2023 RLLR 46
Citation: 2023 RLLR 46
Tribunal: Refugee Protection Division
Date of Decision: October 6, 2023
Panel: S. Seevaratnam
Counsel for the Claimant(s): Max Berger
Country: Mexico
RPD Number: TB9-34815
Associated RPD Number(s): TB9-34826, TB9-34855, TB9-34856, TB9-34857
ATIP Number: A-2023-01721
ATIP Pages: 000012-000021
REASONS FOR DECISION
[1] The claimants, XXXX (principal claimant); his wife XXXX (associate claimant); and their adult children, XXXX and XXXX, and their minor daughter, XXXX claim to be citizens of Mexico and they are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
[2] The father, XXXX, was appointed as the designated representative for his minor daughter, XXXX, for the purpose of this hearing.
[3] The claimants allege that they fear returning to Mexico due to their race (darker complexion), and religion, Muslim. They fear the XXXX who identify and target foreigners.
ISSUES
[4] The determinative issues outlined at the commencement of the hearing were nationality, credibility, and the objective basis for their well-founded fear of persecution.
ALLEGATIONS
[5] The details of the allegations are outlined in the principal claimant’ s Basis of Claim (BOC) Form and narrative.[2]
DETERMINATION
[6] The panel finds the claimants to be Convention refugees. The panel’s reasons are as follows.
IDENTITY
[7] In Exhibit 1,[3] the claimants have provided copies of their passports, issued by the government of Mexico. In addition, the principal claimant and his wife have provided a copy of their marriage certificate.[4]
[8] The principal claimant testified that he was born in Pakistan and moved to Mexico in XXXX 1992 in search of better economic opportunities. He explained that he became a national
of Mexico in 2021. He explained that he and his wife had to renounce their Pakistani nationality in order to procure Mexican citizenship.[5] They have provided Naturalization certificates from the Mexican Ministry of Foreign Affairs as corroboration.[6]
[9] The citizenship law stipulates that naturalized nationals in Mexico cannot maintain dual nationality.[7] Report on Citizenship Law: Mexico indicates that the different legal and practical treatment given to different Mexicans (by birth; by naturalisation; and dual nationals) was set in the laws on purpose. This configures a hierarchy of citizenship in Mexico, as follows:
1. Mexicans by birth with no other nationality, who are fully entitled to all rights and duties associated to citizenship, now including protection against forfeiture;
2. Mexicans by birth with another citizenship, with important restrictions in the political and governmental areas, and some others in specific civil matters; and
3. Mexicans by naturalisation, who not only also face the same restrictions, but currently are (i) the only ones that can lose their Mexican citizenship, and (ii) the only ones who are prohibited from holding a further citizenship.[8]
[10] This is further corroborated in a report by the Global Citizenship Observatory which indicates that the 1997 constitutional reform marked a radical shift from the twentieth century nationalist ethos and restrictive approach citizenship and migration regulation, as well as to relationships with the diaspora.[9] Even so, the same reforms also introduced some quite important limitations to dual citizenship. Arguably, these were intended as a barrier to too much ‘foreign interference’. Dual citizenship would be allowed for citizens by birth only. Naturalised Mexicans would be (and still are) barred from either taking another citizenship, as well as from retaining their original one after naturalisation.[10] Accordingly, the principal claimant and his wife have revoked their Pakistan nationality. The principal claimant testified that upon arrival in Canada, he inquired about the renewal of their former nationality at the Pakistan consulate in Toronto, however, it was denied by the Pakistan authorities.[11]
[11] The principal claimant testified that all three children were born in Mexico. Birth Certificates have been provided for all of them.[12] He testified that they became Mexican citizens automatically since they were born in Mexico. This is corroborated in the Mexican citizenship laws which states that any person born in Mexican territory is automatically a citizen by birth, regardless of his or her migratory/citizenship status or the nationality of his or her parents.[13]
[12] The panel finds the claimants to be nationals of the Republic of Mexico and no other country.
CREDIBILITY
[13] The panel is cognizant of the leading jurisprudence on the issue of credibility. Maldonado[14] stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.
[14] All adult claimants provided clear, direct, and candid testimony. Their responses were straightforward. Their oral evidence was internally consistent. The claimants testified that they were easily recognized due to their darker complexion. They testified that they were also recognized as being Muslim because of the male claimant’s name, and the female claimants’ clothing. In addition, the male claimant testified that he prayed five times a day. The claimants testified that they practice their religious faith as Shia Muslims. The adult daughter, XXXX explained that she has experienced micro-aggression in school since she and her two siblings were the only students of a different race and religion. She explained that they were easily identifiable in school and in society. She testified that they are all fearful given her father’s experiences and threats he received from the XXXX aimed at him and his family.
[15] The sworn viva voce testimony of the principal claimant was consistent his BOC form and narrative.[15] His testimony was corroborated by reliable documentary evidence.[16] The principal claimant has provided photographs of his XXXX[17] and the XXXX lease agreements.[18] A former employee, XXXX, has provided an affidavit outlining the extortion demands and death threats at gun point[19] she witnessed from the XXXX targeting the principal claimant.
