2023 RLLR 33

Citation: 2023 RLLR 33
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2023
Panel: Jessica Norman
Counsel for the Claimant(s): Daniel L. Winbaum
Country: Mexico
RPD Number: TC3-17271
Associated RPD Number(s): TC3-17313
ATIP Number: A-2023-01721
ATIP Pages: N/A

                                      

REASONS FOR DECISION

 

[1]         This is the decision in the claims for refugee protection made by XXXX XXXX XXXX (the “principal claimant” or “PC”) and her adult daughter, XXXX XXXX XXXX XXXX (the “associate claimant” or “AC”). The claimants allege that they are citizens of Mexico and they are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “IRPA”). 

 

ALLEGATIONS

 

[2]         The claimants’ allegations are set out in their Basis of Claim (BOC) forms and in the narrative of the PC dated February 3, 2023,[1] and in an amendment to that narrative dated November 12, 2023.[2] In summary, the claimants allege that their lives have been threatened by members of the “Jalisco cartel”. They allege that in XXXX 2016 the PC’s son, XXXX XXXX XXXX XXXX (“XXXX”), opened a XXXX in their hometown of XXXX, in the Mexican state of Vera Cruz. In XXXX 2017, members of the cartel came to the XXXX and demanded that XXXX pay them XXXX XXXX XXXX pesos a month, and threatened to harm if he failed to do so. He refused their demands and told them he did not make enough money to pay what they had asked. They warned him that they would return at the end of the month. XXXX recognized the men, as they had all grown up together in XXXX. At the end of the month, XXXX was confronted on the street by the cartel members as he walked home. They assaulted him, threatened to kill him, and attempted to drag him into their vehicle. He was able to escape, and fled to the city of Oaxaca where his father lives, and where he hid until he left Mexico in XXXX 2018. XXXX made a refugee claim in Canada, but that claim is currently suspended due to pending criminal charges.

 

[3]         After her son left their hometown, the cartel members questioned the PC about his whereabouts. She denied having any knowledge of his location. One evening in XXXX 2021, the PC was returning home from work when she was stopped by three cartel members, all of whom she knew by name. When she again denied any knowledge of her son’s whereabouts, they assaulted her, leaving her with a broken nose and a swollen and bleeding face. They threatened that she would continue to face such treatment if she didn’t reveal her son’s location. At the clinic where she received medical treatment, the PC was encouraged to report the assault to the police but declined to do so out of fear of reprisals should the cartel members discover that she had gone to the authorities. The PC alleges that the authorities are corrupt and pass information to the cartel. She also alleges that one of the local cartel leaders has a brother in the army. Following her medical treatment, the PC immediately fled to Oaxaca with her daughter, the associate claimant. The PC sent them money from Canada so that they could remain in hiding without needing to work. The claimants wanted to flee to Canada but had to wait until they could be vaccinated against COVID-19. They were finally able to leave Mexico in XXXX, and arrived in Canada on XXXX XXXX, 2021.

 

DETERMINATION

 

[4]         I find that the claimants are persons in need of protection pursuant to subsection 97(1) of the IRPA as they face a risk to their lives, a danger of torture and/or a risk of cruel and unusual treatment or punishment in Mexico that is not faced generally by other Mexican citizens.

 

ANALYSIS

 

Preliminary Issue – Post-hearing disclosure

 

[5]         Counsel for the claimants submitted an application for post-hearing disclosure of the birth certificate of the PC’s son, who also appeared as a witness at the claimants’ hearing, as well as copies of photographs of the XXXX he owned in Mexico, and a copy of a threat made against him on Facebook. While I find that the documents could have been provided sooner, their relevance, probative value and newness is clear on their face and weighs in favour of admitting them. The birth certificate is directly responsive to a concern I raised at the hearing – namely, it corroborates the familial relationship between the claimants and XXXX. The photograph and Facebook screenshot are translations of images XXXX showed me at the hearing on his phone. The documents are admitted as evidence.[3]

 

Identity

 

[6]         The claimants’ Mexican passports were seized by Immigration, Refugees and Citizenship Canada when they initiated their refugee claims. Copies of those passports are part of the evidence before me,[4] and I have no reason to doubt the genuineness of those documents. I find that the claimants’ passports and their testimony establish, on a balance of probabilities, their personal identities as well as their national identities as citizens of Mexico.

 

Nexus

 

[7]         The claimants allege a risk to their lives at the hands of an organized criminal group. The risk they face does not have a nexus to the Refugee Convention. As a result, I analyzed these claims under subsection 97(1) of the IRPA.

