2023 RLLR 42
Citation: 2023 RLLR 42
Tribunal: Refugee Protection Division
Date of Decision: December 14, 2023
Panel: Lesley Stalker
Counsel for the Claimant(s): Serina Sharda
Country: Mexico
RPD Number: VC3-05989
Associated RPD Number(s): VC3-05990, VC3-05991
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: We are back on the record, and I am going to deliver the reasons for my decision in the claims of XXXX XXXX XXXX, the Principal Claimant, her 18-year-old son, XXXX XXXX XXXX XXXX, and her 16-year-old daughter, XXXX XXXX XXXX XXXX. The claimants are citizens of Mexico who are seeking protection in Canada under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. At the outset of the hearing, I confirmed the appointment of the Principal Claimant as the designated representative for her daughter, XXXX. At the time the claimants filed their claim, the son, XXXX, was a minor, but he is now an adult and does not require a designated representative.
ALLEGATIONS
[2] The claimants’ allegations are set out in the Principal Claimant’s Basis of Claim form, or BOC. In brief, the claimants fear they will be killed, kidnapped or otherwise harmed by the Jalisco New Generation Cartel, CJNG, if they return to Mexico. Their story can be summarized as follows. In XXXX 2021, the Principal Claimant opened a XXXX XXXX in Jalisco. Several months after the XXXX opened, two (2) men, posing as customers, called the Principal Claimant to XXXX XXXX to discuss business matters. They said they knew how to help her business expand quickly and increase her income. The Principal Claimant realized that the men were proposing illegal activities such as money laundering or drug trafficking, and she told them she was not interested. The men left, but returned later that night to inform her that if she was not willing to work for them, she would have to pay a tax of XXXX XXXX XXXX pesos per week. She said that was simply impossible because that amount exceeded her total revenues. The men left, and she heard nothing further.
[3] In XXXX 2022, different men pulled up at the XXXX around midnight. The XXXX was closed and the staff were cleaning up and preparing to lock up for the night. The men agreed to limit their XXXX XXXX XXXX XXXX, and after XXXX XXXX XXXX, they left without incident. They returned quickly, however, within 20 minutes or so, saying that they had returned for their backpack. The Principal Claimant said that they had cleaned the XXXX and had not found a backpack. The men were incensed. They pulled out guns and demanded that the Principal Claimant return the pack immediately. The experience was terrifying. The men told them that they, meaning the Principal Claimant and her staff, had better not mess with them, as they belonged to the Jalisco Cartel. The men ransacked the place, searching for the backpack, while repeatedly threatening to kill the Principal Claimant and the staff. The men finally left around dawn, warning the Principal Claimant that she had three (3) days in which to return the backpack, or she would be killed. The Principal Claimant did not open the XXXX again. She immediately went with her children to the home of her friend about 40 minutes away. The claimants did not leave the house of the friend. They relied on neighbours to bring them food.
[4] However, the friend and neighbours quickly noticed the presence of unknown black vehicles, which were parked on the street for extended periods of time. This was sufficiently alarming that the friend asked the claimants to leave, and so they did. They moved to Puerto Vallarta to stay with family members of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, a young man who had worked at the XXXX. XXXX had proposed that they go to stay with his mother and grandmother. Within days of the claimants arriving, however, unknown men knocked at the door of XXXX’ mother’s home, asking for the claimants by name. XXXX’ grandmother did not open the door. She told the men through the closed door that no one was at home. On hearing the voice of an elderly woman, the men left.
[5] At the time of these events, the Principal Claimant was in a relationship with a man called XXXX (ph). XXXX suggested that they move to a rural property that his mother and sister owned near the town of XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The claimants moved to this farm or ranch. The Principal Claimant realized, however, that she and her children faced years of having to move in an effort to hide from the cartel, so she left her children with XXXX, and came to Canada to enquire about the refugee process. This was in XXXX 2022.
[6] While the Principal Claimant was in Canada, XXXX learned that unknown men had been asking about the Principal Claimant in XXXX. He moved the children, meaning the younger claimants, to an even smaller community, one that was so remote that there was neither electricity nor phone connection. XXXX told the Principal Claimant that he could no longer care for the children, so she returned to Mexico to get the two (2) younger claimants, and the three (3) of them returned to Canada in XXXX, or early XXXX 2022. The claimant’s older daughter, XXXX (ph), had a young child, and XXXX could not leave with the young child as there were legal problems associated with her taking the child out of the country. The claimant explained that the child’s father had disappeared and so XXXX needed to get a court ruling authorizing her to take the child out of the country. So XXXX remained in Mexico in hiding, and she has, for the most part been staying with XXXX, the close family friend who had originally suggested the claimants stay with his mother and grandmother in Puerto Vallarta. And so the claimants appeared before me today to explain why they are seeking protection in Canada.
