2023 RLLR 53
Citation: 2023 RLLR 53
Tribunal: Refugee Protection Division
Date of Decision: October 30, 2023
Panel: Matthew Stumpf
Counsel for the Claimant(s): Harkamal Singh
Country: Mexico
RPD Number: TC2-29558
Associated RPD Number(s): TC2-29560, TC3-21657, TC3-21662, TC3-21663
ATIP Number: A-2023-01721
ATIP Pages: 000065-000076
REASONS FOR DECISION
[1] XXXX (the Principal Claimant), XXXX and XXXX (the Associate Claimants), and XXXX and XXXX (the Minor Claimants; and all five collectively, the Claimants), citizens of Mexico, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
[2] The Principal Claimant was appointed as the designated representative for the Minor Claimants.
ALLEGATIONS
[3] The Claimants allege a prospective risk to their lives at the hands of XXXX (LC) and the Jalisco New Generation Cartel (CJNG). They claim these two criminal organizations are linked or allied with each other. They detail four instances where members of LC and/or the CJNG had assaulted them and one instance of attempted kidnapping between 2017 and 2022.
DETERMINATION
[4] I find that the Claimants are persons in need of protection as contemplated by section 97(1) of IRPA and therefore accept their claims.
ANALYSIS
Identity
[5] I find on a balance of probabilities that each of the Claimants has established their personal and national identity as a citizen of Mexico through the identity documents filed, namely their passports.[2]
Credibility
[6] In claims before the RPD, there is a presumption that sworn testimony is true unless there is valid reason to doubt its truthfulness. I found the testimony of the Principal Claimant, the Associate Claimant RRS, and the Associate Claimant AGL to be consistent, compelling, and genuine.
[7] The Associate Claimant RRS testified that on XXXX, 2017 members of LC beat him up and stabbed him on the street near his home in Mexico City. Over the following three months, the Principal Claimant was approached by members of the CJNG and received messages on Facebook asking for the Associate Claimant RRS’ whereabouts. The Principal Claimant’s father was also approached by individuals identifying as both members of LC and the CJNG who asked him about the Associate Claimant RRS. Following these incidents, the Principal Claimant, the Associate Claimant RRS, and their parents decided to move to XXXX, State of Mexico in XXXX 2017.
[8] The Claimants had no further incidents with LC or the CJNG until XXXX 2021. One day in XXXX 2021, three armed members of the CJNG attacked the Principal Claimant, the Associate Claimant RRS, and their father in their yard. After the CJNG members were chased off by the neighbours, the Principal Claimant and Associate Claimant RRS took their father to a hospital in Cuajimalpa, Mexico City where their sister was living. They decided to relocate there and live with her. In XXXX 2021, two members of the CJNG attended the workplace of the Principal Claimant and the Associate Claimant RRS in order to collect an extortion fee from the
XXXX. While they were there, they recognized the Principal Claimant and attacked him. Both the Associate Claimant RRS and his brother-in-law intervened and together they managed to fight them off and force them to leave. As they left, they said they would return and finish them off. Following this incident, the Associate Claimant RRS left Mexico to come to Canada.
[9] The Principal Claimant was intercepted by four members of the CJNG two months later in XXXX 2022 as he was leaving work. They chased after him and attempted to assault him with an ice pick, but he managed to escape with only minor injuries. He went into hiding in XXXX with his aunt before leaving Mexico six months later. Shortly after he left, the Associate Claimant AGL began receiving calls every 2-4 weeks from people identifying as members of the CJNG asking her about the whereabouts of the Principal Claimant and the Associate Claimant RRS. They said they knew where she and the Minor Claimants lived. One day in XXXX 2022 when she was returning home from work, a white van pulled over and members of the CJNG tried to grab her. They yelled insults at her and asked about the Associate Claimant RRS and the Principal Claimant. She was able to run and get away by boarding a bus that was just across the street.
[10] In support of these allegations, the Claimants have submitted several supporting documents, including: hospital reports, photos, police statement, and letters of support from the Principal Claimant’s parents and brother-in-law. The hospital reports corroborate the testimony of the Claimants with respect to the dates of and injuries sustained in the assaults of XXXX, 2017 and XXXX 2021. The letter of support of JECU corroborates the Claimants’ testimony with respect to the assault in XXXX 2021 and his own assault by the CJNG in XXXX 2023 after the Claimants had left. The letter of support of the Principal Claimant’s parents also corroborates this latter assault of their son-in-law in XXXX 2023. These letters of support also claim that this has forced both the family of the Principal and Associate Claimant RRS, and the family of the Associate Claimant AGL, to relocate out of fear of further reprisals by the CJNG. These documents have no material inconsistencies, and I attach them full weight.
