2023 RLLR 47
Citation: 2023 RLLR 47
Tribunal: Refugee Protection Division
Date of Decision: December 22, 2023
Panel: K. Sharma
Counsel for the Claimant(s): Daniel Ayllon Petit
Country: Mexico
RPD Number: TC0-06060
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: 000022-000030
REASONS FOR DECISION
[1] These are the reasons for the decision in the claim for refugee protection made by XXXX (“the claimant”).
[2] The claimant alleges to be a citizen of Mexico and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
ALLEGATIONS
[3] The facts and events alleged in support of the claim are set out in the claimant’s Basis of Claim (BOC) form[2] and the corresponding amendment.[3] To summarize, the claimant resided in the state of Yucatan, identifies as a Mayan Indigenous person and fears individuals from the local gang called XXXX
[4] The claimant alleges XXXX is a gang comprised of 15 men who terrorize the claimant’ s local community. The claimant has been attacked by XXXX members on three separate occasions: XXXX 2014, XXXX 2015 and XXXX 2017. In the latter attack, the gang members physically assaulted the claimant with a machete and uttered ethnic slurs. The claimant was able to run away and obtain help from his father.
[5] The claimant went to report the assailants to the police and additionally filed a lawsuit. The assailants were initially arrested but released a few days later. The claimant alleges that the assailants’ family members paid a bribe to the police. The claimant presented himself for the lawsuit hearings with his friend as a witness, but the assailants never appeared.
[6] A week later, the claimant encountered one of his attackers who threatened to hurt the claimant again. Fearing his life, the claimant decided to depart Mexico for good in the XXXX of 2018.
DETERMINATION
[7] The panel finds that the claimant is a Convention refugees within the meaning of section 96 of the IRPA.
PROCEDURAL MATTERS
[8] The hearing took place virtually on August 28, 2023, and November 1, 2023. The claimant requested a Mayan interpreter as he was most comfortable testify in the Mayan language. The Board procured the services of Mayan-Spanish interpreter via a third-party agency. As such, there were two interpreters present at the hearing: a Spanish-English interpreter and a Mayan-Spanish interpreter. The Board, the claimant and the claimant’s counsel consented to the presence of a third-party interpreter for the hearing and accepted the inherent risks involved with the process.
[9] The claimant indicated that the contents of his BOC form and narrative were translated to him in Spanish. The claimant stated that he understood the main elements of the BOC form but did not understand all of it. The BOC amendment (8 pages) was translated from English to Spanish to Mayan for the record. After the sight translation, the claimant confirmed that the BOC forms and corresponding amendment was true correct and up to date.
[10] The claimant submitted post-hearing documents,[4] which included identity documents, the filed police report and email correspondence with his friend.
ANALYSIS
Identity
[11] The claimant’s personal identity and Mexican nationality were established, on a balance of probabilities, based on the copy of the claimant’s Mexican passport.[5]
Nexus
[12] The panel finds that the claimant’s allegations establish a nexus to the Convention grounds of race and nationality given that the claimant identifies as a Mayan indigenous man. As such, the panel has assessed this claim under sections 96 and 97 of the IRPA.
Credibility
[13] When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their truthfulness.[6] In assessing the credibility of the evidence presented by the claimant, the panel accepts, on a balance of probabilities, the events alleged in the BOC narrative.
[14] The claimant also adduced evidence[7] in support of his claim, including record of complaint filed with the Yucatan Attorney General’s office on XXXX, 2017, photos of the claimant’s injuries, medical note dated XXXX, 2024, letter of support from the claimant’s spouse and community member and email correspondence with the claimant’ s friend, who witnessed the last attack in XXXX 2017. The panel has no reason to doubt the authenticity of these documents.
[15] The claimant testified that he believed the local gang may have connections to the Cártel de Jalisco Nueva Generación (CJNG). When the panel brought forth that this was omitted in the BOC narrative, the claimant explained that there have been talks about the link in his community but it he is not entirely sure. Based on the claimant’s own account, the panel finds these particular allegations of links of the local gang to the CJNG to be speculative and finds that claimant has not credibly established that the local gang who assaulted him is connected to the CJNG or any major Mexican cartel.
