2023 RLLR 35
Citation: 2023 RLLR 35
Tribunal: Refugee Protection Division
Date of Decision: December 6, 2023
Panel: Danijela Stajic
Counsel for the Claimant(s): Terry S. Guerriero
Country: Mexico
RPD Number: TC3-32706
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] This is the decision in the claim of XXXX XXXX XXXX XXXX, who alleges to be a citizen of Mexico, and is seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
ALLEGATIONS
[2] The claimant’s allegations are set out in full in her Basis of Claim form and attached narrative (BOC).[2] In summary, the claimant alleges that she worked for the XXXX XXXX at the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, a XXXX XXXX in charge of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. On XXXX XXXX, 2021, the claimant was approached by members of the Cartel Jalisco Nueva Generacion (CJNG) and pressured to provide them information about XXXX XXXX. They also threatened to harm her family if she failed to comply with their demands. The claimant resigned from her job, filed a report with the authorities and moved to another city. The claimant was accosted on two subsequent occasions on XXXX XXXX, 2022, and XXXX XXXX, 2022. The cartel members located the claimant at her new residence and since her departure from Mexico, they assaulted her friend, XXXX XXXX, while seeking to find out the claimant’s whereabouts. The claimant alleges that she faces a risk of harm in Mexico from the CJNG because she refused to cooperate with them and provide the information they wanted.
DETERMINATION
[3] The panel finds that the claimant is a person in need of protection, pursuant to subsection 97(1) of the IRPA, in that her removal to Mexico would, on a balance of probabilities, subject her personally to a risk to life or to a risk of cruel and unusual treatment or punishment.
ANALYSIS
Identity
[4] The claimant’s identity as a national of Mexico is established by her testimony and passport in evidence.[3] The panel finds that she has established her personal and national identity on a balance of probabilities.
Nexus
[5] The panel finds that the allegations made by the claimant are criminal in nature. Victims of crime cannot generally establish a nexus to a Convention ground.[4] The panel has therefore assessed the claim under subsection 97(1) of the IRPA.
Credibility
[6] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.[5] However this presumption does not apply to inferences or speculation, for which there is no evidentiary basis.
[7] The claimant testified in a straightforward manner, consistent with her BOC narrative. Her responses to the panel’s questions were spontaneous and she did not embellish her testimony. The claimant provided detailed testimony about the incidents involving the CJNG. She testified that she feared for her safety and the safety of her family. She further testified about her efforts to seek help from the authorities and how her visible distress after being targeted by the CJNG was met with condescension and contempt by the Mexican authorities. The claimant further testified about the fear and anxiety that she experienced and how she struggled to leave her home. She was responsive to questioning and provided additional information and details that filled gaps in allegations set out in her BOC.
[8] The panel has no reason to doubt the credibility of the claimant’s allegations. The testimony was detailed, spontaneous, internally consistent and in line with the documentary evidence. The claimant has presented disclosure to corroborate her claim, including copies of the reports she filed with the office of the Attorney General, a copy of her rental agreement for her new residence in Cuernavaca, as well as letters from her mother and her friend, XXXX XXXX.[6] The panel has no reason to doubt the credibility of the documents and finds them probative. Accordingly, the panel assigns them full weight in corroborating the claimant’s allegations.
[9] Accordingly, the panel finds that the claimant has established her core allegations on a balance of probabilities.
Risk of Harm
[10] The panel finds that the claimant faces a personal, forward-looking risk to life or cruel and unusual treatment or punishment from the CJNG, which is not experienced generally by others. The first step of the analysis under subsection 97(1)(b) of the IRPA is to define the risk, while the second step involves comparing the risk to the risk faced by others generally.[7]
[11] The risk stems from the claimant’s former position as an XXXX for XXXX. The claimant testified that she was pressured to work for the cartel and disclose sensitive information to which she had access when they approached her on XXXX XXXX, 2021. However, she refused and immediately resigned from her position, filed a report with the authorities and moved to another city. The claimant was accosted again on XXXX XXXX, 2022, when she was leaving the organization where she performed volunteer work with a friend. The claimant was successful in evading the cartel members; however, they physically assaulted her friend, XXXX XXXX. On XXXX XXXX, 2022, the CJNG accosted the claimant outside of her new residence in Cuernavaca and threatened to kill her. Since the claimant’s departure from Mexico, the CJNG have once again assaulted her friend, XXXX XXXX, demanding that he reveal her whereabouts.
