2023 RLLR 48

Citation: 2023 RLLR 48
Tribunal: Refugee Protection Division
Date of Decision: December 11, 2023
Panel: Tina Androutsos
Counsel for the Claimant(s): Elizabeth Jinsook Kim
Country: Mexico
RPD Number: TC1-02323
Associated RPD Number(s): TC1-02331, TC1-02334, TC1-02335, TC1-02336
ATIP Number: A-2023-01721
ATIP Pages: 000031-000035

DECISION

[1]       MEMBER: Okay, so, these are the reasons for the decision in the claims of XXXX, TC1-02323, the principal claimant and the designated representative of the minors, XXXX, TC1-02331, the associate claimant, XXXX , TC1- 02334, a minor claimant, XXXX, TC1-02335, another minor claimant, and XXXX, TC1-02336, a minor claimant, who claims to be citizens of Mexico and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. The principal claimant is a 37-year-old male who is a XXXX and the associate claim is a 36-year-old female who is also a XXXX and has three (3) children, ages seven (7), 10, and 14 years old, who are the minor claimants listed in this claim.

[2]       The claimants fear the corrupt CJNG cartel. The principal claimant worked as a XXXX  at XXXX in Cancún, making a comfortable income for his family. The principal claimant was kidnapped by the CJNG cartel for the first time on      XXXX, 2019, as he was leaving work. He was blindfolded, beaten, and forcibly taken to an unknown location where he was informed that he was to XXXX — he was the       XXXX the boss wanted. The principal claimant was threatened with a gun and forced to XXXX for 10 members of the cartel and then was again blindfolded and driven back where he was taken from. The cartel took nothing from the principal claimant but told him that he must be available any time he was summoned and threatened him not to (inaudible) police.

[3]       The principal claimant received a voice message on XXXX, 2019, from the cartel informing him that he was going to be picked up after work tomorrow. ln fear, the claimant went to work the next day, where he was intercepted by the cartel, blindfolded, and forced into a van once again. Again, the principal claimant was told it was a good thing he did not try to go to the police and forced to XXXX for his boss. The principal claimant was blindfolded again, taken into a van, dropped off at the same place as last time, and again warned and threatened by the cartel members.

[4]       The principal claimant again received another call by the cartel on XXXX, 2019, informing him the same would occur the next day. The principal claimant was taken again in the same manner and forced to XXXX for the cartel. This time, the principal claimant met another XXXX who told him to try and escape far away with his family as this man himself had already tried to escape and one (1) of his family members had been killed by the cartel.

[5]       In fear, the claimants took their children out of school, moved to a relative’s home in Cancún, and filed a denunciation. The claimants noticed strange vehicles in the area and moved to the other brother’s home of the associate claimant in Playa del Carmen. The principal claimant asked for a work transfer, which was granted during this time. The claimants began to receive threatening calls that the cartel was aware of the denunciation and they could not escape them. When the claimant was stopped answering the phone calls, they continued to receive threatening text messages.

[6]       The principal claimant was informed by co-workers that armed men are looking for him at his old workplace. The claimants then moved to the principal claimant’s father’s home in XXXX, Yucatán, never leaving their home and children not attending school.

[7]       The claimants applied for their passports. The principal claimant arrived in Canada on, XXXX, 2019, and the associate claimant along with the minors arrived in Canada on XXXX, 2020. The claimants filed for protection on November 3rd, 2020.

[8]       In terms of the delay, which I asked the principal claimant about, he indicated that when he first arrived in Canada, he was hoping that things would get better, but he and his family continued to be threatened. The principal claimant testified that once he learned about Canada’s refugee protection through a friend, he started his family’s application. I accept this as a reasonable explanation and I draw no negative inference.

[9]       I find that your identities as nationals of Mexico are established by the documents provided, including certified copies of your Mexican passports.

[10]     ln terms of credibility, I am reminded of the case of Maldonado, which establishes that when a claimant swears to the truth of allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.

[11]     I find you to be credible witnesses and therefore believe what you have alleged in support of your claim. You have testified in a straightforward manner, and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.