[16] The panel finds the adult claimants on a balance of probabilities to be credible and trustworthy witnesses. Accordingly, the claimants have established their subjective fear of persecution based on their race (darker complexion) which is compounded by their religion.
WELL-FOUNDED FEAR OF PERSECUTION
[17] The principal claimant testified that he established a small successful XXXX. He has provided photographs of his XXXX,[20] his XXXX lease agreement,[21] and a letter from a former employee detailing the harassment and assault experienced by the claimant as corroboration of his testimony. He explained that he was targeted by the XXXX because they believe that foreign XXXX arrive with a large cash flow. In addition, he believes he was an easy identifiable target due to his race and religion. He explained that the supporters of the XXXX believe that foreigners have taken their jobs and thus are resentful. He further explained that they are racist towards people with a darker complexion.
[18] The panel has sought guidance from the most recent National Documentation Package (NDP) for Mexico[22] to assess the objective basis for the claimants’ fear of persecution based on their race and religion.
[19] The United States Department of State (DOS) report on Mexico, Country Reports on Human Rights Practices for 2022 finds that the constitution prohibits discrimination based on ethnicity, and a federal law prohibits all forms of discrimination. Nonetheless, discrimination was common against racial and ethnic minorities, including Black, Afro-Mexican, and Indigenous groups.[23]
[20] Mexico, Freedom in the World 2023 report indicates that Mexican law bans discrimination based on ethnic origin, gender, age, religion, and sexual orientation. Nevertheless, lighter-skinned Mexicans enjoy substantial social advantage compared to Indigenous people and other distinct groups.[24]
[21] According to Mexico, International Religious Freedom Report for 2022, the U.S. government estimates the total population at 129 million (midyear 2022). According to the 2020 Mexican government census (the most recent), approximately 78 percent of the population identifies as Roman Catholic (compared with 83 percent in 2010); 10 percent as Protestant or evangelical Protestant; and 1.5 percent as other religious groups, including Judaism, Jehovah’s Witnesses, The Church of Jesus Christ of Latter-day Saints (Church of Jesus Christ), and
Islam.[25] It is evident from current country condition documents that the claimants practice a minority religion and it is reasonable that they were easily identified by members of their community and the XXXX
[22] Counsel for the claimant has provided media reports of foreigners being targeted and killed in Mexico.[26]
[23] XXXX, the eldest daughter, testified that they were the only students at their school who had a darker complexion, whose parents were immigrants, and practiced a different religion. The principal claimant testified that he was vehemently targeted by the XXXX (XXXX) as a XXXX for extortion due to his race and religion. He stated that they are nationalists who accuse foreigners of taking their jobs, thus, causing their economic decline. The anti-foreigner sentiments espoused by the XXXX is corroborated in the documentary evidence.[27] The documentary evidence indicates that XXXX representatives openly called on Mexicans to join in their struggle against foreigners, sexual minorities, and leftists.[28] Accordingly, the panel finds that the claimants are at risk of persecution due to their race (darker complexion) compounded by their minority religion. Thus, the claimants have established on a balance of probabilities the objective basis for their well-founded fear of persecution.
STATE PROTECTION
[24] There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens.[29] To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.[30]
[25] The principal claimant testified that he made attempts to obtain state protection through the police in XXXX 2019 when he received verbal threats and extortion demands by telephone. He stated that he personally attended at the police station to initiate a complaint, but the police took no action. The principal claimant further explained that on XXXX, 2019, he was threatened at gun point at his XXXX by members of the XXXX. Again, he attended at the police station to file a report and the police dismissed his concerns. He testified that he closed his XXXX permanently at the end of XXXX due to fear of ongoing extortion and violent reprisals by the XXXX. This is corroborated by an affidavit provided by a former employee, XXXX, who was a witness.[31] On XXXX, 2019, the principal claimant was identified by the XXXX and physically assaulted. He explained that the police arrived on the scene and made a report, however, no arrests were made, and protection was not forthcoming. He stated that the police are corrupt, complicit, and ineffective in Mexico.
[26] The Mexico Freedom in the World 2023 indicates that Mexico’s justice system is plagued by delays, unpredictability, and corruption, which often lead to impunity for perpetrators of crimes.[32]
[27] The report further states that Mexicans are subject to the threat of violence at the hands of multiple actors, including individual criminals, criminal gangs that operate with impunity, and police officers who are often susceptible to bribery.[33]
[28] The 2023 report indicates that official corruption remains a serious problem. Despite Mexico’ s relatively comprehensive anticorruption framework, implementation of existing mechanisms is lacking in.
[29] The panel finds that the claimants fear persecution at the hands of XXXX. Based on the objective documentary evidence,[34] and the principal claimant’s viva voce evidence, he and his family cannot avail themselves of the protection of the authorities due to their corrupt practices and ineffectiveness.
[30] The National Documentation Package (NDP) for Mexico[35] makes clear that the state is ineffective and in these particular circumstances, there is clear and convincing evidence that the state is unable or unwilling to protect the claimants. Accordingly, the panel finds that the claimants have met the burden of proof, on a balance of probabilities, and the presumption of state protection has been rebutted.
