would exclude her from refugee protection under Article 1F(b).
[18] Article 1F(b) of the Convention states as follows:
1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
b) he has committed a serious non-political crime outside the country of refuge prior to his admission that country as a refugee.
[19] While regard should be had to international standards in analyzing the question of exclusion under Article 1F(b), Canada’s perspective cannot be ignored in determining the seriousness of the crime.[6] In this case I find that the claimant has established that she has a defence of duress as such I find that there are not serious reasons to consider that the claimant committed a serious non-political crime in Colombia and Ecuador.
[20] While the claimant was not entirely sure how AS’s operation worked, she did confirm that she was aware that she was making appointments for individuals to obtain Colombian passports using false documentation. I find that the following Canadian crimes would cover the actions taken by the claimants:
Use, trafficking or possession of forged document
368 (1) Everyone commits an offence who, knowing or believing that a document is forged,
…
(b) causes or attempts to cause any person to use, deal with or act on it as if it were genuine;
(c) transfers, sells or offers to sell it or make it available, to any person, knowing that or being reckless as to whether an offence will be committed under paragraph (a) or (b); or
…
[21] However, I find that the claimant has made out the defense of duress with regards to this offense. The defence of duress was outlined by the Supreme Court of Canada in Ryan. It states as follows:
The defence of duress may be used to justify participation in certain offences providing:
a. The perpetrator was in danger of explicit or implicit imminent harm;
b. The perpetrator reasonably believes that the threat will be carried out;
c. There is no safe avenue of escape;
d. There is no close temporal connection between the threat and the harm threatened, the evil threatened them was on balance, greater than or equal to the evil which they inflicted on the victim;
e. The perpetrator is not a party to a conspiracy or association whereby they are subject to compulsion and actually knew that the threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association; and they were not responsible for their own predicament.[7]
[22] In the recent case of Seydi,[8] the Federal Court also specified that the Supreme Court of Canada’s findings in Ruzic[9] should be explicitly taken into account with regards to the duress defence in immigration as well as criminal proceedings. In Ruzic, the Court requires that, in applying the defence of duress, a decision maker “take into consideration the particular circumstances where the accused found himself and his ability to perceive a reasonable alternative to committing a crime, with an awareness of his background and essential characteristics.”[10]
[23] In this case, the claimant was essentially being held captive in Colombia by AS. She was not aware of AS’s criminal enterprise when she went to Colombia and only became aware of it after she had been there for some time. While she describes that she wanted to leave, she was not a citizen of the country and had no financial means to leave AS. AS was physically and verbally abusive towards her during her time with him in Colombia and made threats concerning how he deals with people who do not listen to him. When she was initially unable to book the appointments for AS’s clients to obtain their passports, AS threatened the claimant. AS did not allow the claimant to leave Colombia but demanded that she accompany one of his clients through Ecuador before she could return to Mexico. The claimant did not have money to pay for a return flight as AS had taken her bankcards. He did not provide her with the money needed to book their flights back to Mexico until she had reached Guyaquil. Upon returning to Mexico, the claimant took the first available opportunity to leave AS.
[24] Given the foregoing, I find that the claimant has established that her situation rises to the level of the test for duress. The evidence shows that AS threatened the claimant with violence, which he had carried out in the past, and that she was unable to escape due to AS’s control over her means of travel. She was also not aware of AS’s criminal operation until she was already under his control and had lost the ability to freely leave. I find on a balance of probabilities an offence was not committed.
Well-Founded Fear of Persecution
[25] To be considered a Convention Refugee, the claimant must demonstrate that she has a well-founded fear of persecution which includes both subjective fear and an objective basis for that fear. Based on the claimant’s BOC, testimony, documentary evidence and the National Documentation Package for Mexico (“NDP”)[11], I find that the claimant does face a serious possibility of harm that is forward looking.
