2023 RLLR 41

Citation: 2023 RLLR 41
Tribunal: Refugee Protection Division
Date of Decision: December 27, 2023
Panel: Ademiju Olatunji
Counsel for the Claimant(s): Gregory Biniowsky
Country: Mexico
RPD Number: VC3-05374
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

                                      

REASONS FOR DECISION

 

INTRODUCTION

 

[1]           This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX (the Claimant), a citizen of Mexico who is claiming refugee protection pursuant to zsection 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”).

 

ALLEGATIONS

 

[2]           The Claimant’s allegations are contained in the Basis of Claim (BOC) form and narrative. In summary, the Claimant lived in Sinaloa and fears the Sinaloa Cartel because the Claimant cooperated with the police by giving information about two members of the Sinaloa Cartel and was invited to testify against them in Court. Members of the Sinaloa Cartel have searched for the Claimant in a bid to force him to withdraw the written testimony he gave to the police against them. 

 

[3]           The Claimant was a XXXX XXXX in Los Mochis, Sinaloa, Mexico. On XXXX XXXX, 2018, he XXXX XXXX two men at a place called XXXX XXXX at about 12 am. Police later contacted him and he found out that the men he had XXXX XXXX with XXXX XXXX had been involved in murders at the place he XXXX XXXX XXXX XXXX. According to him, the police got his contact from the XXXX XXXX XXXX XXXX. He stated that he was told by the police that the two men had not only killed an individual but had been involved in many other crimes. The police also stated that he must give his testimony/declaration to not be an accessory to the crime.  He made a declaration two weeks later and he identified the men he XXXX XXXX XXXX XXXX XXXX.

 

[4]           The Claimant further alleged that almost immediately three men went to his home at Los Mochis, Sinaloa, where they met his parents. He stated that the three men identified themselves as members of the Sinaloa Cartel and demanded that the Claimant withdraw the witness statement he made to the police or his entire family will suffer the consequences. 

 

[5]           The Claimant also stated that his parents immediately moved away and went to stay at his grandparent’s home while he went to stay with his sister at Culiacan. He stayed there for three months and moved further away. He went to Tijuana (his aunt’s place) and stayed there for about three to four months until the men found him, and he had to flee. He also stated that he kept receiving summons from the Attorney-General’s office and the Court in criminal matters filed against the men he gave information about. 

 

[6]           The Claimant came to Canada on XXXX XXXX, 2019, on a visiting visa (ETA) which he extended once. The ETA expired in XXXX 2020, and he had stayed in Canada since that time. 

 

[7]           He contacted the Mexican consulate in 2019 and in 2023 to inform them that he does not want to frustrate the proceedings by his presence in Canada and would be willing to give his evidence from Canada.

 

[8]           In 2023, his mother and sister attempted to assist him in obtaining a copy of the statement he made to the police, but they were told that the files were still open. 

 

DETERMINATION

 

[9]           The panel finds that the Claimant is a person in need of protection pursuant to paragraph 97(1)(b) of the Act as he has established, on a balance of probabilities, that he would be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment in Mexico.

 

ANALYSIS

 

Identity

 

[10]        The panel finds that the Claimant’s personal identity and national identity as a citizen of Mexico are established, on a balance of probabilities, by the copy of his Mexican passport which he submitted to the Board. 

 

Nexus 

 

[11]        For a Claimant to be a Convention refugee, the persecution that they fear must be by reason of one of the five grounds enumerated in the Convention refugee definition. The Claimant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion.

 

[12]        The panel finds that the risk alleged by the Claimant does not have a connection or nexus to any of the Convention grounds. The Claimant alleges that he will be at risk from a criminal organization, the Sinaloa Cartel, if he returns to Mexico due to his failure to withdraw the statement he made to the police in respect of members of the Sinaloa Cartel and his status as a witness in the prosecution of members of the Sinaloa Cartel.  As such, the claim is assessed under subsection 97(1) of the Act. 

 

CREDIBILITY

 

[13]         When a Claimant swears to the truth about his or her allegations, it creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.[1] Additionally, when assessing credibility, the panel is entitled to rely on its rationality and common sense.[2] In this case, the panel finds the Claimant to be credible, except where indicated below.

