2023 RLLR 5

Citation: 2023 RLLR 5
Tribunal: Refugee Protection Division
Date of Decision: June 13, 2023
Panel: Katherine Whitelock
Counsel for the Claimant(s): Alfonso Mejia Arias
Country: Mexico
RPD Number: TC1-11758
Associated RPD Number(s): TC2-00040, TC2-00041
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: So, this is a decision in the claims of XXXX XXXX XXXX XXXX, who I will call the principal claimant, her mother, XXXX XXXX XXXX XXXX, who I will call the associate claimant, and her daughter, XXXX XXXX XXXX XXXX, who I will call the minor claimant.

[2]       The claimants are citizens of Mexico and claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act, or IRPA. The principal claimant was appointed as designated representative for the minor claimant, her daughter.

[3]       I have considered and applied Chairperson’s guideline 4, gender considerations in proceedings before the Immigration and Refugee Board in my analysis and reasons.

DETERMINATION

[4]       I find that claimants are Convention refugees.

ALLEGATIONS

[5]       The facts advanced and alleged in support of the claim are set out in the claimants’ Basis of Claim forms in Exhibits 2.1, 2.2, and 2.3, and the narratives attached to the principal and associate claimants’ BOCs, upon which all relied.

[6]       To summarize, the claimants are from the Mexico City area. Principal claimant studied XXXX in university, and in 2016 started working in XXXX XXXX for a XXXX with operations in Mexico City, Querétaro and elsewhere in the country. I will designate the XXXX as VR.

[7]       She was proficient in her position and soon began reporting directly to the company’s owner, who I will call CB. In XXXX 2018, the principal claimant travelled to VR’s operations in Querétaro for an extended XXXX XXXX with CB. CB began to sexually harass her with unwanted casual touching, and she asked him to stop. He also attempted to pressure her into sharing a hotel room with him for the duration or in the alternative, staying in an adjoining room. But she refused and insisted on a fully separate one (1). As the month went on, CB escalated his sexual harassment, pressuring her to work late night overtime alone with him and asking her inappropriate personal questions. This continued after returning to Mexico City as well.

[8]       At the end of 2018, VR held an event at the Querétaro XXXX that required the principal claimant to travel there again, and CB forced his way into her bedroom to attempt to sexually assault her. She was able to push him away and slept in a co-worker’s room for safety. No longer wishing to tolerate CB’s sexual harassment, the principal claimant decided to leave her job with VR in XXXX 2019. CB then began harassing her at the family home and became agitated when her parents said she was not in. In late XXXX 2019, she attempted to seek a restraining order against CB, but police refused on the basis there was insufficient evidence and further castigated her for “provoking him.”

[9]       After being rebuffed by police, the principal claimant went to the fiscalia to speak with prosecutors. After being kept waiting for several hours, she was told that she could not file a complaint and must leave. The officials warned her to stop making accusations against CB, who they said was a friend of the XXXX XXXX XXXX, and threatened that if she would not keep quiet, she would “face the consequences.” After several months of no contact, during which the principal claimant hoped CB had been frightened off by her going to the authorities, he came to her home in mid-XXXX 2019. CB threatened that if she refused to be in a relationship with him, he would make certain that no man could have her and threatened that he had the resources to “disappear her.”

[10]     The associate claimant, the principal claimant’s mother, urged her to leave the country to flee CB after this. And the principal claimant traveled to Canada in XXXX 2019, leaving her daughter in the care of her mother. She extended her visitor status repeatedly in the hopes that CB would give up his harassment, but her parents told her that strangers had repeatedly come to the house on CB’s behalf looking for her. She eventually raised a refugee claim in March 2021.

[11]     Back in Mexico, the associate claimant started noticing being followed by the same unknown vehicle over the span of several weeks in late 2019 and became nervous to go out. Previously working as a XXXX, providing services in her own home and the client’s homes, she stopped taking out calls after this. With the COVID-19 pandemic in March 2020, she stopped working entirely. By XXXX 2021, with pandemic conditions improving, she began feeling comfortable to go out of the house from time to time.

[12]     In XXXX 2021, while walking home with the minor claimant, the associate claimant was accosted by two (2) armed men on a motorcycle. The men demanded to know the principal claimant’s location and threatened to kill the two (2) if they refused to say. On being told the principal claimant was no longer in Mexico, the men threatened that if she did not return and voluntarily give herself up, they would kill the associate minor claimants. The associate claimant informed the principal claimant immediately, who told her to flee the country as police would not help. They made arrangements to travel as soon as they could and arrived in Canada on XXXX 2021, raising claims for refugee protection upon entry.

ANALYSIS

[13]     The claimants’ identity. The claimants’ personal identities in Mexican nationality were established based on their Mexican passports in evidence in Exhibit 1 and the principal and associate claimants’ testimony. I am satisfied on a balance of probabilities that they have credibly established their identities.