 

Credibility

 

[8]         A refugee claimant’s sworn testimony is presumed truthful unless there are valid reasons to doubt the veracity of their allegations. In this case, I found both the PC and the AC to be credible witnesses. Their testimony was entirely consistent with their narrative and with the other evidence in the claims. Their claims were also supported by the credible testimony of the witness, who is the son of the PC and the brother of the AC. He gave candid and straightforward testimony that was entirely consistent with the claimants’ BOC narrative and their testimony.

 

[9]         I do note that the claimants submitted very little documentary evidence in support of their claims. I asked the PC if she had attempted to obtain copies of her medical records pertaining to the treatment she received after the XXXX 2021 assault. She testified that she did try to obtain the records but that she was unable to access them from outside Mexico. I also asked her if she tried to obtain a letter from XXXX’ father corroborating that he fled to Oaxaca in 2017 after he was attacked by the cartel. She testified that she did not consider doing so because they do not communicate. During his own testimony XXXX stated that he asked his father for a letter, but that he did not receive a response. He testified that his father was rarely part of their lives as they were growing up. I asked the PC who she stayed with in Oaxaca when she and the AC hid there after her own assault and she testified that she stayed with her son’s uncles, but that it didn’t occur to her to ask them for evidence corroborating this. She testified that thinking about the threats against her and her family in Mexico makes her very anxious and that she avoids revisiting it as much as possible. I asked her if she has sought counseling since arriving in Canada and she testified that she is considering seeing a XXXX.

 

[10]      I also asked the PC why she had not submitted evidence of the threats made against her son since his arrival in Canada. She stated that her son had the evidence and I could ask him about it. During his own testimony, XXXX stated that he had received threats from the cartel on Facebook as recently as XXXX 2022. I asked him if he could show me these threatening messages, and he was able to do so on his phone. Similarly, while the claimants did not submit documents in advance of the hearing corroborating that the PC’s son ran a XXXX, during the hearing he was able to show me multiple pictures posted on Facebook corroborating the existence of the XXXX, including screenshots promoting various events, all of which had been posted within the timeframe that he testified he was operating the business.

 

[11]      The claimants also provided copies of photographs of the PC[5] and of her son,[6] wherein they both have significant injuries to their face that appear to be consistent with physical assault. While the photographs are not inherently probative of the cause of those injuries, when I consider the photos alongside the credible testimony of the PC and XXXX as to the source of those injuries, I am willing to place weight on the photos as further corroborating the claimants’ allegations that both the PC and her son were violently assaulted by members of the Jalisco cartel.

 

[12]      I did have concerns about the claimants’ delay in filing their refugee claims, and I carefully considered whether this delay undermines their credibility. The claimants arrived in Canada on XXXX XXXX, 2021, but did not file refugee claims until late 2022, after they were discovered by CBSA to have overstayed.

 

[13]      I asked them to explain the delay. The PC testified that her son’s refugee claim was suspended due to pending criminal charges and that she had been worried that if she started the refugee claim process while his claim was suspended it could negatively affect him. She testified that they decided to file their claims after CBSA came to their home and told them they would be deported if they did not. The PC was candid in her testimony, including when I asked her if their legal status in Canada had expired by the time they filed their claims. She was straightforward and forthright in response to my questions, and readily acknowledged that she had been aware that their status had expired six months after their arrival in Canada. While their delay was undoubtedly imprudent, the claimants’ explanation for that delay is coherent. I find that on a balance of probabilities the claimants’ failure to file refugee claims sooner does not undermine their credibility.

 

[14]      In summary, I find that the claimants have presented sufficient credible evidence, through their testimony, the witness’ testimony, and the supporting evidence they did provide, to establish on a balance of probabilities that they were targeted by the Jalisco Cartel, an organized criminal group; that the PC was threatened and brutally assaulted by cartel members who were seeking information about her son’s location; and that since his arrival in Canada the cartel has continued to make threats against the PC’s son.

 

Forward-facing risk to life

 

[15]      I find that the claimants’ fear of harm in Mexico is objectively well-founded. In reaching this conclusion, I considered the documents in the National Documentation Package (NDP) for Mexico dated September 29, 2023.[7]

 

[16]      The Jalisco Cartel, or “Jalisco New Generation Cartel” (“CJNG”), is reportedly among the largest and most powerful cartels currently operating in Mexico, and reportedly “exists in the majority of Mexican states” and is “embroiled in a patchwork of rivalries nationwide”.[8] Insight Crime, a foundation that studies organized crime in Latin America and the Caribbean, reports that the CJNG is “truly the dominant criminal actor” in nine different Mexican states, including the claimants’ home state of Veracruz.[9] A 2023 report produced by the IRB’s Research Directorate cites sources who described the CJNG as “distinct among other major criminal groups through its ‘extreme and public use of violence’ or its ‘brazenness, brutality’ and use of ‘public executions’” [sources omitted].[10]

 

[17]      The objective evidence also indicates that in addition to drug trafficking and kidnapping, the CJNG engages in extortion. According to one researcher interviewed by the IRB’s Research Directorate for its 2023 report, “CJNG’s extortion of civilians has increased in the last two years, particularly in territories under their control in central Mexico.”