 

[14]        In particular, the principal Claimant spoke in detail about how he first came in contact with two members of the Sinaloa Cartel when he XXXX XXXX XXXX as his XXXX XXXX. He narrated how the police sought information about his contact with these two men, how he gave the information about where he XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX and how he learnt that prior to XXXX XXXX XXXX, they had been involved in a murder at where he XXXX XXXX XXXX. He also spoke about how the men went to his home, which his parents shared with him, immediately after giving his sworn statement to the police. He gave evidence about how the men who visited his home demanded he recount his testimony or have his family face their wrath, and how this visit and threat led to the displacement of his family. He also stated how he ran to Culiacan and then to his aunt’s house at Tijuana. He also stated that he sent his mom to the Prosecutor’s office in 2023 to get a copy of the ‘denunciation’ he made against the two men he XXXX XXXX in XXXX XXXX, but he was told by his mom that the Prosecutor’s office refused to give it to his mom, stating that the case is still open and that it was delicate because of the minors involved. 

 

[15]        The panel accepts these aspects of the Claimant’s testimony, based on the presumption of truthfulness, as true. The panel has no reason to doubt these aspects of the Claimant’s allegations and as such, finds that the Claimant is credible in respect of these allegations, on a balance of probabilities. 

 

[16]        The Claimant submitted documentary evidence to corroborate aspects of his claim including:

               i.         Court summons and letter dated XXXX XXXX, 2019, asking the Claimant to appear at the XXXX XXXX XXXX on XXXX XXXX, 2019, at 10.00 am for the purpose of giving testimony.

             ii.         Court summons and letter dated XXXX XXXX, 2019, asking the Claimant to appear at the XXXX XXXX in Sinaloa on XXXX XXXX, 2019. 

            iii.         Letters from the Claimant’s father and sister.

            iv.         Aunt’s letter stating that certain men came to the house to ask for the Claimant on XXXX XXXX, 2019, demanding that the aunt reveal the Claimant’s whereabout. 

 

[17]        Upon review of the documents, the panel has no reason to doubt the authenticity of any of the documents and accepts them as corroborative of the core allegations advanced by the Claimant and places full weight on them. 

 

[18]        The Claimant in his oral testimony also stated that members of the Sinaloa Cartel went to his aunt’s house in Tijuana on XXXX XXXX, 2019. In his interview with the Canada Border Services Agency (CBSA), the Claimant stated that he saw the men in three vehicles and ran away. In his oral testimony before the panel, he stated that on XXXX XXXX, 2019, he had arrived back at the house after going out with a girl without having a clue as to what happened. He further stated that he was initially informed of the visit of the men from the Sinaloa Cartel when he returned by his neighbour. The panel asked the Claimant to explain why his statement to the CBSA officer that he saw the men of the Sinaloa Cartel who visited his aunt and fled, and his statement to the panel that he did not know of the visit until he returned home and was informed by his neighbour, appeared to contradict each other. The Claimant’s response was that when he made the statement, he was not 100% sure that the men he saw were the same people as the Sinaloa Cartel that visited his aunt’s place. He stated his statement to me was the truth, as he was not 100% sure of what had occurred prior to returning home.

 

[19]        The panel finds that the statements that the Claimant saw the men of the Sinaloa Cartel and ran, and that he came home without a clue of what had transpired at his aunt’s place are contradictory. The panel also finds that the explanation provided by the Claimant was not reasonable. The panel thus draws a negative credibility inference from this contradiction. However, while the panel finds that the Claimant is not credible as to what he saw on XXXX XXXX, 2019, the panel finds that there is other evidence of the visit of the men from the Sinaloa Cartel before the panel. This includes the letter written by the Claimant’s aunt. As such, the panel finds, on a balance of probabilities, that the men of the Sinaloa Cartel visited the Claimant’s aunt’s home in 2019. 

 

[20]        The panel notes that the Claimant has been in Canada without status since XXXX 2020. The Claimant explained that he did not make a refugee application earlier because he did not have enough money to pay a legal representative. He was later referred to Legal Aid, whom he approached immediately and put in his application. The panel finds the Claimant’s explanation reasonable in the circumstances and does not find that the delay in asking for protection undermines his credibility.