[16] The panel accepts the claimant’s allegation that he was threatened and assaulted individuals who claimed to be a part of XXXX , a local Yucatan gang. However, given the profile of the agents of harm as a local gang and the significant time passed since the claimant’s last contact with these individuals, the panel find on a balance of probabilities, that the agents of harm are not motivated to harm and pursue the claimant. In this case, while the panel does not accept the forward-looking risk at the hands of the agents of harm, the panel find that the claimant has still credibly testified to fear of persecution as a Mayan Indigenous man, which is the basis on which the analysis will proceed from here forward.
[17] Given the claimant’s detailed testimony and supporting documents, the panel finds the claimant has established a story of a history of abuse on account of his indigeneity and fears discrimination in Mexico which rises to the level of persecution. As such, the claimant has established his subjective fear in returning to Mexico.
Objective Basis
[18] When assessing a claim for refugee protection, the Board of course has to look at whether claimant have a well-founded fear of persecution, which contains both the subjective fear element and the objective basis for that fear.
[19] In addition to the subjective fear, there is also an objective basis. The panel refers to the preponderance of documentary evidence in the most recent National Documentation Package (NDP) for Mexico, which identifies concerns for members of Indigenous communities.
[20] The United States Department of State (DOS) Mexico, Country Reports on Human Rights Practices for 2022 indicates Indigenous persons often experienced racism and discrimination and were frequently victims of violence.[8] This was due at least in part to their lack of Spanish language proficiency, Indigenous persons generally had limited access to health care, education services, and legal means to seek justice.
[21] A Response to Information Request (RIR) on the Treatment of Indigenous Persons suggests that the Indigenous population is “marginalized and discriminated against.”[9] Freedom House indicates that Mexican law bans discrimination based on ethnic origin; however, the Indigenous population faces “social and economic discrimination” and southern states with a high Indigenous population face “particularly deficient services.”[10]
[22] Based on current, reputable, and reliable documentary evidence, and the credible allegations, the panel finds that the claimant has established on a balance of probabilities, a well¬ founded fear of persecution by reason of his ethnic profile.
Internal Flight Alternative (IFA)
[23] At the outset of the hearing, the panel proposed the IFA locations of Guadalajara, Jalisco; Acapulco, Guerrero; and Mexico City. The panel will focus its analysis only on Guadalajara, for the purpose of efficiency.
[24] Mexico is a large country with a population of over 131 million people covering an area of over 1.9 million sq. km.[11] The law provides for freedom of movement and the right to travel within Mexico. In determining whether the agent of harm has both the “means and motivation”[12] to locate the claimant in the panel has considered the area of operation of the cartel and their level of interest in the claimant. Based on the claimant’s testimony and adduced evidence, the panel finds that the influence of the agents of harm, a local gang based in the Yucatan state, was localized. As such, the agents of harm do not have the means or motivation to harm the claimant in proposed IFA location.
[25] The panel has also considered the claimant’s residual profile to determine whether he would have a viable IFA in Mexico. The claimant stated that he would face mistreatment and discrimination in the proposed IFA locations as he is Mayan, an ethnic minority group in Mexico. The claimant further explained that he has only ever lived in his small town in the Yucatan state and that the general Mexican population looks down at Mayan people.
[26] The panel refers to the available documentary evidence in the NDP regarding the experiences of Mayan people living in Mexico. There are approximately 774 000 Mayan speakers residing in Mexico and is the third most widely spoken Indigenous language in the country.[13] A Response to Information Request (RIR) found in the NDP states “estimated 71.9 percent of the Indigenous population live in poverty or extreme poverty, compared to 40.6 of the national population [in Mexico]”[14]
[27] The NDP indicates that Indigenous groups, including Mayan persons, have been subjected to incidents of generalized discrimination and violence in Mexico. However, it also concludes that legislation states that the government will protect the existence of these minorities and encourage conditions for the promotion of their individual identities.
[28] The RIR reports that government department called Comisión Nacional para el Desarrollo de los Pueblos Indigenas (CDI) is the national entity responsible for “coordinating, promoting, monitoring and evaluating programmes, projects, strategies and government action for the comprehensive and sustainable development of indigenous peoples and communities.”