Nexus

[14]     The principal claimant describes in her narrative being sexually harassed and threatened by her former boss, who evidently has connections to politicians and law enforcement authorities in Mexico, and who has consistently harassed and pursued her, both herself and through allies, since she was employed with VR in 2018. I am satisfied this scenario would constitute being targeted for persecution as a member of a particular social group on the basis of gender. Further, on being unable to locate the principal claimant, CB’s allies are reported to have threatened violence to the associate and minor claimants as well.

[15]     Per the courts in Asghar and Gonzalez, where the primary alleged victim of persecution has nexus to Convention, a derivative claim based on familial connection “related to discrimination or fundamental human rights”, can have nexus on the basis of being membership in a particular social group. Accordingly, this scenario would constitute nexus to the Convention on that ground for the associate and minor claimants, even if they had not been personally threatened by these men.

[16]     I have, accordingly, assessed the allegations under both sections 96 and 97(1)(b) of the IRPA.

Credibility

[17]     When a claimant swears a certain factor true per the case of Maldonado, this creates a presumption they are true unless there is a valid reason to doubt their truthfulness. As noted above, I have also considered and applied guideline 4 on gender considerations in proceedings before the IRB, which offers guidance with respect to the application of a trauma-informed approach to proceedings. The guidelines note that individuals who experienced trauma may have certain difficulties in presenting their case, including recalling specific times, dates, and locations. Recounting events in chronological order or even recalling certain events in full.

[18]     I drew on this guidance, for instance, to advise the principal claimant that I did not require her to go into any particularly upsetting details with regards to the various instances of sexual harassment and attempted sexual assault from CB, as well as with the associate claimant and the threats they reported after the principal claimant’s departure. In any event, the principal and associate claimants’ testimony was clear, straightforward, responsive to my questions. I considered that they were generally coherent, and their statements reflected their respective parts of the narrative, as reported, with no significant inconsistencies or contradictions. On a balance of probabilities, I find both to be credible witnesses as to their experiences.

[19]     The claimants also provided a number of items in personal disclosure in support of their allegations in Exhibits 5, 6, and 7. Many of these are support letters from friends and family members accompanied by their federal voter ID cards. None provide a great deal of detail but are generally reflective of the allegations. Highlights include letters from the principal claimant’s father, attesting to the principal claimant telling her parents that her reason for quitting VR was due to CB’s sexual harassment, as well as a letter from a former co-worker to confirm she observed CB’s inappropriate touching and comments at the workplace, as well as another co-worker in his room the principal claimant slept after CB’s attempted sexual assault after the company party. There is also a letter from the claimant’s former neighbour who states that she witnessed the principal claimant being harassed at home. These are all dated throughout April 2022, with signatures similar to those appearing on the original Spanish language identity documents.

[20]     Exhibit 7 features also another letter from the same neighbour, dated May 2023, who states that she has observed unknown persons regularly watching the claimant’s empty house. The evidence also contains the principal claimant’s resignation letter from VR in which she very diplomatically indicates she has decided to leave, dated XXXX XXXX, as well as a selection of Instagram posts from the principal claimant’s account in which she promotes and is identified as a XXXX XXXX for VR. There are also a number of detailed paystubs or tax receipts indicating the principal claimant’s salary and deductions on a monthly basis for the position of VR’s XXXX XXXX.

[21]     I observe no features of any of these documents which cause me to doubt their provenance or reliability. And taking all of this documentation and testimony into account, I am satisfied the principal claimant has credibly established on a balance of probabilities she formerly worked at VR and experienced persistent sexual harassment from CB. I am satisfied also that the claimants have similarly credibly established that CB and/or persons in his employed (sic) have continued to harass herself and her family members in search of her after she left Mexico in 2019, including the incident of armed men threatening the associate and minor claimants in XXXX 2021, and that unknown persons are continuing to observe the claimant’s old home in search of them. Accordingly, I find that the claimants have more likely than not established their well-founded, subjective fear of persecution from CB and his allies in Mexico.

Objective Basis

[22]     The principal claimant described in her narrative and testimony of working for CB, that he relentlessly sought to corner her and pressure her into sex, both by physical force and with the financial and social power he held over her. When she continued to refuse him, he escalated to threatening to harm or kill her so that no other man could “have her either.” I note that, first of all, such been gender-based violence, what guideline 4 refers to as the cycle of violence and coercive control is very common in Mexico. Documents 5.10, 2.1, and 2.2 of the National Documentation Package all discuss thousands of killings of women reported every year throughout the country, many of which are investigated specifically as femicides.

[23]     Item 5.6 of the NDP blames the increasing level of arbitrary violence against women to the fact that men targeting women are often (inaudible) the effect of impunity by Mexico’s judicial system. The likelihood of perpetrators being brought to justice is very low, regardless of circumstances or evidence. And it is reported municipal authorities have covered up and facilitated violence against women by refusing to conduct adequate investigations. Document 5.10 further indicates the inefficiency of judiciary institutions discourages many women from either making an initial complaint or going through the process. Sometimes this is due to the institutions having an overload of work. Other times, because of a lack of training and many other times, it is because the agents of the institution themselves share these traditional and macho values.