DECISION
[7] After hearing the evidence, I find that the claimants are persons in need of protection as there is a risk to their lives, or a risk of cruel and unusual treatment or punishment at the hands of the cartel Jalisco Nueva Generacion, the CJNG, if they return to Mexico.
ANALYSIS
Identity
[8] I am satisfied as to the claimants’ identity by virtue of their credible testimony and by their Mexican passports, certified true copies of which are on file.
Credibility
[9] In assessing credibility, I start from the presumption that evidence given under oath is truthful. Of course that presumption can be displaced if there are reasons to doubt the truthfulness or the reliability of the evidence, but in this case I have no reason to doubt what the claimants were telling me. The Principal Claimant provided most of the testimony. I found she was a credible witness and that she was endeavouring to tell the truth. She acknowledged when she did not know the answer to questions. Her answers were also consistent with the information in her Basis of Claim form. She believes that the first incident, the incident in which two (2) men demanded that she pay a weekly tax is related to the second incident where the men were two (2) different men, ransacked the XXXX looking for a backpack. She believes that the accusation by the second set of men was a way to increase fear and to intimidate her into paying the quota. I do not share the claimant’s belief that the two (2) incidents are related. The Principal Claimant acknowledges that no one returned to the XXXX to collect the taxes in the months following the initial demand, and the men who ransacked the XXXX in XXXX 2022 apparently did not mention her failure to pay the taxes. Regardless of whether the two (2) incidents are related or not, I am nonetheless satisfied, on a balance of probabilities, that the men who visited the XXXX in XXXX 2022 have lost a backpack which contained a large amount of money, and that they are deflecting blame to the Principal Claimant. As a result, the CJNG now has the Principal Claimant in their crosshairs, and are actively looking for her.
[10] The son also testified briefly, and I found him to be a credible witness. He testified that when the family first arrived in Canada, they kept asking themselves why the CJNG would be pursuing them with such zeal. He said that he did some research. He explained his methodology, and he learned that many small businesses that are extorted by the CJNG comply with the cartel’s demands. He believes that the Principal Claimant has been targeted because she has not complied with their demands, and this has incensed the cartel.
[11] The claimants provided a number of documents to corroborate their claims. These include, one (1), a letter from XXXX, the former employee. XXXX describes the events of XXXX XXXX, 2022, in detail. His account accords with that set out in the Principal Claimant’s narrative, although it is clear that he is describing the events from his own perspective. He describes the men who entered the XXXX as suspicious, and said that they had arrived in a black vehicle with tinted windows. He says that the men told him that they belong to a cartel, and that their informants and the police would let them know if they, meaning the Principal Claimant, tried to file a complaint. XXXX says that he has received numerous calls asking for the Principal Claimant, and for her adult daughter, XXXX. XXXX has been living with XXXX, although not in a romantic relationship. XXXX writes that he has moved five (5) times since the initial event of XXXX 2022, in a quest for safety for himself as well as for XXXX and her young child.
[12] Two (2), a letter from the claimant’s friend, XXXX (ph). XXXX confirms that she offered shelter to the claimants in late XXXX 2022. She said that in the short time that the claimants were there, black vans suddenly appeared and parked outside her home for extended periods of time. She was sufficiently unnerved that she asked the claimants to leave for her own safety. XXXX apparently has already lost a family member to the CJNG, and has a fear of the cartel. XXXX also says in her letter that an unknown person came to her home and asked about the claimants shortly after they left.
[13] Three (3), a letter from the claimant’s daughter, XXXX. XXXX describes the events of XXXX XXXX, 2022, in detail. She says that she remains in hiding, and that her young son is unable to attend school. I am not sure what XXXX means by this, as I believe that the son is only three (3) years old, but perhaps she is referring to pre-school.