[12] The panel finds that the claimant faces of risk that is personal to her, considering she has been threatened and accosted by the agents of harm. The risk is on going and forward-looking, given the claimants credible testimony that the CJNG have approached her on multiple occasions, located her at her new place of residence and assaulted and threatened her friend while trying to discover her whereabouts. This shows that the agents of harm have an ongoing motivation to locate and harm the claimant. The risk is personal to the claimant and forward-looking.
[13] In assessing the proximity and the degree of the risk, it is important to consider the CJNG’s capacity. The CJNG is a powerful cartel which has presence in most Mexican states.[8] This cartel engages in a variety of criminal activities, including extortion, and uses extreme violence to achieve its goals.[9] The CJNG has also been known to work with corrupt police officers.[10] Based on the objective country documentation, the panel finds that the risk is proximate to the claimant and severe in degree, given that the CJNG is a powerful cartel which uses extreme violence and has the capacity to track and harm individuals in different parts of Mexico.
[14] The panel accepts the claimant’s allegations which show an escalating pattern of demands and threats towards the claimant. The agents of harm have demonstrated their capacity and motivation to track down the claimant in another of Mexico and to harm people close to her in search of information about her whereabouts. These factors further support the notion that the risk the claimant faces in Mexico is proximate and serious.
[15] The panel finds that the risk the claimant faces is not generalized. Mexico is a country of approximately 129 million people[11] with a high crime rate and prevalence of organized criminal activity.[12] People living in Mexico face risk of serious harm stemming from criminal activity. However, the panel finds that the claimant’s risk is greater in degree in different in nature that the risk faced by others generally. The claimant was approached and pressured to work for the cartel on account of the position that she held in the XXXX XXXX and threatened and harassed when she refused to cooperate. Most people in Mexico are not in this type of situation.
[16] In summary, the panel finds that the claimant has established that she faces a forward-looking personal risk of death or cruel and unusual treatment or punishment in Mexico from the CJNG.
State Protection
[17] The state is presumed to be capable of protecting its citizens, unless there is clear and convincing evidence to suggest otherwise.[13] The panel finds that the claimant has rebutted this presumption by showing that state protection available to her in Mexico is inadequate.
[18] There is ample information in the NDP to suggest that corruption is endemic in Mexico and permeates all levels of government institutions.[14] There are credible reports of police collusion with the cartels, kidnapping for ransom and taking bribes.[15] The objective documentary evidence further states that the CJNG is capable of confronting and corrupting the Mexican state at all levels of government.[16] The NDP specifically refers to instances of collaboration between the CJNG and corrupt police officers.[17]
[19] The claimant is at risk from individuals belonging to a powerful cartel. Given the corruption within the Mexican police force and the well-documented links between the CJNG and state actors, the claimant would not be offered adequate state protection on a balance of probabilities. The claimant testified that she went to the police and to the office of the Attorney General on three separate occasions to report the incidents when she was accosted and threatened by CJNG. However, the authorities never provided any assistance or protection to the claimant. This further supports the notion that the Mexican state is unable and/or unwilling to protect individuals against powerful cartels.
[20] The panel therefore finds on a balance of probabilities that the claimant has rebutted the presumption of state protection with clear and convincing evidence.
Internal Flight Alternative
[21] The panel has considered whether a viable IFA exists for the claimant. During the preliminary stage of the hearing and prior to beginning examination, the panel gave the claimant and counsel notice that Monterrey, Mérida, and Campeche would be considered as IFAs for the claimant.
[22] It is well established that international protection is a measure of last resort. The Federal Court of Appeal has held that there is a two-pronged test for assessing an IFA.[18]
(1) The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA; and
(2) the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claim, for the claimant to seek refuge there.
[23] Both prongs of the test must be satisfied to find that a claimant has an IFA. Once the issue of IFA has been raised and potential IFAs identified, the burden of proof rests with the claimant to show that they do not have an IFA.
[24] The panel finds that the claimant faces a risk of harm in Mexico because there is sufficient evidence to establish, on a balance of probabilities that the agents of harm have the means and the motivation to locate the claimant in Mexico.
First Prong – Safety
[25] Mexico is a large country with a population of over 129 million people covering an area of over 1.9 million sq. km.[19] The law provides for freedom of movement and the right to travel within Mexico. The panel must assess whether the agent of harm has both the “means and motivation” to locate the claimant in the proposed IFA locations. In making this assessment the panel considered the area of operation and level of interest in the claimant by the agent of harm.
