2023 RLLR 36

Citation: 2023 RLLR 36
Tribunal: Refugee Protection Division
Date of Decision: December 15, 2023
Panel: Candace Salmon
Counsel for the Claimant(s): Bilal Kinaci
Country: Mexico
RPD Number: TC3-32964
Associated RPD Number(s): TC3-32967, TC3-32968, TC3-32978
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: So I’ve considered your testimony and other evidence in this case. And these are the reasons for my decision in the claim of Principal Claimant, XXXX XXXX XXXX XXXX, an Associate Claimant XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX who claim to be citizens of Mexico and claim refugee protections pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       The allegations of your claim are found in a Basis of Claim form documents at Exhibits 2.1 to 2.4 and the amended narrative at Exhibit 7. You have alleged the following: You are citizens of Mexico, you fear harm at the hands of the CJNG also known as the Jalisco Cartel. You paid extortion money to this cartel from XXXX 2019 until XXXX of 2022, but couldn’t pay a higher amount demanded in XXXX of 2022.

[3]       The Principal Claimant was attacked and assaulted due to the failure to pay additional money. And you further alleged that there is no state protection or Internal Flight Alternative available to you anywhere in Mexico.

[4]       There is a framework of analysis for claims under Section 97(1)(b) of the Act and I’m going to explain how your situation meets these requirements. The first stage is to determine the risk faced by the claimant. An ongoing or future risk is a real risk that a claimant continues to face. For example a claimant may face a risk of death, sexual violence or other serious harm. In this case, the Principal Claimant faces, on a balance of probabilities, a risk of death, sexual violence or future harm from the Jalisco Cartel. The basis of this is historical because the Claimant has already experience the latter two elements in Mexico and has received threats to her life from the cartel relating to non-payment of extortion moneys.

[5]       The claimants have been paying extortion fees for a period of 2019 to 2022. They were targeted by the cartel as XXXX business owners. They were repeatedly threatened by phone and in-person between 2019 and 2022, including threats to their family and attacks on the Principal Claimant’s father. There is a pattern of harassment from the Jalisco Cartel, and the harassment and demands have only increased as they raised the extortion amount from XXXX XXXX XXXX pesos to XXXX XXXX XXXX pesos in XXXX of 2022, which caused the claimants to flee. This shows a high degree of risks faced by the Principal Claimant and her family.

[6]       The second stage is to determine whether the risk is generally faced by others. The risk faced by the Principal Claimant and her family is of a serious nature, and it is different from the risks generally faced by others in the country. They were targeted as XXXX business owners while everyone in Mexico is touched by cartel activities, particularly Jalisco, which is at some level throughout the entire country. The direct, immediate risk of harm is significant and more for these claimants because they have defied the cartel and fled the country.

[7]       Further, the cartel has continued to harass their family they’ve left behind in Mexico, and attacked or injured the Principal Claimant’s brother. There is a clear risk of harm that is not generalized.

[8]       I find their identities as nationals of Mexico are established by the documents provided namely their passports and supporting identity documents in Exhibit 1. I find that they faced a Section 97 risk in Mexico.

[9]       On the matter of credibility, when a claimant swears to the truth of their allegations it creates a presumption that those allegations are true, unless there is a reason to doubt that. In your case, when considering all of the evidence, I find that the testimony and evidence to be credible on the balance of probabilities, I found no substantial reason to doubt any of your truthfulness.

[10]     The Principal Claimant testified in a very straightforward, direct and convincing manner. You were able to answer all of the questions that I asked. And there was no hesitation. I found that you did not exaggerate your testimony or omit any details. There were some material inconsistencies between your testimony and the documentary evidence. But in every instance you were able to provide a reasonable explanation. I find you to be a credible witness on the whole and therefore I believe what you have alleged in support of your claim.

[11]     I have no reason to doubt the authenticity of the documentary evidence that you disclosed and find that the evidence supports and corroborates your allegations. For example, you disclosed letters of support from family members corroborating what you’ve said in the Basis of Claim form, you provided prior employment records and photos showing injuries that you and your brother sustained.

[12]     On the matter of objective basis of future risks, based on the credibility of your allegations and the documentary evidence that I’m about to set out, I find that you have established on a balance of probabilities that if you were to return to Mexico, you would be subjected to violence at the hands of the Jalisco Cartel. The cartel is also identified as CJNG. And it’s reportedly among the largest and most powerful cartels operating in Mexico, and reportedly exists in the majority of Mexican states and is embroiled in a patchwork of rivalries nationwide. InSight Crime, a foundation that studies organized crime in Latin America and the Caribbean, reports that Jalisco is truly the dominant criminal actor in multiple Mexican states.

[13]     A 2023 report produced by the IRB’s Research Directorate cite sources describe Jalisco Cartel as distinct among other major criminal groups in its extreme and public use of violence and its brazenness, brutality and use of public executions. The objective evidence also indicates that in addition to drug trafficking and kidnapping the cartel often engages in extortion.

[14]     According to one researcher interviewed by the IRB’s Research Directorate, CJNG’s extortion of civilians has increased in the last two years, particularly in the territories under their control in Central Mexico.

[15]     On the matter of state protection, there is a presumption that states are capable of protecting their own people, their own citizens except where the state is completely broken down. And that presumption is rebuttable by a claimant with clear and convincing evidence of state’s unwillingness or inability to protect them.

[16]     I accept the Principal Claimant sought state protection at previous times in her life and the assistance was not forthcoming. In light of her experiences and the documentary evidence (inaudible 02:34:36) I find that there is clear and convincing evidence that state protection in Mexico is inadequate for your circumstances. I find the presumption has been rebutted in these claims.