[12]     You provided supporting material, including a copy of the denunciation files, employment and educational documentation, pictures and copies of the threats that you received via text, a copy of the medical treatment the PC sought after his kidnapping on    XXXX, 2019, and affidavits and letters of support from family members, neighbours, and co-workers, all of which corroborate your allegations.

[13]     Based on the credibility of the claimants’ allegations, the principal claimant’s identity as someone who defied and escaped the cartel’s demand to work for them, and the objective documentary evidence set out below, I find that the claimants have established on a balance of probabilities that if they return to Mexico, they will be subjected to violence at the hands of the cartel.

[14]     The harm that the claims would face upon return to Mexico clearly amounts to a personalized risk to cruel or unusual treatment or punishment. That is, they would face a personalized risk to their lives because the principal claimant defied them and did not do as he was instructed by the cartel. This is a risk not generally faced by the Mexican population because it is defined by the claimants as the PC again defied the cartel’s demands to work for them. For these reasons, I find that the claimants face a section 97 risk in Mexico.

[15]     There is a presumption that the state has the ability to protect its citizens. That presumption can be rebutted by clear and convincing evidence that it is not reasonable to seek state protection or that state protection will not reasonably be forthcoming.

[16]     The documentary evidence clearly establishes that corruption in the police force in Mexico is a serious problem with no indication of improvement in recent years. Organized crime has deeply infiltrated police institutions at all levels, and law enforcement agencies have been involved in facilitation of illegal business activities, working for organized crime, and systematically violating human rights. Item 9.10 of the NDP states that there is a blatant corruption and abuse of power within the police and that they are involved in crimes. They have been reported by the National Anti-Corruption System. They have also — there have also been credible reports of police involvement in kidnapping for ransom and that federal officials are sometimes accused of perpetrating these crimes.

[17]     Given the clearly documented state of police corruption coupled with the fact that it is well-documented that cartels have infiltrated the police and the claimants cannot be expected to turn to the state for protection — therefore, the presumption of state protection is rebutted.

[18]     In terms of internal flight alternative, at the beginning of the hearing, I suggested the internal flight alternative of Mérida, Yucatán, could exist. I must consider if the cartel would have the motivation and capacity to pursue the claimants if they relocated in Mexico.

[19]     However, after considering ail the evidence, I find that the claimants have established on a balance of probabilities that the agents of harm, specifically the CJNG cartel, have the capacity and the motivation to locate them throughout Mexico.

[20]     The objective evidence indicates that cartels are extremely powerful and believed to have a presence in every part of the country. The objective documentary evidence confirms that cartels have the capacity to track individuals beyond their areas of operation by relying on representation they have in other areas. As well, cartels use family networks and private investigators to track people as well as property records in the US and Mexico and by placing GPS trackers on cars. The cartels, according to Exhibit 3, Item 7.15 of the current NDP, states corrupt law enforcement agents are used to obtain information about the people they pursue.

[21]     I find the above-cited evidence establishes on a balance of probabilities that the claimants could be located and harmed by the cartel anywhere in Mexico. While the claimants are not high-profile journalists, or politicians, or someone who could harm the operation of the cartels through their power and influence, the documentary evidence states that a large debt or persona( vendetta could motivate them to track someone outside of their area. I have considered the cartel’s level of interest in the claimants in determining whether on a balance of probabilities, there is a section 97(1) risk for the claims throughout Mexico.

[22]     The claimants moved from Cancún, to Playa del Carmen, to XXXX, where each time, they were located by the cartel, watched, and continued to be threatened. I find it would be reasonable to expect that the cartel would look for the claimants upon their return to Mexico and that they are motivated to pursue them as the principal claimant defied them and did not do as they demanded of him and work for them. For the reasons above, I find the agents of harm would pursue and harm the claimants on a balance of probabilities throughout Mexico. For these reasons, I find there is no viable internal flight alternative for the claimants.

[23]     I conclude on a balance of probabilities that the claimants face a personalized and prospective risk to their lives or a risk of cruel and unusual treatment or punishment in every part of Mexico. This is specific, personal risk faced by the claimants as opposed to indiscriminate or random risks faced by the others. In conclusion, for the preceding reasons, I find that the claimants are in need of protection pursuant to section 97 of the IRPA, and therefore, I accept their claims.

——— REASONS CONCLUDED ———