Personalized Prospective Risk Not Faced Generally
[11] The NDP notes XXXX as a smaller Mexico City gang with associations with larger criminal organizations including the Tepito Union.[3] This is corroborated by the country condition disclosure package submitted by the Claimants.[4] I note that a link between LC and the CJNG is not specifically made out in these documents or the NDP. However, the territory of LC and the CJNG has been shown to overlap and the testimony of the Claimants demonstrates that the CJNG has been pursuing them as well. I will therefore accept a link between LC and the CJNG for the purposes of my analysis.
[12] The NDP evidence shows that the CJNG is a well-organized, aggressive, and violent criminal group present in most of the Mexican states, and one of the largest and most dangerous criminal groups in the world.[5] The CJNG is known for its “aggressive use of violence”, and activities of the CJNG include human trafficking, homicide, forced disappearances, and other forms of extreme violence.[6] The CJNG is reported to have the most operational capacity and is the only cartel, apart from the Sinaloa cartel, to have a national presence.[7] This profile of the CJNG is consistent with the claimant’s testimony.
[13] As part of my analysis, I must assess the nature, basis and degree of risk faced by the Claimants. I must then compare the nature and degree of the risk faced by the Claimants with the nature and degree of risk faced generally by others from Mexico.
[14] I accept the vast capabilities, violent activities, and aggressive nature of the CJNG as well as their association with LC. The Claimants fear a future risk of death or serious harm from these criminal organizations. This constitutes the nature of risk faced by the Claimants. The underlying reason for this risk has not been made wholly clear as the Claimants have testified that they are not sure why LC and the CJNG have been pursuing them. However, I find the basis for this risk began with the assault of the Associate Claimant RRS on XXXX, 2017, from which the other four subsequent incidents have flowed.
[15] The degree of risk faced by the Claimants is significantly higher than others in Mexico, both in severity and number of incidents. The Claimants have sustained serious injuries from four assaults and an attempted kidnapping by members of LC and the CJNG over six years and across multiple municipalities. These violent incidents were more concentrated in 2021 and 2022, demonstrating an increase in the efforts of the CJNG to harm the Claimants as time passed. I find this constitutes a repeated, linked, and escalating personal targeting of the Claimants by these criminal organizations, and that this sufficiently distinguishes the risk they face from the generalized risk faced by others in Mexico.
[16] Accordingly I find, more likely than not, that the Claimants credibly would be personally subject to a prospective risk to life at the hands of LC and the CJNG should they return to Mexico. The risk they face is personalized and elevated relative to that of the general population due to the consistent attempts by members of LC or the CJNG to harm them over the span of several years in multiple different municipalities.
State Protection
[17] States are presumed to be capable of protecting their citizens except in situations where the state is in a state of complete breakdown.[8] The Claimants must rebut this presumption with clear and convincing evidence of the state’s inability to protect its citizens for their claims to succeed. I find that the objective country evidence successfully rebuts this presumption and serves as clear and convincing evidence that adequate state protection is not available to the Claimants in Mexico.
[18] The NDP evidence indicates that police forces in Mexico lack human and material resources to properly investigate crimes and that for all murders registered between 2010 and 2016, 94.8% of cases had no suspect facing charges.[9] According to the 2019 National Survey on Victimization and Perception of Public Safety, 93.2% of all crimes committed were either not reported or not investigated.[10] The NDP also states that 80% of police forces are controlled by criminals, that almost 60-70% are corrupted by organized crime, and that organized crime has infiltrated local police and politicians.[11] Other sources indicate that police at all levels (local, state, and federal) play a role in facilitating illegal businesses, working for organized crime, and systematically violating human rights.[12] Additionally, 59.2% of respondents in a 2019 survey reported that they had experienced an act of corruption with public security authorities.[13]
[19] I note that a claimant is not required to risk their life to seek ineffective protection of a state merely to demonstrate that ineffectiveness.[14] The Principal Claimant’s father tried to file an initial complaint following the assault of the Associate Claimant RRS on XXXX, 2017. However, the police informed him that LC was closely linked to the CJNG and that there could be negative consequences for filing a complaint against them. They were not willing to accept the complaint as a result. The Associate Claimant AGL also filed a complaint with the police after her attempted kidnapping but was too afraid to mention the CJNG in this complaint lest it attract their notice and motivate them to retaliate further against her.
[20] In light of the objective country documentation and unsuccessful attempts by the Claimants to avail themselves of state protection, I find that the Claimants have rebutted the presumption of state protection and that adequate state protection would not be available to the Claimants in Mexico.
Internal Flight Alternative
[21] I raised the issue of IFA with the claimant at the outset of the hearing and proposed Merida as a viable IFA.