 

[18]      Moreover, a 2021 report from the IRB’s Research Directorate cites sources who report that “criminal groups abduct and ‘torture’ relatives in order to find information about the targeted individual’s whereabouts”.[11] The 2023 IRB report states that, “in particular”, the CJNG targets “women and family members”, who are “‘used in symbolic attacks’ meant to ‘send a message’ to rivals or the communities where they operate”.[12]

 

[19]      After considering all of the evidence, I find that the claimants have established that they personally face a risk to their lives that is not faced generally by the population of Mexico.

State Protection

[20]      There is a presumption that states are capable of protecting their own citizens, except where the state has completely broken down. That presumption is rebuttable by a claimant with “clear and convincing” evidence of a state’s unwillingness or inability to protect. I find that the presumption has been rebutted in these claims.

 

[21]      A report from Human Rights Watch states that “[s]ince the beginning of the ‘war’ on organized crime in 2006, rates of violent crime have skyrocketed in Mexico, reaching historic highs under the administration of current President Andrés Manuel López Obrador, who took office in December 2018. Although authorities often blame this violence on criminal groups, most crimes are not investigated and those responsible are never identified or prosecuted”.[13] Similarly, according to the U.S. Department of State, “impunity and extremely low rates of prosecution” remain a problem “for all crimes” in Mexico.[14] Criminal organizations thus continue to carry out human rights abuses and widespread killings throughout the country with impunity, with the majority of their crimes going “uninvestigated and unprosecuted.”[15]

 

[22]      Moreover, the objective evidence indicates that in many cases Mexican police have been found to have colluded with organized criminal groups. A 2020 report produced by the IRB’s Research Directorate cites a 2017 article on police in Latin America from InSight Crime, which states that “[i]n Mexico, organized crime has deeply permeated police institutions”,[16] while a 2021 report cites sources who state that upwards of seventy to eighty percent of police forces in Mexico have been infiltrated by organized crime.[17] The 2023 IRB report cites sources who indicate that “low pay contributes to police corruption” and that “[l]ocal police are particularly vulnerable to corruption and infiltration from organized crime groups, as they are overworked, underpaid and understaffed”.[18] 

 

[23]      After considering all the evidence, I find that the claimants would not have access to adequate state protection from the CJNG in Mexico.

 

Internal Flight Alternative

 

[24]      For a refugee claim to succeed, claimants must establish that there is nowhere safe within their country of nationality to which they can reasonably be expected to relocate.[19] I proposed Quintana Roo and Yucatan as potential IFAs in this case.

 

[25]      The two-pronged test for an IFA was articulated by the Federal Court of Appeal in Rasaratnam v. Canada. For a claim to succeed, a claimant must establish, on a balance of probabilities, that:

 

a)     the claimant would face a serious possibility of persecution, or would more likely than not be subjected to a risk to their life, a risk of cruel and unusual treatment or punishment, or a danger of torture in the proposed IFA; or

 

b)    it is objectively unreasonable or unduly harsh, in all the circumstances, to ask the claimant to relocate to the proposed IFA.[20]

 

[26]      After considering whether the agents of harm have both the motivation and the means to pursue the claimants in the proposed IFAs, I find that the test for an IFA fails on the first prong in these claims.

 

[27]      With respect to motivation, the evidence before me suggests that the Jalisco cartel continues to be interested in punishing XXXX – and the claimants in lieu of him – for his refusal to pay them. XXXX testified that when he was initially asked by the cartel for monthly payments, he told them he could not afford to pay them and that he would simply have to close his business. The cartel told him that was not an option. He testified that he believes they remain angry at him for failing to follow their orders. The PC also testified that she believes the cartel is motivated by vengeance and a desire to make an example out of those why defy them. She testified that they don’t forgive those who fail to comply with their demands. The objective evidence corroborates that this can indeed be a motivation for organized criminal groups in certain cases, listing “personal rivalries”, “personal vengeance” and “perceived betrayal” as among the potential motivations for criminal groups to track certain individuals.[21]

 

[28]      The claimants have also credibly established that the cartel has continued to pursue and threaten XXXX since he fled XXXX in 2017. During his testimony he stated that when he arrived in Oaxaca he had intended to stay there permanently. He believed he would be safe there until, seven or eight months into his stay, individuals who appeared to be associated with the cartel appeared at the home of his aunt. When she spoke to them through her intercom they asked for XXXX. She denied knowing anything about his location, and after that incident she told XXXX’ father that she didn’t want him around. After his arrival in Canada he began to receive threatening phone calls on his cell phone, and threatening messages on Facebook messenger, from the cartel members who attacked the PC in XXXX 2021, and most recently from a relative of one of those men. As mentioned above, he showed me one of those messages on his phone during the hearing, and a translated copy was admitted as post-hearing disclosure.[22] One of the messages stated that the cartel knew that XXXX was in Canada. I asked XXXX if he had any idea how the cartel members could know that and he testified that there are many temporary farm workers from Mexico who live in the Ontario community where he works, including individuals from XXXX, and that he suspects that such information was passed on to the cartel members, perhaps even inadvertently. 

