2023 RLLR 44

Citation: 2023 RLLR 44
Tribunal: Refugee Protection Division
Date of Decision: November 7, 2023
Panel: Louis Gentile
Counsel for the Claimant(s): Stephen Burry
Country: Mexico
RPD Number: TC2-38416
Associated RPD Number(s): TC2-38417, TC2-38418
ATIP Number: A-2023-01721
ATIP Pages: 000001-000005

DECISION

[1]       MEMBER: This is the decision for the following claimants. XXXX file number TC2-38416, and associate claimants, XXXX file number TC2-38417, and XXXX file number TC2-38418. I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally. In reaching this decision, the Panel has considered Chairperson’s Guideline 4, gender considerations in proceedings before the Immigration and Refugee Protection Act. You are claiming to be citizens of Mexico and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

DETERMINATION

[2]       I find that you are Convention refugees because you face a serious possibility of persecution for the following reasons.

ALLEGATIONS

[3]       You are citizens of Mexico and no other country. You worked for the XXXX since 2010, initially as an XXXX for several XXXX and XXXX. In 2018, while working as a XXXX with a simultaneous title of XXXX for a XXXX in the XXXX in Nayarit. You began to receive threats to you, and to your wife, and daughter from cartel members. You reported the threats to the police and prosecution. The XXXX was provided with armed protection and escorts, but you and your family were not.

[4]       In 2021, fearing for their safety. You sent your wife and daughter away to Mazatlan. However, the threats against you persisted, and you decided that you had to flee the country to save your lives. If you returned to Mexico, you could be subjected to kidnapping, enforced disappearance, torture, sexual and gender-based violence, or murder, by the Jalisco New Generation Cartel. You allege that there is no state protection for you in Mexico, where many similarly situated individuals have been disappeared or murdered by the cartels, nor is there any internal flight alternative.

Identity

[5]       Your personal identities as citizens of Mexico has been established by your testimony and the supporting documents filed in the exhibits, including certified true copies of your Mexican passports, and national election ID cards. I therefore find on a balance of probabilities that identity and country of nationality have been established.

Nexus to section 96 or section 97

[6]       I find that there is a link between what you fear and one (1) of the five (5) Convention grounds, specifically your membership of a particular social group as a woman and girl targeted by a cartel in the case of the associate claimants, and as a member of a family unit targeted by a cartel in the case of the principal claimant. Therefore, this claim has been assessed under section 96.

Credibility

[7]       In terms of your general credibility, I have found you to be credible witnesses, and I therefore accept on a balance of probabilities what you have alleged in your oral testimony and in your Basis of Claim forms. Your testimony is presumed to be true. You testified in detail and consistently with your Basis of Claim forms about how your — threats against you escalated over time and persisted even when you moved on several occasions. In support of your claim, you provided documents in Exhibit number 5 that include copies of reports you filed with the police, and testimonies from family members and former colleagues. The Panel finds these documents and your related testimony to be credible on a balance of probabilities and thus assigns them significant weight.

[8]       Your testimony was in keeping with your Basis of Claim forms, and there were no significant inconsistencies or omissions. The Panel also found this testimony and the evidence to be credible on a balance of probabilities, as was your testimony about why you could not count on adequate police protection anywhere in Mexico. In reaching these findings, the Panel has considered and applied Chairperson’s Guideline 4, gender considerations and proceedings before the Immigration and Refugee Board, particularly sections 6, 7, and 8. I therefore believe what you have alleged in support of your claims, and I find the following to be credible, that on a balance of probabilities, you are a family targeted by a cartel because of your direct association with the XXXX . You have credibly established your subjective fear of persecution, including fear of being kidnapped, disappeared, tortured, raped, or killed.

Persecution Risk

[9]       The objective documentation supports your allegations that individuals in your circumstance face persecution. One (1), the documentary evidence indicates that criminal elements, including local and transnational gangs and narcotics traffickers, were significant perpetrators of violent crimes and committed acts of homicide, torture, kidnapping, extortion, human trafficking, bribery, intimidation, and other threats, resulting in high levels of violence and exploitation. NDP 2.1.23, page 2.

[10]     Two (2), the documentary evidence indicates that impunity and extremely low rates of prosecution remained a problem for ail crimes, including human rights abuses and corruption. There were reports some government agents were complicit with international criminal gangs. NDP 2.1.23, page 2.

[11]     Three (3), the documentary evidence indicates feminicide is rampant in Mexico, and there were serious flaws in the investigation of these crimes. NDP 2.1.23, page 3.

[12]     Four (4), the documentary evidence indicates that the CJNG is one (1) of the fastest growing criminal organizations in Mexico, and one (1) of the five (5) most dangerous in the world, and is present in all federal entities except Sinaloa. NDP 7.7, page 2.

[13]     Five (5), the documentary evidence indicates that the Mexican police and security forces have been hobbled by corruption for decades, and that this corruption underpins collusion with criminals. NDP 10.2.

[14]     Six (6). Mexico is plagued by thousands of missing persons and enforced disappearances annually, and impunity largely prevailed on this issue. NDP 2.1.23, pages, 3 to 5.

[15]     Seven (7). The CJNG has managed to infiltrate public institutions, despite its general anti-government stance. NDP 7.7, page 6. Consequently, I find that there is a serious possibility that you could face enforced disappearance, murder, and/or targeted gender-based violence, should you return to Mexico. I find that you have established an objective basis for your subjective fear, and therefore you have a well-founded fear of persecution.

State Protection

[16]     I find that adequate state protection would not be available to you were you to seek it in Mexico. The objective documentary evidence outlined above indicates that criminal gangs use ruthless violence and work in collusion with corrupt security forces throughout Mexico. States are presumed to be capable of protecting their citizens, except in situations where the state is in a complete breakdown. However, based on the claimant’s personal circumstances, as well as the country documentation referred to above, the Panel finds on a balance of probabilities that the claimants have rebutted the presumption of state protection with clear and convincing evidence. Adequate state protection is not available to them as they fear persecution from powerful cartels that operate with the support of corrupt members of the police and security forces.

Internal Flight Alternative

[17]     I have also considered whether a viable internal flight alternative exists for you, particularly in relation to Queretaro. The country documentation referred to above indicates that the situation for individuals in circumstances such as yours is the same throughout the country, and that you would face a serious possibility of persecution or risk to life anywhere in Mexico, as the cartels could find you anywhere in Mexico. The Panel finds on a balance of probabilities that there is a serious possibility of persecution of the claimants anywhere in Mexico, including Queretaro, as the security forces are corrupt and work in collusion with criminal gangs. And this would make starting a new life safely and undiscovered elsewhere in Mexico nearly impossible. As such, I find that the IFA test fails on the first prong and that there is no viable internal flight alternative for you in Mexico.

CONCLUSION

[18]     Based on the totality of the evidence, I find the claimants to be Convention refugees as they face a serious possibility of persecution because of their membership of a particular social group. Your claims are therefore accepted.

——— REASONS CONCLUDED ———