The agents of harm have the means and motivation to locate the claimant in the IFA
[26] The panel finds that the CJNG have the capacity to locate the claimant in any part of Mexico. The country condition evidence states that major cartels can locate individuals anywhere Mexico, if there is motivation to do so.[20] Cartels employ a variety of methods, including using “private investigators to track people, as well as property records in the US and Mexico and placing GPS trackers on cars.”[21] Criminal groups use informants as “systems of local surveillance.”[22] Cartels have been known to bribe individuals working for phone companies to track phone calls, text messages or social media activity.[23] Major cartels also have connections with corrupt government officials and police, who may provide the cartels with information from the official databases in order to locate individuals.[24] The most recent NDP update states that the CJNG can locate individuals of interest in any part of Mexico, even if they are not the dominant criminal actor there.[25]
[27] Based on the country condition evidence, the CJNG have the capacity to locate the claimant in any part of Mexico. Further, the evidence before the panel indicates that the agents of harm have previously found the claimant outside of her hometown, confirming that they have the means to track down individuals of interest.
[28] The panel further finds that the agents of harm are motivated to locate and harm the claimant based on the persistence of their efforts.
[29] The objective evidence states that “criminal groups are motivated to track certain individuals because they steal or lose money; due to personal rivalries; for political incentives/reasons or due to personal vengeance; perceived betrayal; public exposure of relationships with public officials, politicians or investments; or cooperation with authorities as informants or collaborative witnesses.”[26] In this case, the claimant has a profile as someone who was employed for a XXXX XXXX in charge or XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. She was privy to sensitive information regarding XXXX XXXX, including its location, and was in charge of ensuring that the XXXX XXXX XXXX XXXX XXXX XXXX XXXX.
[30] The claimant did not comply with the cartel’s demands to disclose this information to them. Instead, she promptly resigned, reported the incident to the police and moved to another city. Despite taking these steps to ensure her safety, the claimant was accosted on two subsequent occasions and the agents of harm located her at her new residence in another city. The agents of harm have also assaulted the claimant’s friend when seeking to obtain information about the claimant’s whereabouts. The panel therefore finds that the agents of harm have demonstrated continued motivation to harm the claimant over time.
[31] The panel finds that the claimant has established on a balance of probabilities that the agents of harm have the means and motivation to find her in anywhere in Mexico. Accordingly, the panel finds on a balance of probabilities that the claimant would be subject personally to a risk to her life, to a risk of cruel and unusual treatment or punishment, or to a danger of torture in Mexico. From this perspective, the panel finds that the proposed IFA locations fail under the first prong of the test. Accordingly, the panel finds that the claimant does not have a viable IFA in Mexico.
CONCLUSION
[32] Based on the totality of the evidence and the analysis above, the panel finds that the claimant is a person in need of protection pursuant to sections 97(1)(a) or (b) of the Act.
[33] Accordingly, her claim is accepted.
(signed) Danijela Stajic
December 6, 2023
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Exhibit 2.
[3] Exhibit 1.
[4] Kang, Hardip Kaur v. M.C.I. (F.C., no. IMM-775-05), Martineau, August 17, 2005; 2005 FC 1128, at para.10.
[5] Maldonado v. Canada (Minister of Employment and Immigration), [1979] F.C.J. No. 248 (FCA)(QL), [1980] 2 FC 302 (CA), at para 5.
[6] Exhibit 5.
[7] X (Re), 2021 CanLII 95825 (CA IRB), at par. 25.
[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.
[9] Ibid.
[10] 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.
[11] National Documentation Package, Mexico, 29 September 2023, tab 1.2: Mexico. The World Factbook. United States. Central Intelligence Agency. 11 September 2023.
[12] National Documentation Package, Mexico, 29 September 2023, tab 7.2: Mexico: Organized Crime and Drug Trafficking Organizations. United States. Congressional Research Service. June S. Beittel. 7 June 2022. R41576.
[13] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85 at 724.
[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] 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.
[16] National Documentation Package, Mexico, 29 September 2023, tab 7.17: The Strategic Implications of the Cártel de Jalisco Nueva Generación. Journal of Strategic Security. Nathan P. Jones. 2018.
[17] 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.
[18] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
[19] National Documentation Package, Mexico, 29 September 2023, tab 1.2: Mexico. The World Factbook. United States. Central Intelligence Agency. 11 September 2023.
[20] 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.
[21] 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.
[22] National Documentation Package, Mexico, 29 September 2023, tab 7.53: Profiles of individuals targeted and tracked by criminal organizations and cartels; tracking methods and motivations of criminal groups and cartels to track individuals (2021–August 2023) . Immigration and Refugee Board of Canada. 1 September 2023. MEX201601.E.
[23] 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.
[24] Ibid.
[25] 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.
[26] 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.