2023 RLLR 40
Citation: 2023 RLLR 40
Tribunal: Refugee Protection Division
Date of Decision: November 17, 2023
Panel: Christine Price
Counsel for the Claimant(s): Martha Irene Murillo Sanchez
Country: Mexico
RPD Number: VC3-04511
Associated RPD Number(s): VC3-04512
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: These are the reasons for a decision.
[2] This is the introduction. These are the reasons for decision in the claims of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, who is the principal claimant, and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, who is the associate claimant, both of whom claim to be citizens of Mexico and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[3] In reaching this decision, I have considered the Chairperson’s Guideline, gender considerations in proceedings before the Immigration and Refugee Board.
[4] The claimants’ allegations are fully contained in their Basis of Claim forms and in their testimony at the hearing. In summary, the claimants are a common law couple. The principal claimant worked as both a XXXX XXXX for XXXX, a XXXX XXXX XXXX, and as a XXXX XXXX in a local XXXX XXXX in Monterrey, Mexico. He says that he provided reports to XXXX approximately once or twice per month and that he was invited to XXXX in 2016. And he XXXX XXXX to XXXX XXXX XXXX across all age groups. The XXXX XXXX where he XXXX had anywhere from 2,000 to 3,000 XXXX, and his XXXX averaged between 40 to 45 XXXX in each XXXX.
[5] He would XXXX for approximately two (2) to three (3) hours a day and when asked, he said that he XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, including professionalism and balance. It was while working in the XXXX in XXXX 2021 that he observed drug activity amongst the XXXX and decided to XXXX XXXX XXXX about this, to do a XXXX, to do a XXXX XXXX about the drugs in XXXX. Initially, he would start with his own XXXX, but then plan to expand to others. He had observed a XXXX receiving drugs from a cartel member and reported this to the XXXX XXXX, who at the time showed no interest in any dealing with that.
[6] Another — on another occasion, he saw a XXXX receiving a package and — sorry. I should back up. He reported — a few days after he witnessed this incident, he received a call from someone identifying themselves being with the CJ — the Cártel de Jalisco Nueva Generación, CJNG, and let them know that they were aware he had reported — he had been part of this incident and that he would be killed for sticking his nose where it did not belong. He thought it was one (1) of the XXXX or XXXX’s friends trying to scare him.
[7] A week later, the principal claimant witnessed a XXXX hiding a package. He took the XXXX to the XXXX. And when they — when the XXXX opened the bag, they found drugs. The XXXX said that he would call the police. Two (2) weeks later, the claimant was kidnapped by the cartel who physically abused him. He was held for approximately three (3) hours, during which time he was physically assaulted and told that he had to make up for their lost revenue by paying them XXXX XXXX XXXX pesos per month, and if he did not do this, they would take and harm the associate claimant. The principal claimant went to hospital after, and a police officer who overheard him speaking about his experience pulled him aside and advised him to hide. They told him that the cartel told them they would locate him at his home or XXXX to collect the payment. He moved to Mexico City, and in late XXXX, his mother reported that his car was burning in front of their home and that cartel members had told him her, when she had gone outside, to tell him that he should pay his debt.
[8] The principal claimant left for the United States in XXXX 2021, when hoping things would calm down in his absence. But his family continued — began receiving threats, saying he had to appear or else. The associate claimant went and stayed with friends at a home in a different state. The principal claimant returned to Monterrey in XXXX 2022 because his family not heard from the cartel since XXXX and thought they had forgotten about him. However, a few days after his return, the principal claimant was chased and shot after he had been at a family event. He left the — or they left (sic) the United States after this. The cartel called the claimant’s mother — or principal claimant’s mother again in XXXX 2022, telling her she had to return to Mexico and repay what he owed, and they would located him in the US too.
[9] Regardless, the claimants did return to Mexico in XXXX. They said they did so because they needed to get personal documents and to deal with their banks, which they — only they could deal with directly. They decided to come to Canada to try and rebuild their lives, after arriving — and arrived here in early XXXX. They fear returning to Mexico as they believe the cartel is motivated to locate, kill them. And they note that their family members, such as the associated claimant’s mother, has received threats directly about them. But also, the principal claimant’s mother and brother.
DETERMINATION
[10] I find the claimants to be Convention refugees as they have established a serious possibility of persecution in Mexico. The claimant’s personal and national identities of citizens of Mexico have been established on a balance of probabilities by the copy of their Mexican passports that are in evidence.
Nexus
[11] For a claimant to be considered a Convention refugee, they must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion. The principal claimant has a nexus to the Convention ground of political opinion as a XXXX who investigated cartels and for his role as a XXXX. The associate claimant has a nexus to the Convention ground of membership in a particular social group due to her familial connection to the claimant. To be considered persecution, the mistreatment suffered or anticipated must be serious and constitute the denial of a basic human right. Persecution can be considered the sustained or systemic violation of basic human rights.