[17]     The documentary evidence establishes that the cartel throughout the country aim to dominate and intimidate local politicians and law enforcement. They infiltrate state authorities, and they use corrupt law enforcement agents to obtain information about the people that they pursue.

[18]     Jalisco is capable of confronting and corrupting the Mexican state at every level of government, employing bribes or bullet strategies with state authorities, and they have a history in infiltrating police forces. Police corruption remains a serious problem in Mexico. There is little indication of improvement in recent years. In most Mexican states, local police have been infiltrated by organized crime.

[19]     Analysis of drug trafficking, organized crime and human trafficking, human rights violations also indicate the highlight the role of police at all levels in facilitating illegal business, working for organized crime and systematically violating human rights. A report from Human Rights Watch state that since the beginning of the war on organized crime in 2006, the rates of violent crime has skyrocketed in Mexico. Although authorities often blame this violence on criminal groups, most crimes are not investigated and those responsible are never identified or prosecuted.

[20]     Similarly, according to the United States Department of State impunity and extremely low rates of prosecution remain a problem for all types of crime in Mexico. Criminal organization thus — they continue to carry out human rights abuses and widespread killings throughout the country with the majority of their crimes going uninvestigated and unprosecuted.

[21]     The objective evidence also shows 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 says that in Mexico organized crime is deeply permeated police institutions. The IRB report site sources that indicate that low pay contributes to police corruption and that local police are particularly vulnerable to corruption, infiltration from organized crime groups as they are overworked, underpaid and understaffed.

[22]     Now, on determining whether you could live safely in any other part of Mexico, for a refugee claim to succeed a claimant has to establish on a balance of probabilities that the claimant would face a serious possibility of persecution forward more likely than not be subjected to a risk of their life, a risk of cruel and unusual treatment or punishment or danger of torture in the proposed IFA, or it is objectively unreasonable and unduly harsh in all the circumstances to ask the claimant to relocate to the proposed IFA. So, I have to consider if the Jalisco Cartel would have the motivation and capacity to pursue you if you relocated in Mexico.

[23]     Now, I acknowledge that Mexico is a large country made up of about 130 million people, but after considering all the evidence I find that you have established on a balance of probabilities that your agent of harm has the motivation as well as the capacity to locate you throughout Mexico.

[24]     I have considered the Jalisco Cartel’s level of interest in you in determining whether on a balance of probabilities there is a risk for you in Mexico. I accept your testimony that they tracked and pursued you while you had a business, they’ve threatened you, they called you, they attacked you and they continued to look for you and have attacked members of your family before and after you left Mexico.

[25]     I find that the test for an IFA fails on the first prong of the case. There is nowhere in Mexico that you could be safe and out of reach of the Jalisco Cartel. The cartel has a growing presence in the country. They have the means and the motivation to track individuals nationally. The information and the country conditions also establishes that the cartel is powerful and violent, and InSight Crime reports that the changing criminal dynamics in Mexico mean that there is no guarantee that zones currently considered relatively safe are going to remain so. Moreover according to a 2020 report from the U.S. Drug Enforcement Agency, the Jalisco Cartel is one of the fastest growing cartels in Mexico and they already have a significant presence everywhere.

[26]     A criminology professor interviewed by the IRB’s Research Directorate also said that Mexico’s ports of entry including airports and land borders are strategic locations for the Jalisco Cartel, smuggling and that the group placed its lookouts there such as police officers, soldiers, cartel members and port employees who report back to the cartel. And the criminal groups also control a lot of the major highways in Mexico, where they have install roadblocks and checkpoints to stop commuters, verify their identification, verify their identity and potentially identified potential rivals and impose extortion payments. Other sources report that the cartel has gained access to the Mexico City International Airport through its presence and ties to local gangs in Mexico City.

[27]     The objective evidence also indicates that a personal vendetta or a debt can trigger a group to target a person even outside of the cartel zone’s territory. And gangs can use corrupt law officials to obtain information about the people that they are pursuing.

[28]     I find all of the evidence cited above and on a balance of probabilities that you could be located and harmed by the agents of harm anywhere in Mexico. And for that reason I find on a balance of probabilities that they would pursue and harm you throughout the country, because of this there is no viable internal flight location for you in that country.

[29]     I note that all of the Associate Claimants are linked to the Principal Claimant as her spouse and children. She testified that her husband was extorted for years via phone and in-person and was physically attacked in 2021 as well as her brother having been attack since she left the country and came to Canada.

[30]     I find that the three Associate Claimants would be in danger in Mexico due to their relationship to the Principal Claimant as her immediate family. 

[31]     The evidence supports that the Jalisco Cartel is tracking and harassing family of the Claimant, all of the Claimant that are left behind in Mexico, and that they have committed acts of violence. Therefore I find there is a forward-facing risk for all of the claimants anywhere in Mexico.

[32]     I concluded on the balance of probabilities that the claimants face a personalized and prospective risks to their lives or a cruel and unusual treatment or punishment in every part of Mexico. This is a specific personal risk faced by them as opposed to an indiscriminate or random risk generally faced by others.

[33]     I therefore find that the claimants are all persons in need of protection under Section 97(1)(b) of the Immigration and Refugee Protection Act and we accept the claims.

[34]     The hearing is now concluded.

[35]     COUNSEL: We would like to say, thank you so much Madam Member.

[36]     MEMBER: Thank you all very much for you time today and for your testimony, and also for the 45 minutes that I needed to do that. I appreciate it, and I wish you all a wonderful weekend and time in Canada. Thank you.

[37]     COUNSEL: And they will be safe after now.

[38]     CLAIMANT: Thank you very much. We also wish you a very nice weekend, and really our sincere, most sincere gratefulness for everything.

[39]     MEMBER: Take care.

[40]     CLAIMANT: Thank you.

——— REASONS CONCLUDED ———