[22] The Federal Court of Appeal has held that there is a two-pronged test for assessing an IFA.[15] The RPD must be satisfied that:
i. There is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or that it is more probable than not that the claimant would not be personally subject to a danger of torture or to a risk to life or risk of cruel and unusual treatment or punishment in the IFA; and
ii. 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 the claimant to seek refuge there.
[23] Both prongs of the test must be satisfied to find that a claimant has an IFA. Once the issue of IFA has been raised and potential IFAs have been identified by the RPD, the burden of proof then rests with the claimant to show that they do not have a viable IFA in those locations.
First Prong: Prospective Risk o(Harm in the IFA
[24] The Claimants have not established a nexus to a Convention ground, nor have they adduced any evidence of a danger of torture at the hands of the state or by a public official. I will therefore focus the first prong of the IFA analysis on section 97(1)(b) and whether the claimant has demonstrated that, more likely than not, he would be personally subject to a prospective risk to his life or of cruel and unusual treatment or punishment in the IFA of Merida. For the reasons outlined below, I find that the Claimants have successfully established that they would and therefore that Merida would not be a viable IFA.
Sufficient Means to Track the Claimants
[25] The NDP evidence shows that the CJNG is a well-organized, aggressive, and violent criminal group present in most of the Mexican states, and one of the largest and most dangerous criminal groups in the world.[16] The activities of the CJNG include homicide, forced disappearances, kidnappings, drug production, drug trafficking, drug trade, extortion, and extreme violence.[17] The NDP also supports the claimant’s allegations about forced recruitment by the cartels.[18] Additionally, the CJNG has a reported presence in Merida, though the NDP notes that violence there is much lower and criminal groups attempt to keep a low profile.[19]
[26] The NDP further indicates that most organized criminal groups have the capacity to find an individual throughout Mexico if sufficiently motivated using family networks, private investigators, property records, GPS trackers, communications networks (e.g., cell phone towers), government databases, and police, army, government contacts, and alliances with other criminal organizations.[20]
[27] Accordingly, based on the objective NDP evidence for Mexico, I find that LC and the CJNG have the capacity to track down the Claimants and harm the Claimants.
Sufficient Motivation ta Track the Claimants
[27] The NDP evidence states that motivations for a criminal organization to track an individual down include large unpaid debts, stolen or lost money, personal vendettas or rivalries, political incentives, high-value personnel, people with privileged information about the criminal organization’s operations, perceived betrayal, and cooperation with the authorities.[21]
[28] The Associate Claimant RRS submitted that he did not know why LC and the CJNG were after him and said they must have mistaken him for someone else. While the reason why LC and the CJNG have pursued the Claimants remains unclear, LC and CJNG have demonstrated a motivation to locate the Claimants in multiple different municipalities in both Mexico City and the State of Mexico (discussed in more depth above). Members of LC and the CJNG first assaulted the Associate Claimant RRS in Mexico City in 2017. They then tracked the Principal Claimant, the Associate Claimant RRS, and their father down to XXXX, State of Mexico in 2021 and assaulted them. They tracked the Principal Claimant, the Associate Claimant RRS, and their father down to Cuajimalpa nine months later and assaulted them again. Several weeks later, after the Associate Claimant RRS had left Mexico, the Principal Claimant was again assaulted by members of the CJNG as he was leaving work. The Associate Claimant AGL received 4-5 phone calls from members of the CJNG inquiring about the whereabouts of the Principal Claimant and the Associate Claimant RRS. Finally, members of the CJNG attempted to kidnap the Associate Claimant AGL several months after the other two Claimants had already left.
[29] Additionally, since their departure, the Principal Claimant’s brother-in-law has been assaulted by members of the CJNG and asked about the whereabouts of the Claimants. This happened just a few months ago in XXXX 2023, prompting both families of the Claimants to move to Tlahuac and change their phone numbers. The interest of the CJNG in the Claimants therefore appears to be ongoing.
[30] On the basis of the persistent actions taken by LC and the CJNG across various municipalities over the past 6 years, I find that the CJNG has demonstrated both the means and the motivation to track the Claimants down to the proposed IFA, should they relocate to Merida. Accordingly the Claimants have established that, more likely than not, they would be personally subject to a prospective risk to life or of cruel and unusual treatment or punishment should they seek refuge there.
[31] As the Claimants have successfully challenged the proposed IFA under the first prong of the IFA analysis, I need not proceed with the second prong of the IFA analysis. I find that the Claimants do not have a viable IFA in Merida or indeed throughout Mexico.
CONCLUSION
[32] I find that the Claimants are persons in need of protection under section 97 of IRPA and accept their claims.
(signed) Matthew Stumpf
October 30, 2023
[1] Immigration and Refugee Protection Act, SC 2001, c 27, as amended, ss 96, 97(l)(a) and 97(l)(b).