[14] Four (4), text messages between XXXX and the Principal Claimant. In XXXX 2023, XXXX messaged the Principal Claimant and said that he had been mugged. He sent her photos of bruises and injuries on his body. He said that he would be filing a police complaint. In a relatively recent message, XXXX tells the Principal Claimant that the attackers in XXXX told him that they knew that the Principal Claimant and the younger claimants had left the country. They also told him that they knew that the older daughter, XXXX, was still in the area, and that if they found XXXX, they would force the Principal Claimant to come back. They also warned XXXX that if he went to the police, they would kill him. XXXX apologizes to the Principal Claimant for not telling her about these threats when he was first mugged. He did not want to share that information with her. He says that XXXX does not leave the home at all. He implies in his message that XXXX’s presence in Mexico is increasing the risk to himself, and he expressly states that he hopes the Principal Claimant can arrange for her to leave Mexico soon.
[15] Five (5), photos of injuries on XXXX’ body after the attack.
[16] Six (6), police complaint filed by XXXX on XXXX XXXX, 2022. The report states that XXXX was attacked and his belongings were stolen. In the complaint, he does not name the assailants, nor does he mention the threats they made. This omission is explained in the text message referred to above, where XXXX said that the assailants told him they would kill him if he went to the police. So he filed a routine report about mugging, but did not give them more personal information about the threats to the Principal Claimant and XXXX.
[17] After reviewing the documents, I have no reason to doubt their authenticity, and I find they corroborate the claimants’ allegations. After considering the evidence, including the credible testimony of the two (2) claimants who testified and the corroborative documents, I accept the allegations as set out in the BOC narrative. In particular, I find that the Principal Claimant has been personally targeted and threatened by the CJNG, who have pursued her and threatened to kill her and family members over a period of time.
Nexus
[18] The next question is whether the claimants have a Nexus to the refugee convention, and I find they do not. Victims or potential victims of crime, corruption or personal vendettas generally cannot establish a link between the fear of persecution, and the convention grounds or political opinion, alleging nationality, membership in a particular social group or religion. In this case, I find that there is nothing that links the harm the claimants fear to the refugee convention. I therefore assess the claim under subsection 97(1) of the Act. Under this section, the claimants may qualify for protection if they can show that, on a balance of probabilities, they would be subjected personally to a risk to their lives, or a risk of cruel and unusual treatment or punishment if they returned to their country of origin.
Personalized Risk to Life or Other Harm
[19] So I now turn my mind to the question of whether the claimants would face a personalized risk to their lives or other serious harm at the hands of the CJNG if they returned to Mexico. I first considered the nature of the agent of harm, namely the CJNG. According to reports in the Board’s National Documentation Package for Mexico, the CJNG is a criminal organization that has emerged in the wake of killings and rifts in the older cartels. The CJNG is renowned for its aggressive use of violence, and is now considered Mexico’s foremost criminal threat. The cartel engages in a range of activities, from drug trafficking, kidnapping, extortion, murder, recruitment and more. A Board Response to Information Request found at Tab 7.48 of the NDP, describes tactics used by cartels to enforce their power. The sources in the RIR state that, “Those who defy a cartel’s demands face murder, torture, violence, as well as general intimidation.” The RIR also says that some groups threaten, kidnap or kill family members.
[20] In terms of whom the CJNG is likely to target, the Response to Information Request at Tab 7.7 of the NDP states that the cartel typically targets and tracks rivals, business persons such as the Principal Claimant, journalists, anyone they perceive to be a threat to their interests, as well as anyone that the cartel feels has betrayed them, challenged their rule or refused to work with them.
[21] Another report on the CNJG found at Tab 7.12 states that workers and business owners are among the most targeted groups across the country. That latter report says that the targeting of business owners remains largely unreported and unattributed, as many of the victims face threats and distrust the authorities to prosecute the perpetrators, and so the extortion is unnoted.
Personalized Risk of Violence
[22] I now turn my mind to the question of whether the claimants face a personalized risk of violence, and I find they do. The Country Reports paint a grim portrait of violence in Mexico. Many Mexicans face a possibility of serious violence at the hands of criminals. But I find that the claimants before me have established a very personal and real risk that is outside of the generalized risk faced by other Mexicans. The CJNG has now invested a lot of resources in pursuing the Principal Claimant because they believe she has defied their authority, and has stolen from them. I also find that the two (2) younger claimants are at risk simply because of their kinship to the Principal Claimant. It would not require a lot of imagination on the part of the CJNG to see that they could punish the Principal Claimant by kidnapping or killing her children.