INTERNAL FLIGHT ALTERNATIVE (IFA)
[31] The Federal Court of Appeal established a two-part test for assessing an IFA in
Rasaratnam and Thirunavukkarasu: As per Rasaratnam,
(1) “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”[36] and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.
(2) Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claim, for him to seek refuge there.[37]
[32] The claimants bear the burden of proof to demonstrate that they would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment[38] in all of Mexico.
[33] The principal claimant testified that when police protection was not forthcoming, fearing for their lives, he and his family relocated to Puebla, Mexico. Nevertheless, he was identified and violently targeted on XXXX, 2019. The principal claimant testified that the XXXX have an extensive network whereby they have the ability to target and persecute their adversaries. The claimants testified that they are easily identifiable due to their darker complexion, race, and religion. He stated that he and his family cannot live in fear in hiding.
[34] Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout Mexico. Thus, given the particular circumstances of the claimants, who are being pursued due to their race compounded by their minority religion, an internal flight alternative is unavailable.
CONCLUSION
[35] The claimants, XXXX, XXXX, and XXXX, have established that there is a reasonable chance of persecution, if they were to return to their country of nationality, Mexico, based on the Convention grounds of race and religion. Therefore, the panel finds the claimants to be Convention refugees.
[36] Accordingly, the Refugee Protection Division accepts their claims.
(signed) S. Seevaratnam
October 6, 2023
[1] The Immigration and Refugee Protection Act (IRPA), S.C.2001, c.27, as amended, sections 96 and 97(1).
[2] Exhibit 2, Basis of Claim (BOC) Fonn – TB9-348l5,
[3] Exhibit 1, Package of information from the referring CBSA/CIC.
[4] Exhibit 9, Disclosure received September 25, 2023, 6 items, 35 pages, item 2.
[5] Exhibit 10, Disclosure received September 29, 2023, 11 items, 31 pages, items 1 and 2.
[6] Exhibit 9, Disclosure received September 25, 2023, 6 items, 35 pages, item 1, and Exhibit 10, Disclosure received September 29, 2023, 11 items, 31 pages, items 9 and 10.
[7] Exhibit 7, National Documentation Package (NDP) for Mexico – July 31, 2023, item 3.3.
[8] Ibid., at p.18.
[9] Ibid., item 3.2, at p.1.
[10] Ibid.
[11] Exhibit 2, BOC Form (TB9-34815, XXXX) narrative, at lines 57-61.
[12] Exhibit 9, Disclosure received September 25, 2023, 6 items, 35 pages, item 3, and Exhibit 10, Disclosure received September 29, 2023, 11 items, 31 pages, items 6-8.
[13] Exhibit 7, NDP for Mexico (July 31, 2023), item 3.3, atp.13.
[14] Maldonado, Pedro Enrique Juarez v. MCI. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
[15] Exhibit 2, BOC Form (TB9-34815, XXXX).
[16] Exhibit 9, Disclosure received September 25, 2023, 6 items, 35 pages, Exhibit 10, Disclosure received September 29, 2023, 11 items, 31 pages, Exhibit 13, Affidavit from XXXX, former employee, dated October 4, 2023, Exhibit 14, Disclosure regarding claimant’s XXXX, 3 items, 10 pages, received October 5, 2023, and Exhibit 15, One page disclosure on the XXXX received October 5, 2023.
[17] Exhibit 14, Disclosure regarding claimant’s XXXX, 3 items, 10 pages, received October 5, 2023.
[18] Ibid., items 2 and 3.
[19] Exhibit 13, Affidavit from XXXX, former employee, dated October 4, 2023,
[20] Exhibit 14, Disclosure regarding claimant’s XXXX, 3 items, 10 pages, received October 5, 2023, item 1.
[21] Ibid., item 2 and 3.
[22] Exhibit 7, NDP for Mexico (July 31, 2023).
[23] Ibid., item 2.1, Systemic Racial or Ethnie Violence and Discrimination.
[24] Ibid., 2.8, F4.,
[25] Ibid., item 12.1, Section 1. Religious Demography
[26] Exhibit 9, Disclosure received September 25, 2023, 6 items, 35 pages, item 6, and Exhibit 10, Disclosure received September 29, 2023, 11 items, 31 pages, items 3-5.
[27] Exhibit 15, One page disclosure on the XXXX received October 5, 2023.
[28] Ibid.
[29] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
[30] Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), at para 38.
[31] Exhibit 13, Affidavit from XXXX former employee, dated October 4, 2023.
[32] Exhibit 7, NDP for Mexico (July 31, 2023), item 2.8, s. F 2.
[33] Ibid., F3.
[34] Exhibit 7, NDP for Mexico (July 31, 2023), Exhibit 9, Disclosure received September 25, 2023, 6 items, 35 pages, item 6, Exhibit 10, Disclosure received September 29, 2023, 11 items, 31 pages, items 3-5, and Exhibit 15, One page disclosure on the XXXX received October 5, 2023.
[35] Exhibit 7, NDP for Mexico (July 31, 2023).
[36] Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.
[37] Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).
[38] Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, section 97(1) (b) (ii).