 

Risk of Harm

 

[21]        The definition of a “person in need of protection” in the Act, requires that a Claimant show that their removal would subject them personally to a risk to life, risk of cruel and unusual treatment or punishment, or risk of torture and that they are unable or, because of that risk, unwilling to avail themselves of the protection of their country of nationality.[3] The Claimant must also show that this risk would be faced in every part of their country of nationality and that the risk is not faced generally by other individuals in or from that country.[4]  To succeed in a claim under section 97(1)(b) of the Act, the evidence must establish a specific, individualized risk to the claimant, and not merely generalized exposure to crime or human rights violations in a country.[5] 

[22]        The panel has reviewed the country condition information contained in the latest National Documentation Package (NDP) for Mexico. The panel finds that this evidence establishes that the Claimant would be subjected personally, on a balance of probabilities, to a risk to life or risk of cruel and unusual treatment or punishment that is not faced generally by others in or from Mexico.

 

[23]        As described by the Federal Court in Guerrero, 2011 FC 1210, there is a two-step process for determining whether the Claimant would be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment that is not faced generally by others. First, the Claimant must establish, on a balance of probabilities, that he would be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment if returned to their country of nationality. It is only after a finding that there is a personal risk that a decision-maker must continue to consider whether that risk is one faced generally by others. 

 

The Claimant would be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment.

 

[24]        The panel finds that the Claimant would be subjected personally to a risk to his life or a risk of cruel and unusual treatment or punishment from the Sinaloa Cartel if he returned to Mexico. The Claimant’s family has been threatened in Sinaloa and Tijuana, due to the information he gave to the police and the court cases against the men of the Sinaloa Cartel whom he gave information to the police about, are still open. The Claimant has also failed to accede to the demands of the Sinaloa Cartel to withdraw the statement he made to the police. The panel finds on a balance of probabilities that the Claimant continues to be at risk during the pendency of the criminal cases filed against the men about whom the Claimant testified to the police. The panel notes that the Claimant stated that even though he reached out to the consulate to make them aware that he is still willing to give evidence from Canada, neither the consulate nor the Attorney-General’s office has reached out to him. The panel further notes that the last time summonses were sent to the Claimant by the Court was in 2019. However, the panel finds that the fact that the cases are still open, coupled with the Claimant’s failure to withdraw his ‘denunciation’/statement made to the police, continue to put the Claimant’s life at risk. 

 

[25]        The objective evidence before the panel offers insight into the precise nature of the risk faced by those, like the Claimant, who are targeted by the criminal gangs in Mexico.

 

[26]        A National Documentation Package (NDP) report for Mexico states that organized crime is a major contributor to Mexico’s problems of crime and violence.[6] According to this and past reports, a major portion between a third and half of all Mexican homicides since 2006 can be attributed to organized crime, especially drug trafficking organizations.[7] For 2018, which is the year the Claimant left Mexico, the most conservative estimates estimate that 20 percent of all homicides in Mexico are attributable to organized crime, while the high-end estimates are more than two (2) thirds of all homicides are attributable to organized crime.[8] The report presents a comprehensive assessment of publicly available data to help understand Mexico’s ongoing public security crisis and specifically the role of organized crime. Mexican organized crime groups are more fragmented, and their activities are diversified.[9] In recent years the nature of violence has changed as the country’s major drug trafficking organizations have become more fragmented, decentralized and diversified.[10] And this has contributed to a proliferation of smaller regional and local criminal gangs and a more complex set of challenges for the Mexican government.[11] At page 14, the same report states the review of available data shows that many homicides in recent years bore characteristics typically associated with organized crime style violence: executions, torture, beheading, dismemberment, assault with weapons, mass graves, and other methods used by organized crime. 