 

[29]      With respect to means, I find that there is nowhere in Mexico that the claimants could be safely out of reach of the CJNG. Insight Crime reports that the “changing criminal dynamics” in Mexico “mean there is no guarantee that zones currently considered relatively safe are likely to remain so”.[23] Moreover, according to a 2020 report from the U.S. Drug Enforcement Agency’s 2020 National Drug Threat Assessment, the CJNG was among the “fastest growing” cartels in Mexico and already had a “significant presence in 23 of the 32 Mexican states”.[24] A criminology professor interviewed by the IRB’s Research Directorate also stated that “Mexico’s ports of entry, including airports and land borders, are ‘strategic locations’ for the CJNG’s smuggling of drugs, people and weapons, and the group places lookouts there, such as police officers, soldiers, cartel members and port employees” who report back to the cartel, and that criminal groups also “control ‘a lot’ of the major highways in Mexico, where they install ‘roadblocks and checkpoints’ to ‘stop commuters, verify their IDs, identify potential rivals’ and impose extortion payments”.[25] Furthermore, the 2023 IRB report cites a source who states that Mexican nationals deported from Canda or the U.S. are vulnerable to being targeted by the CJNG upon their return, and are “‘highly’ likely to be ‘noticed’ by the CJNG’s lookouts at Mexico’s ports of entry”.[26] Congruent with the claimants’ evidence, Insight Crime also states that the CJNG has “contacts” in many other countries, including Canada.[27]

 

[30]      In conclusion, I find that on a balance of probabilities the cartel members who threatened the claimants and assaulted the PC have both the means and the motivation to locate the claimants should they return to Mexico. They do not have a viable IFA.

 

CONCLUSION

 

[31]      Having considered all the evidence, I find that the claimants are persons in need of protection pursuant to subsection 97(1) of the IRPA. Their claims are therefore accepted.

 

 

(signed) Jessica Norman

 

November 20, 2023

 

 

 

[1] Exhibit 2, Basis of claim form and narrative.

 

[2] Exhibit 5, Personal and country disclosure package #1 (received November 12, 2023) [Exhibit 5].

 

[3] See Exhibit 8, Post-hearing disclosure package (received November 27, 2023) [Exhibit 8].

 

[4] Exhibit 1, Claim referral information from the Minister.

 

[5] Exhibit 5.

 

[6] Exhibit 6, Personal disclosure package #2 (received November 22, 2023).

 

[7] Exhibit 3, National Documentation Package, Mexico, 29 September 2023.

 

[8] National Documentation Package, Mexico, 29 September 2023, tab 7.7: The Jalisco New Generation Cartel (Cártel de Jalisco Nueva Generación, CJNG)  its activities, areas of operation, and influence; ability of the CJNG to track and retaliate against people who move to other areas of Mexico; the profiles of people they would be motivated to track and target (2021–August 2023) . Immigration and Refugee Board of Canada. 31 August 2023. MEX201603.E [Tab 7.7].

 

[9] Ibid.

 

[10] Ibid.

 

[11] 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 [Tab 7.8].

 

[12] Tab 7.7.

 

[13] National Documentation Package, Mexico, 29 September 2023, tab 2.3: Mexico. World Report 2023: Events of 2022. Human Rights Watch. January 2023.

 

[14] National Documentation Package, Mexico, 29 September 2023, tab 2.1: Mexico. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.

 

[15] Ibid.

 

[16] National Documentation Package, Mexico, 29 September 2023, tab 10.2: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available to report instances of corruption (2017–September 2020). Immigration and Refugee Board of Canada. 1 September 2020. MEX200314.E.

 

[17] Tab 7.8.

 

[18] Tab 7.7.

 

[19] Thirunavukkarasu v Canada (MEI), 1993 CanLII 3011 (FCA).

 

[20] Rasaratnam v Canada (MEI), [1992] 1 FC 706 (FCA).

 

[21] Tab 7.8.

 

[22] Exhibit 8.

 

[23] Tab 7.7.

 

[24] Ibid. 

 

[25] Ibid. 

 

[26] Ibid.

 

[27] Ibid.