[29] The Minority Rights Group International states:
” … many indigenous organizations, ranging from small community-based groups to national bodies, also formed to fight for better living conditions for this population. They have campaigned for access to education, health services, potable water, credits, fair wages, political representation, consultation, the protection of local environments, and official recognition of their languages and traditional skills as healers. Sorne of these groups worked in collaboration with other local non-governmental organizations (NGOs) and human rights bodies and others have partnered with local governments.[15]
[30] The panel finds that there is not sufficient evidence in the NDP to suggest that Mayan people are systematically targeted everywhere in Mexico, particularly in the IFA locations of Guadalajara and Mexico City. However, the panel accepts that Mayan persons have been subjected to incidents of violence and discrimination in Mexico as the generalized conditions of the Indigenous populations are often inferior to the general Mexican population.
[31] In addition, the panel notes that the claimant’ s first language is Mayan and the claimant is not fluent in the Spanish language, which is the national language of Mexico and the proposed IFA locations. The panel also notes that the claimant has little formal education, having only completed his studies up to XXXX . The panel finds that the combination of the claimant’ s lack of Spanish language proficiency, little formal education and Mayan identity will hinder the claimant’ s ability to access necessary amenities such as housing, education and employment.
[32] As such, given the intersectional profile of the claimant as a Mayan persan who has basic proficiency in the Spanish language as well as little formal education, the panel accepts, on a balance of probabilities, that the claimant may experience discrimination which rises to the level of persecution in the proposed IFA locations.
State protection
[33] While not raised as an issue, the panel has considered whether there is state protection available to the claimant. As a starting point, it is presumed that states are capable of protecting their citizens unless there is clear and convincing evidence to the contrary. In this case, the panel finds that this presumption has been rebutted.
[34] At the case at bar, the claimant testified he attempted to obtain police assistance when he was assaulted by the assailants, but the case was eventually dropped before it went to court. The claimant testified that he believed that the assailants were able to bribe the police in exchange for dropping the case.
[35] Human Rights Watch reports that Mexico’s criminal justice system “routinely fails to provide justice to victims of violent crimes and human rights violations” and that “causes of failure include corruption, inadequate training and resources, and complicity of prosecutors and public defenders with criminals and other abusive officials.”[16] According to the Mexican government’s own statistics, an estimated 94 percent of crimes are either unreported or not investigated. Criminal organizations thus continue to carry-out human rights abuses and widespread killings throughout the country with impunity.[17]
[36] The UN Special Rapporteur states the following:
Indigenous peoples are widely affected by problems concerning access to justice. According to the Mexican authorities, the vast majority of offences go unpunished. There is also a high level of criminal cases that go unreported owing to the lack of trust in the authorities and their procedures. Various factors prevent indigenous persons from gaining access to the national judicial system in order to defend their rights. They face economic, cultural, linguistic, and geographic barriers, as well as racism and discrimination.[18]
[37] The panel recognizes that the NDP has conflicting statements in terms of the treatment of indigenous peoples in Mexico, as noted in the previous section. Despite the facts that the Mexican constitution prohibits discrimination based on ethnicity, and a federal law prohibits all forms of discrimination and that authorities have taken some action, the panel finds that the government has tried to enact legislation and put in place tactical initiatives across several departments but the recent statements in the NDP noted above suggest that they are not producing results on the ground. The panel finds that the documentary evidence, as noted above, demonstrates that Mexico continues to have difficulties in providing protection for all its citizens, including Mayan and other ethnic minorities.
[38] The NDP and as well as the claimant’s testimony make clear that the state has been complicit in the hate crimes committed on members of the indigenous communities. Accordingly, in these circumstances, the panel finds clear and convincing evidence that the state is unable or unwilling to protect the claimant.
CONCLUSION
[39] For the foregoing reasons, the panel finds that the claimant is a Convention refugee.
[40] The claim is therefore accepted.
(signed) K. Sharma
December 22, 2023
[1] The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
[2] Exhibit 2.1
[3] Exhibit 2.2
[4] Exhibit 6
[5] Exhibit 1
[6] Maldonado v. Canada (M.E.I), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
[7] Exhibits 5.1, 5.2, 5.3 and 6
[8] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, Item 2.1
[9] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, Item 13.9
[10] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, Item 2.8
[11] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, Item 1.2.
[12] Mayorga v. Canada (M.C.I.), 2012 FC 987 at para. 31; Serikova v. Canada (M.C.I.), 2016 FC 814 at para. 22.
[13] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, Item 13.3
[14] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, Item 13.9
[15] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, Item 13.7
[16] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, Item 2.3
[17] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, Item 7.12
[18] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, Item 13.9