 

[27]        The NDP at item 7.34 states that that the Sinaloa Cartel is a powerful organisation whose reach goes as far as “New York City to Buenos Aires and almost every city in between”.[12] TAB 7.2 reports that the Sinaloa Cartel is regarded as the most enduring and most powerful criminal organisation in the Northern hemisphere, with operations in more than 50 countries and in control of about 60% of Mexico’s drug trade.[13] Another NDP also notes that a large number of people have just ‘disappeared’ in Mexico.[14]

 

[28]        A document at NDP Item 7.7 by the Immigration and Refugee Board includes a report that organized crime groups track and retaliate against individuals. In correspondence with a research director, the director for Mexico and migrant rights at the Washington office on Latin America Research and Advocacy Organization stated that if a criminal group had very strong motivation to find and retaliate against a certain person, especially if the criminal group is one of the more powerful groups in Mexico or a group with indications of having cooperation from relative authorities, then the ability to track or retaliate against a certain person would be a reasonable concern to have.[15] The research professor stated that if organized crime groups in other parts of Mexico are interested and willing to retaliate against people, they could easily do it. According to sources, criminal groups are motivated to track individuals because they steal or lose money due to personal rivalries, for political incentives or reasons or due to personal vengeance, perceived betrayal, or cooperation with authorities as informants.[16] And according to the director of criminology, it is an oversimplification to say that a group will track just anyone. It really depends on who you are and what you did. Low ranking members are not worth time or resources for armed groups to track and kill. Instead, high ranking members or someone who betrayed a high-ranking criminal organization may cause you to be tracked or targeted.[17] 

 

[29]        Similarly, the safety of an individual who relocates to flee from one of these organizations’ threats depends on the interests the group may have to punish or retaliate against the fleeing individual. If the interest is not too serious, relocation may work, but if any of the organizations are interested in harming an individual, no city will provide a safe haven. Any of these organizations have the ability to commit violent acts against any person anywhere in the country.[18]

 

[30]        Similarly, NDP Item 7.19 says, Mexico in 2019, once again suffered the highest homicide rate in its history, organized crime, having survived the government’s militarized assault and corrupted many officials, has broke up into smaller outfits. Armed self defence groups have popped up, but most have criminal ties themselves.[19] 

 

[31]        Based on the evidence before the panel and the country condition evidence noted above, the panel finds that that the Claimant would be personally subjected, on a balance of probabilities, to a risk of kidnapping, assault or murder at the hands of the Sinaloa Cartel. The panel finds that these harms amount to a risk to life or a risk of cruel and unusual treatment or punishment.

 

The risk is not one faced generally by others. 

 

[32]        In this case, the Claimant is not facing a general risk of violence in Mexico. The Claimant is caught between withdrawing his testimony given to the police or facing the wrath of the Sinaloa gang. The Claimant and the family have already been threatened. What distinguishes this case from the generalized violence in Mexico is the fact that the Claimant has been specifically identified and targeted by the Sinaloa Cartel, who have continued to look for him in different parts of Mexico.  While violence is a widespread risk in Mexico, the general population does not currently face a risk to their life for failing to comply with the demands of a criminal organization. As such the Claimant is therefore at risk of being killed by members of the Sinaloa Cartel, and the risk is substantially more pronounced and targeted than that faced by the general population. 

 

[33]        The panel finds that these circumstances distinguish the nature of the Claimant’s risk from a generalized risk of indiscriminate crime that may be faced generally by other individuals in Mexico. The panel finds that the Claimant faces a risk that is particular to him and that is not faced generally by other individuals in or from Mexico.  For the foregoing reasons, the panel finds, on a balance of probabilities, that the Claimant faces a personal risk to his life that is not faced generally by others in Mexico. 

 

State PROTECTION

 

[34]        Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption, the onus is on the Claimant to establish, on a balance of probabilities and through clear and convincing evidence, that their state’s protection is inadequate.[20] The panel notes that the more democratic a state, the harder it is to displace this presumption.[21] The panel finds that this presumption has been rebutted in this case.

 

[35]        A report at Item 10.2 of the NDP speaks directly to the complicity between police and illegal armed groups.[22] The report quotes the International Crisis Group report to the effect that corruption, including corruption within the federal police, underpin state collusion with criminals. This collusion is problematic. Mexico is amid what the Open Society described in its May 2018 report as a crisis of atrocity and impunity based on the level of government collusion and cartel brutality. 