[24]     As a result, they hinder the processes, where victimizing women, or simply wear them down by asking them to devote time and resources, there lacking, in order to follow unnecessarily complicated procedures. This results in procedural failures that end up invalidating claims and complaints. And indeed, in many cases, even law enforcement authorities side with the attackers, particularly if they have political power influence which results in even further impunity. Further, within that same document, the New York Times is cited for a report that law enforcement officials and authorities can be passive, complicit, or in sometimes, even actively abusive towards women who try to report violence or harassment they experience.

[25]     In addition, in several prominent cases, authorities have first investigated women’s killings as suicides, which places the blame on the victim and absolves her killers of responsibility even before investigation is conducted. Such attitudes are pervasive throughout Mexican society, with even President Andrés Manuel López Obrador, publicly known as AMLO, consistently denying the extent of the problem and declaring against all evidence per Document 4.6, that “Mexican women have never been as protected as now.” He has similarly publicly claimed, per NDP Document 5.6 that 90 percent of all 911 calls concerning gender-based violence are false.

[26]     More broadly, according to a 2017 study cited in NDP Document 9.10, an overview of Mexico’s ineffective National Anti-corruption System. An overwhelming majority of the population perceives all law enforcement institutions as corrupt. This document also discusses how, for instance, the local organization of the Los Zetas cartel in the state of Coahuila were able to subvert and control the entire state, pursuing their criminal activities with impunity, with the consent, and sometimes even direct assistance of government officials and police. NDP Document 10.10 indicates it is widely accepted that “Mexican police have been hobbled by corruption for decades”, and there are numerous examples of police forces directly working alongside their local cartel organizations to protect criminals from scrutiny and to assist them in pursuing their targets. Because of the widespread perception that police are corrupt or otherwise ineffective, many victims of crime do not bother to report their experiences or seek justice.

[27]     NDP Document 9.18, a Response to Information Request prepared by the IRB Research Directorate NEX20 0740.a concerns access to databases of personal information. This states in all law enforcement institutions at every level of government can access national database systems. While there are safeguards against unauthorized access, these are obviously somewhat less relevant if a corrupt user such as one (1) of CB’s allies in government or law enforcement, legitimately has access to sensitive information. Further, I accept as credible the principal claimant was refused assistance by prosecutors when she sought a restraining order and threatened not to make allegations against CB or defame him due to his political connections. It is more likely than not, given this experience, that CB does indeed have sufficient influence with authorities to assist him in carrying out his threats, including tracking down the claimants by consulting such databases.

[28]     Given the principal claimant’s testimony in this country evidence regarding the effect of impunity men enjoy in Mexico when engaging in violence against women, including sexual violence and sexual harassment, I accept the claimants’ fear of persecution from CB and his allies is also objectively well-founded. The claimants would face an ongoing, serious possibility of being targeted for harm by CB or his allies if returning to Mexico.

State Protection/Internal Flight Alternative

[29]     While there is a presumption that states can protect their own citizens, except in a state of complete breakdown, that presumption can be rebutted with clear and convincing evidence of the state’s inability or unwillingness to protect the citizens. Given the principal claimant’s personal experiences of being rebuffed by police and prosecutors, and the evidence I have cited above with regards to objective basis, I find on a balance of probabilities the claimants would not be able to avail themselves of adequate or effective state protection in Mexico. The presumption of state protection is thoroughly rebutted due to the demonstrated misogyny of officials and the corruption of law enforcement institutions.

[30]     I consider in this regard also whether the claimants would have a viable internal flight alternative. However, in light of having accept as credibly established that CB has high-level political connections to the — for instance, XXXX XXXX XXXX XXXX, and has the power to exercise some kind of corrupt influence on police and prosecutors, as well as the resources to retain a number of persons to seek the claimants and threaten violence on his behalf, as well as to confidently assert that he could “disappear the principal claimant”, I find on a balance of probabilities the claimants would continue to face a serious possibility of persecution everywhere in Mexico. That would be the case unless the claimants were to entirely “go off the grid”, which would be objectively unreasonable, per the case of Thirunavukkarasu.

[31]     Given this, the test in the case of Rasaratnam would fail at the first prong and the claimants would have no viable IFA.

[32]     Based on the totality — sorry.

CONCLUSION

[33]     Based on the totality of evidence before me, I find the claimants have established a subjectively and objectively well-founded fear of persecution as member of particular social groups in Mexico, and there is a serious possibility of facing severe harm or death because of it. They would have no resort to state protection nor viable IFA.

[34]     These claims are, therefore, accepted.

——— REASONS CONCLUDED ———