[12] The particular — the principal claimant in particular is not free to express his political opinion. And given the experience of the principal claimant, the associate claimant is now also afraid to speak out. If the claimants were to express their beliefs or views based on objective evidence I will talk about, they would face a serious possibility of consequences, including intimidation, threats, and risk to their lives. I find the treatment and harm the claimants face amounts to serious breaches of their freedom of expression and physical integrity, and therefore, amounts to persecution.
Credibility
[13] 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. However, this presumption does not apply to inferences which are conclusions drawn from facts or speculation for which there is no evidentiary basis. In this case, I found the claimants to be credible, consistent, sincere, and forthright in their testimony. They provided ample detail without exaggerating or tailoring their evidence. And in particular, I found the principal claimant to be credible on a balance of probabilities about his work as a XXXX in Mexico, as a XXXX, and his experiences there, and the threat of harm for which he fears in Mexico.
[14] The claimants provided several items in support of their allegations, including a copy of the principal claimant’s XXXX degree that shows he studied XXXX. Additionally, there are several items relating to his employment as a XXXX, including a copy of his XXXX employee identification, invoices from them, dated XXXX XXXX and XXXX XXXX that were paid to the principal claimant for work he did for them, and a letter from their operations manager confirming the claimant’s employment with them and his attack by the cartel. They have also provided photos of the injuries the principal claimant sustained during his kidnapping, which indicate he experienced lacerations, bruising, and missing teeth.
[15] They have support letters from family members, including both claimants’ mothers, and a letter from the principal claimant’s brother who says the cartel has approached him at various times, pretending to be his brother’s former colleagues, and on at least one (1) occasion actually appeared at his home. A letter from the associate claimant’s sister says the cartel has visited her own home twice looking for the claimants. I have no reason to doubt the authenticity of these documents or the veracity of the photos and find they are relevant and probative. I give them high weight and I find that based on this evidence that the principal claimant was a XXXX as he alleged as well as a XXXX.
[16] I note the principal claimant went to the United States on XXXX XXXX, 2021, until XXXX XXXX, 2022, and then again from XXXX XXXX to XXXX XXXX, but did not make a claim during either visit. The principal claimant said that he initially went to the United States as he hoped the cartel would forget him. The second time he — the two (2) went together, they did not claim because at one (1) point he answered his phone and was threatened by a cartel member who indicated he knew he was in the US, and they did not feel safe there because of this. I find their explanation to be reasonable and do not find their failure to claim in the US undermines their overall credibility.
[17] I further note the principal claimant returned to Mexico on two (2) occasions. When asked why he returned especially to Monterrey, where the incidents caused him to leave occurred, he stated he believed that since his family had not heard from the cartel since XXXX 2022, that they had forgotten about him, and it was okay for him to return. The incident where he was chased and shot at in XXXX of that — of 2022 to show that it was a mistake. And he said that they returned a second time to Mexico to gather personal belongings and deal with matters such as banking that they could only themselves do in person. He said that they stayed near the airport, and he had his mother bring his belongings to him and went to a bank branch close to their location so as to not go in the city or travel elsewhere. I find their explanation to be reasonable and do not find that — particular, the claimant’s returns to Mexico negatively affect their overall credibility.
[18] I find that claimants have credibly established their subjective fears.
Well-Founded Fear of Persecution
[19] Having found that the claimants are credible, and they have a genuine subjective fear of persecution based primarily on the principal claimant’s work, both as a XXXX and a XXXX, and for the associate claimant due to her connection to the principal claimant, I must consider whether their fears are objectively well-founded. Information found in the United States Department of State report at Item 2.1 of the National Documentation Package for Mexico notes that while Mexico law allows for freedom of expression and this applies to members of the press and generally speaking, the state respected this right, it reports that journalists who report on state corruption or who openly critique the state or organized crime face a serious threat to their safety.
[20] According to the report, journalists were killed or subject to physical and cyber attacks, harassment, intimidation, especially by state agents and criminal organizations because of their reporting. As a result, the media was limited in their ability to investigate and report since many of the reporters killed cover crime, corruption, and local politics. As a result of the threat to the safety of journalists, some journalists practice self-censorship. Journalists are reported to alter their coverage due to lack of protection from the government, attacks against members of the media and newsrooms and threats of retribution against their families. Journalists are reported to practice self-censorship because of threats from criminal groups and government officials.
[21] In relation to the influence of cartels on members of the media, the DOS report specifically says, “criminal groups exercise grave influence over media outlets and reporters threatening individuals who publish critical views of criminal groups.” It cites the case of two (2) reporters from Chiapas who covered migration for 30 years and were threatened by cartels repeatedly until the threats escalated to the point where they were — the reporters received death threats against both them and their daughter, causing them to escape to the United States with the help of Reporters Without Borders.