So in sum, I find there is sufficient credible evidence that the claimants face a personal forward-facing risk to their lives or a risk of cruel and unusual treatment or punishment in the form of kidnapping, torture and other forms of violence if they return to Mexico.
State Protection
[23] A state is presumed capable of protecting its citizens, and claimants must establish, on a balance of probabilities, that the country would not be able to provide them with reasonable protection. But in this particular case, I find that the presumption of state protection has been rebutted. The Principal Claimant says she did not report the attack of XXXX XXXX, 2022, to the police because the attackers had cautioned her that their informants would let them know if she attempted to do this. And the reports in the Board’s National Documentation Package confirm that collusion between police and organized crime is a serious problem in Mexico. There are two (2) reasons for this; one is police corruption, and the other is the power of the cartels.
[24] On the question of police corruption, an RIR on police corruption found at Tab 10.2 of the NDP states that police corruption in Mexico is a major problem. They attribute this to poor working conditions in law enforcement, which leave police officers particularly vulnerable to bribes and infiltration by organized crime. International Crisis Group reported in 2018 that corruption in all branches of Mexican law enforcement underpins state collusion with criminals. The reports in the NDP also indicate that the cartels have their finger in many aspects of government.
[25] The US Congressional Research Report at Tab 7.2 of the NDP reports that, “The continued revelation of high level corruption linked to crime groups and their apparent control of Mexican territory demonstrates that the TCOs, meaning Transnational Criminal Organizations, are more deeply entrenched than ever. The Lopez Obrador government faces some allegations of DTO, related corruption of public officials, its party politicians and members of the national police forces.” A source in the RIR on police corruption found at Tab 10.2 of the NDP states that studies highlight the role of police at all levels, federal, state and local, in facilitating illegal businesses, working for organized crime and systematically violating human rights. So in view of the Country Reports, I find that the claimants cannot rely on meaningful state protection should they return to Mexico.
Internal Flight Alternative
[26] I also find that the claimants do not have reasonable or viable internal flight alternative in Mexico. This is because the agent of harm, the CJNG, operates throughout the country. The claimants have described their efforts to move, I believe it was four (4) times within a four (4) -month period in Mexico. On each occasion, the cartel appears to have successfully tracked them, forcing the claimants to move again to ever more remote areas. Ultimately, the claimants before me successfully left Mexico, but the Principal Claimant’s oldest daughter, XXXX, is still in Mexico in hiding. And the evidence from her friend and housemate, XXXX, indicates that that the cartel is still actively looking for her and has a general idea of where she is. XXXX is not working and does not leave the home. She is a virtual prisoner inside the home.
[27] The claimants’ difficulty in eluding the cartel are consistent with the reports in the NDP, which indicates that criminal groups and cartels have the ability to track people throughout the country. The Response to Information Request at Tab 7.15 states that a gang or cartel can be motivated to track someone outside their area in pursuit of a large debt, or to settle a personal vendetta. The RIR describes the strategic alliances, the cartels support with each other to expand their reach, and says that cartels and gangs rely on family networks and private investigators to track people. They also rely on property records and use corrupt law enforcement agents to obtain information about the people they pursue.
[28] Another RIR specifically on the CJNG found at Tab 7.7 states that the Jalisco cartel tracks and locates individuals who move to another region by leveraging their own internal intelligent operatives, known as community intelligence. The cartel’s own internal intelligence includes informants, armed members, connections with local politicians and allied gangs, and is effective at tracking and locating individuals. The RIR also states that the Jalisco cartel outsources the tracking and location of individuals to their contacts in the police or armed forces whom they pay in exchange for access to their technological resources. The monitoring infrastructure of criminal groups in Mexico, including that of the Jalisco cartel, is pervasive and routine across the country’s highways, seaports and airports. And so based on the evidence before me, I find that the claimants do not have a viable IFA in Mexico.
CONCLUSION
[29] In sum, after reviewing all of the evidence, I find that the claimants would face a risk to their lives, or a risk of cruel and unusual treatment or punishment should they return to Mexico. I therefore find that they are persons in need of protection as to find in subsection 97(1) of the Act, I accept their claims.
[30] Okay. Those are the reasons for my decision. I would like to thank you all for coming to testify today. XXXX, you didn’t testify, but thank you for being present. Ms. Sharda, thank you very much for a well-prepared claim. I know it’s not always easy, corralling documents.
——— DECISION CONCLUDED ———