[2] Exhibit 1.
[3] NDP, Mexico, Tab 7.39 at p. 4: La Union Tepito. InSight Crime. 9 May 2022.
[4] Exhibit 5, Item 1.
[5] NDP, Mexico, Tab 7.7 at pp. 1-3: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG ta track and retaliate against people who move ta other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated ta track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021.
[6] NDP, Mexico, Tab 7.7 at pp. 4-6: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG ta track and retaliate against people who move ta other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated ta track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021.
[7] NDP, Mexico, Tab 7.7 at p. 1: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG ta track and retaliate against people who move ta other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated ta track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021; NDP, Mexico, Tab 7.18 at p. 8: Mexico: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available ta victims, including witness protection (2018-September 2020). Immigration and Refugee Board of Canada. 21 September 2020.
[8] Canada (Attorney General) v Ward, [1993] 2 SCR 689 at 725.
[9] NDP, Mexico, Tab 7.18 at p. 16: Mexico: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available ta victims, including witness protection (2018-September 2020). Immigration and Refugee Board of Canada. 21 September 2020.
[10] NDP, Mexico, Tab 7.18 at p. 18: Mexico: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available ta victims, including witness protection (2018-September 2020). Immigration and Refugee Board of Canada. 21 September 2020.
[11] NDP, Mexico, Tab 7.8 at p. 13: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG ta track and retaliate against people who move ta other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated ta track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021.
[12] NDP, Mexico, Tab 10.2 at p. 3: Mexico: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available ta report instances of corruption (2017- September 2020). Immigration and Refugee Board of Canada. 1 September 2020.
[13] NDP, Mexico, Tab 10.2 at p. 2: Mexico: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available ta report instances of corruption (2017- September 2020). Immigration and Refugee Board of Canada. 1 September 2020.
[14] Canada (Attorney General) v Ward, [1993] 2 SCR 689 at 724.
[15] Rasaratnam v Canada (Minister of Employment and Immigration), [1991] FCJ No. 1256, [1992] 1 FC 706 (CA).
[16] NDP, Mexico, Tab 7.7 at pp. 1-3: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated to track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021.
[17] NDP, Mexico, Tab 7.7 at pp. 4-6: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated to track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021.
[18] NDP, Mexico, Tab 7.48 at pp. 1-3: Mexico: Cartel recruitment practices, including information on whether taxi, truck or other transportation drivers are particularly targeted for forced recruitment by the cartels; whether there are consequences for refusing to be recruited; ability of the cartels to track recruits throughout the country (2020-August 2022). Immigration and Refugee Board of Canada. 25 August 2022.
[19] NDP, Mexico, Tab 7.8 at pp. 2-4: Mexico: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatan state, State of Campeche, and Baja California Sur); the ability and motivation of organized crime groups and cartels active in other areas of Mexico, including the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generaci6n, CJNG), Sinaloa Cartel, and Los Zetas, to track and retaliate against people who relocate to these areas (2019-August 2021). Immigration and Refugee Board of Canada. 8 September 2021.
[20] NDP, Mexico, Tab 7.8 at pp. 11-14: Mexico: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatan state, State of Campeche, and Baja California Sur); the ability and motivation of organized crime groups and cartels active in other areas of Mexico, including the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generaci6n, CJNG), Sinaloa Cartel, and Los Zetas, to track and retaliate against people who relocate to these areas (2019-August 2021). Immigration and Refugee Board of Canada. 8 September 2021; NDP, Mexico, Tab 7.48 at pp. 5-6: Mexico: Cartel recruitment practices, including information on whether taxi, truck or other transportation drivers are particularly targeted for forced recruitment by the cartels; whether there are consequences for refusing to be recruited; ability of the cartels to track recruits throughout the country (2020-August 2022). Immigration and Refugee Board of Canada. 25 August 2022.
[21] NDP, Mexico, Tab 7.8 at pp. 11-14: Mexico: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatan state, State of Campeche, and Baja California Sur); the ability and motivation of organized crime groups and cartels active in other areas of Mexico, including the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generaci6n, CJNG), Sinaloa Cartel, and Los Zetas, to track and retaliate against people who relocate to these areas (2019-August 2021). Immigration and Refugee Board of Canada. 8 September 2021; NDP, Mexico, Tab 7.48 at pp. 5-6: Mexico: Cartel recruitment practices, including information on whether taxi, truck or other transportation drivers are particularly targeted for forced recruitment by the cartels; whether there are consequences for refusing to be recruited; ability of the cartels to track recruits throughout the country (2020-August 2022). Immigration and Refugee Board of Canada. 25 August 2022.