[22] [According to the United Nations General Assembly Compilation of Mexico at Item 2.5, the special rapporteur found that the pervasive assault on journalists and journalism presented a challenging and immediate threat to freedom of expression in that country. According to the NDP Item at 2.9, which is a special report by the UN special rapporteur on human rights in Mexico, “journalists who voice critical views often face intimidation. Mexico has become one (1) of the world’s most dangerous places for journalists. Inter-American Commission on Human Rights and United Nations experts have referred to a crisis for freedom of expression in Mexico involving killings, disappearances, physical and psychological attacks on the media, and other forms of interference designed not only to harm individual journalists, but also the public’s right to know. Due to the climate of insecurity and widespread impunity at the state municipal levels, self-censorship has become rife. Many newspapers in violent areas fear reprisals if they publish stories on organized crime, drug trafficking or corruption.”
[23] Human Rights Watch at Tab 2.3 echoes this assessment that Mexico is one (1) of the most dangerous countries in the world to be a journalist, noting that those who expose cartels or criticize public officials face threats, attacks, harassment, and surveillance by criminal groups and/or government authorities. It further observes that authorities fail to adequately investigate or prosecute attacks on journalists. Freedom House in its report at Tab 2.8 says that 2022 was the deadliest year for journalists in Mexican history, as at least 15 journalists were killed. It further observed that President Lopez Obrador frequently and publicly attacks the press and that attacks against journalists increased by 85 percent in the first three (3) years since he became president.
[24] A report by the US Congressional Research Service found at Tab 11.1 says that journalists are three (3) times as likely as other Mexicans to being the victims of organized crime or drug-related violence. It further says that while murder and disappearances are the most drastic crimes committed against journalists. Others include harassment, cyber surveillance, destruction of property, torture, and threats to journalists’ families. A report by the Immigration and Refugee Board on the Cartel, the CJNG at Tab 7.7, said that this cartel is known more so than others for its excessive use of violence and that it has significant presence in 23 of the 32 states with territorial dominance stretching from the south of Mexico up to its border with the United States. It has international presence, too, as it has contacts in the United States, Canada, Australia, China, and southeast Asia. They are largely involved in drug trafficking. Sources indicate that if the CJNG wants to find a person in Mexico, they can and will as they have the resources to do so. Additionally, it says that they control the police and have financed many politicians.
[25] To be considered persecution, the mistreatment suffered or anticipated must be serious and constitute the denial of the basic human right. Persecution can be considered the sustained or systemic violation of basic human rights. The principal claimant in particular is not free to express his political opinion and he said his passion for journalism is so strong that if he had to return to Mexico, he would continue being a XXXX. The claimants face a serious possibility of persecution, including intimidation, threats, kidnapping, physical, and in the case of the associate claimant, sexual assault, and a risk to their lives. I find the treatment and harm the claimants face amount to serious breaches of their freedoms of expression and their physical integrity and this does amount to persecution.
[26] I find that their subjective fears are grounded in the objective evidence.
State Protection
[27] In refugee claims, there is a presumption of state protection. Although this presumption may be rebutted with clear and compelling evidence, the claimants would not have access to adequate state protection. The United States Department of State report at Item 2.1 that I previously mentioned observes that impunity and extremely low rates of persecution remain a problem for all crimes, including human rights abuses, and notes that human rights abuses within the country include violence against journalists. There were reports of some government agents who are complicit with international organized crime gangs, and there were low prosecution and conviction rates in these abuses.
[28] It further states that while the government investigated and prosecuted some crimes, majority are neither investigated nor prosecuted. Further, the Freedom House report mentioned earlier at tab — which is also found at Tab 2.8 notes that while the Interior Secretariat operates the federal protection mechanism for human rights defenders and journalists, and it has in some cases successfully helped reporters by providing them with safe house bodyguards, it is chronically underfunded and not always effective since at least two (2) journalists under its protection have been killed. Moreover, the report by the US Congressional Research Service previously mentioned — cites a survey of Mexican journalists from 2019 where 85 percent of respondents said that authorities do little or nothing to protect them. It says that as of January 2022, President Lopez Obrador ordered a review of the federal protection mechanism for human rights defenders and journalists to better coordinate with state officials.
[29] The principal claimant reported drug activity in a XXXX to police and a few weeks later was kidnapped by a cartel. When he mentioned this to police, an officer warned him he should hide. They did not investigate his kidnapping and instead, he continued to face targeting through — in some instances through his family. Based on the totality of the evidence before me, I find that although there is some mixed evidence of efforts by the state to make improvements, there continues to be an absence of operationally effective state protection available. I find the state protection is not available for these claimants.
Internal Flight Alternative
[30] Based on the objective information previously cited, including that of the US DOS report and the IRB’s research report that says the CJNG has resources to track people in Mexico, including journalists, that — and that relocation is not a solution for people fleeing from them, I find that XXXX and their family are subject to persecution throughout Mexico, and therefore, the claimants face a serious possibility of persecution everywhere in Mexico.
CONCLUSION
[31] Having considered all the evidence, I find the claimants are Convention refugees under section 96 of the Act, and I accept their claims.
——— REASONS CONCLUDED ———