[26] The claimant was a victim of domestic violence and unlawful imprisonment by AS. Despite efforts of the Mexican government, violence against women and girls continues to be a widespread problem in that country. Not a single Mexican state was free of femicide in 2020.[12] average of 10 women were killed each day in 2019. The Committee on the Elimination of Discrimination Against Women has reported that the persistence of high levels of insecurity, violence and organized crime in Mexico is negatively affecting the enjoyment of women and girls of their human rights.[13]
[27] While there are laws against domestic violence, including the Law on Women’s Access to a Life free of Violence, women are reluctant to report violence because of social stigma, victimization, threats or mistrust in the criminal justice system. A 2011 national survey reported that 44.8 percent of women living with a partner experienced some form of violence. Additionally, 77.7 percent of separated or divorced women were the subject of attacks of all kinds from their former partners or spouses.[14] A 2016 national survey reports similar numbers and notes that 64 percent of women experienced severe or very severe violence at the hands of their spouse or partner. Mexican society often believes that “…women provoke the violence they suffer” and violence against women is largely normalized.[15] The broader message is that the onus is on women to find ways to stay safe.[16] Given all the foregoing objective documentary and testamentary evidence, I find that the claimant has established a well-founded fear of persecution from the agent of persecution in Mexico.
[28] Criminal groups who deploy violence as a matter of routine have exacerbated the conditions under which gender-based violence takes place in Mexico, allowing it to proliferate.[17] many femicides are linked to organized crime and women whose partner was “involved with or targeted by a criminal group.” Within gang culture, women are “considered disposable” and violence against them represents “gang cohesion and masculinity.” Female partners are seen as “property who is not free to leave the relationship when they want.” In addition to domestic abuse, these women and girls face the risk of sex trafficking by organized crime groups.[18]
[29] Given all of the forgoing objective, documentary and testamentary evidence, I find that the claimant has established a well-founded fear of persecution from AS and his criminal associates in Mexico.
State Protection
[30] There is a presumption that countries can protect their citizens. The claimant bears the burden of rebutting that presumption with clear and convincing evidence. I find that there is clear and convincing evidence that adequate state protection is not available to the claimant in Mexico.
[31] While the claimant never went to the authorities in Mexico, I find this reasonable given her particular circumstances and the objective evidence. The objective evidence suggests that state and municipal laws affecting domestic violence are often unenforced and do not meet federal standards. State agents responsible for implementing the laws “do not have a gender perspective… or are openly misogynistic.” The federal government also made cuts to the National Institute of Women in 2020, and in 2019 suspended public funding to civil society organizations supporting women victims of domestic violence.[19]
[32] When women do report domestic violence, authorities often fail to investigate, and perpetrators are rarely brought to justice. The New York Times reports that “law enforcement officials and authorities can be passive, complicit or in some cases even abusive towards women who try to report violence.” In 2009, the Inter-American Court of Human Rights ruled that “Mexico did not adopt the norms and measures necessary for the authorities to carry out investigations with due diligence and that this contributed to creating a climate of impunity.”[20] In 2015, Mexico implemented a gender alert mechanism, however, state authorities have in cases refused to use the system. Impunity, which is often the result of chronic corruption and lack of government funding and planning, still prevails and women do not have access to justice. [21]
[33] Further, women whose past or present partners are involved in organized crime can be perceived as guilty or an accomplice to that partner’s criminal activities by the authorities. The authorities are also often reticent to help these women in particular because they do not want to become targets themselves.[22]
[34] Given all the foregoing, I find that state protection would not be forthcoming to the claimant in Mexico, and as such the presumption has been rebutted.
Internal Flight Alternative
[35] I have considered whether the claimant has an internal flight alternative (“IFA”) in Mexico and have concluded that she does not. In making this finding I acknowledge that there is no evidence before me that AS has been looking for the claimant with her family or friends, nor have they made any threats against her since she has left. However, AS and his father have continued to message the claimant since she has been in Canada trying to convince her to come back. Such messages were sent to the claimant as recently as XXXX 2023. Although these messages have not been threatening in and of themselves, the fact that they continue to message the claimant, even a year after she escaped and has not responded, indicates a continued motivation to locate her.
[36] AS also has connections with criminal elements. The objective evidence notes that within the organized crime world, there is little distinction between past and present partners and that women will be targeted even after they leave a partner, either by the partner themselves or by rival criminal groups. Additionally, where a woman is believed to be the witness of a crime, they will be “targeted and retargeted by the perpetrator.”[23] In this case, the claimant has intimate knowledge about AS’s operation which could put him at risk if she takes it to police. Sources further state that organized crime groups can track and retaliate against individuals throughout Mexico using spyware and information technology or connections within law enforcement.[24] While I acknowledge that we don’t know which criminal organization AS is working with, the objective evidence suggests that cartels often work together based on constantly evolving interests and strategic alliances.[25]
[37] Given the foregoing, I find that the claimant has established that the AS has the means and motivation to locate her anywhere in Mexico, and that, as such, she would face a serious possibility of persecution anywhere in Mexico. For this reason, I do not need to consider the second prong of the test and find that there is no viable IFA for the claimant.