 

[36]        The Claimant’s testimony is consistent with the country reports referred to above, which report that Mexican police protection is inadequate. The panel notes the Claimant’s testimony that members of the cartel came to his home immediately after he gave his statement to the police. In the circumstances, the panel finds that the Claimant has rebutted the presumption of state protection with clear and convincing evidence that the Mexican state would be unable or unwilling to offer him adequate protection.

 

Internal Flight ALTERNATIVE

 

[37]        The Federal Court of Appeal in Rasaratnam,[23] developed a two-prong test when assessing IFA. For an IFA to be viable on the first prong, there must be no serious possibility of the Claimant being persecuted in the IFA, and there must be no risk to life or risk of cruel and unusual treatment or punishment or danger of torture, on a balance of probabilities. The second prong of the test requires that conditions in that IFA must be such that it would not be unreasonable in all the circumstances for the Claimant to seek refuge there.

 

[38]        The Claimant has been threatened by the Sinaloa Cartel, which objective evidence has shown has reach throughout Mexico. As shown in the reports cited in the previous sections, criminal groups, especially powerful criminal groups, can track targeted individuals through country-wide networks. There is no doubt that the Sinaloa Cartel is one of the powerful criminal organisations in Mexico. The panel thus finds, on a balance of probabilities, that the agent of harm has the means to locate the Claimant anywhere in Mexico.

 

[39]        The Claimant testified that he moved to another part of Sinaloa, and then to Tijuana but was still traced and located by the Sinaloa Cartel. The panel finds that this, coupled with the information in the NDP, shows that the Sinaloa Cartel are motivated to find the Claimant in other areas of the country. The Claimant has refused to withdraw his ‘declaration’ or statement made to the police. The criminal cases are still open. The panel finds that the Sinaloa Cartel would continue to be motivated to find the Claimant for failing to withdraw the declaration, especially during the pendency of the cases filed against their members. As such, the panel finds that the Claimant would be personally subjected, on a balance of probabilities, to a risk to his life or a risk of cruel and unusual treatment or punishment throughout Mexico. 

 

[40]        As such the panel finds there is no viable IFA for the Claimant anywhere in Mexico.

 

CONCLUSION

 

[41]        For the reasons above, the panel finds that the Claimant is a person in need of protection pursuant to paragraph 97(1)(b) of the Act as he has established, on a balance of probabilities, that he would be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment in Mexico.

 

 

(signed) Ademiju Olatunji

 

December 27, 2023

 

 

 

[1] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.)

 

[2] Shahamati, Hasan v. M.E.I. (F.C.A., no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994

 

[3] Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 97.

 

[4] Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 97.

 

[5] Ahmad, Hasib v. M.C.I. (F.C., no. IMM-9188-03), Rouleau, June 4, 2004; 2004 FC 808. 

 

[6] National Documentation Package, Mexico, 29 September 2023, tab 7.10: Organized Crime and Violence in Mexico: 2021 Special Report. University of San Diego. Justice in Mexico. October 2021.

 

[7] Ibid. 

 

[8] Ibid. 

 

[9] Ibid.

 

[10] Ibid.

 

[11] Ibid. 

 

[12] National Documentation Package, Mexico, 29 September 2023, tab 7.34: Sinaloa Cartel. Insight Crime. 4 May 2021.

 

[13] 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.

 

[14] National Documentation Package, Mexico, 29 September 2023, tab 7.10: Organized Crime and Violence in Mexico: 2021 Special Report. University of San Diego. Justice in Mexico. October 2021.

 

[15] 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.

 

[16] Ibid. 

 

[17] Ibid. 

 

[18] Ibid.

 

[19] National Documentation Package, Mexico, 29 September 2023, tab 7.19: Mexico’s Everyday War: Guerrero and the Trials of Peace. Latin America Report N°80. International Crisis Group. 4 May 2020.

 

[20] Sokoli v. Canada (Citizenship and Immigration), 2018 FC 1072 (“Sokoli”), para. 15.

 

[21] Canada (Citizenship and Immigration) v. Kadenko [1996] FCJ No. 1376.

 

[22] 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.

 

[23] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).