CONCLUSION
[38] For the forgoing reasons, I find that the claimant is a Convention refugee. The claim is therefore accepted.
(signed) Katarina Bogojevic
December 13, 2023
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board. October 31, 2023.
[3] Exhibit 2.
[4] Exhibit 1.
[5] Exhibit 4.
[6] Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 F.C.A. 404.
[7] R. v. Ryan, 2013 SCC 3 at para 55.
[8] Seydi v. Canada (Citizenship and Immigraiton), 2022 FC 1336, at para. 26.
[9] R v. Ruzic, 2001 SCC 24.
[10] R v. Ruzic, 2001 SCC 24, at para 61.
[11] Exhibit 3.
[12] National Documentation Package, Mexico, 29 September 2023, tab 5.22: Justice on Trial: Failures in criminal investigations of feminicides preceded by disappearance in the state of Mexico. Amnesty International. 20 September 2021. AMR 41/4556/2021.
[13] National Documentation Package, Mexico, 29 September 2023, tab 5.10: Domestic violence, including treatment of survivors of domestic violence; legislation; protection and support services available, including psychological services, particularly in Mexico City and Mérida (2017–September 2020). Immigration and Refugee Board of Canada. 11 September 2020. MEX200311.E.
[14] National Documentation Package, Mexico, 29 September 2023, tab 5.3: Mexico: Domestic Violence. COI Compilation. Austrian Red Cross. Austrian Centre for Country of Origin and Asylum Research and Documentation. May 2017.
[15] National Documentation Package, Mexico, 29 September 2023, tab 5.10: Domestic violence, including treatment of survivors of domestic violence; legislation; protection and support services available, including psychological services, particularly in Mexico City and Mérida (2017–September 2020). Immigration and Refugee Board of Canada. 11 September 2020. MEX200311.E.
[16] National Documentation Package, Mexico, 29 September 2023, tab 5.27: “I Don’t Want to Disappear”: How Mexico’s Criminal Violence Reshapes Women’s Lives. International Crisis Group. Angélica Ospina-Escobar. 19 April 2023.
[17] National Documentation Package, Mexico, 29 September 2023, tab 5.27: “I Don’t Want to Disappear”: How Mexico’s Criminal Violence Reshapes Women’s Lives. International Crisis Group. Angélica Ospina-Escobar. 19 April 2023.
[18] National Documentation Package, Mexico, 29 September 2023, tab 5.20: Women whose past partners are involved in criminal activities and implications for their safety (2019–August 2021). Immigration and Refugee Board of Canada. 27 August 2021. MEX200735.E.
[19] National Documentation Package, Mexico, 29 September 2023, tab 5.10: Domestic violence, including treatment of survivors of domestic violence; legislation; protection and support services available, including psychological services, particularly in Mexico City and Mérida (2017–September 2020). Immigration and Refugee Board of Canada. 11 September 2020. MEX200311.E.
[20] National Documentation Package, Mexico, 29 September 2023, tab 5.22: Justice on Trial: Failures in criminal investigations of feminicides preceded by disappearance in the state of Mexico. Amnesty International. 20 September 2021. AMR 41/4556/2021.
[21] National Documentation Package, Mexico, 29 September 2023, tab 5.3: Mexico: Domestic Violence. COI Compilation. Austrian Red Cross. Austrian Centre for Country of Origin and Asylum Research and Documentation. May 2017.
[22] National Documentation Package, Mexico, 29 September 2023, tab 5.20: Women whose past partners are involved in criminal activities and implications for their safety (2019–August 2021). Immigration and Refugee Board of Canada. 27 August 2021. MEX200735.E.
[23] National Documentation Package, Mexico, 29 September 2023, tab 5.20: Women whose past partners are involved in criminal activities and implications for their safety (2019–August 2021). Immigration and Refugee Board of Canada. 27 August 2021. MEX200735.E.
[24] National Documentation Package, Mexico, 29 September 2023, tab 7.8: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatán state, State of Campeche, and Baja California Sur); the ability and motivation of organized … Immigration and Refugee Board of Canada. 8 September 2021. MEX200732.E.
[25] National Documentation Package, Mexico, 29 September 2023, tab 7.18: 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. MEX200313.E; National Documentation Package, Mexico, 29 September 2023, tab 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017-August 2019). Immigration and Refugee Board of Canada. 15 August 2019. MEX106302.E.