2023 RLLR 54
Citation: 2023 RLLR 54
Tribunal: Refugee Protection Division
Date of Decision: August 21, 2023
Panel: Alexander Pannu
Counsel for the Claimant(s): Carlos Eduardo Vera de Freites
Country: Mexico
RPD Number: TC2-34878
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: 000077-000086
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of XXXX (the “claimant”) a citizen of Mexico who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
ALLEGATIONS
[2] The allegations are set out in the claimant’s Basis of Claim (BOC). In summary, the claimant witnessed and objected to police detaining a Colombian migrant in Cancun, Quintana Roo state in XXXX 2021. The police pushed him away and threatened him with obstruction of justice. The claimant filed a complaint against the police with the public prosecutor’s office. Days later, the XXXX at the scene XXXX phoned the claimant and threatened him.
[3] A few weeks later men identifying themselves as members of the Jalisco New Generation Cartel (CJNG) accosted the claimant, threatened him for reporting XXXX and demanded a weekly fee of XXXX pesos. The claimant moved back to Mérida to live with his mother. They began receiving calls from unknown numbers. In XXXX 2021, a banner containing a threat from the CJNG was hung outside his home. The claimant then filed a complaint with Mérida police about the banner and with the Human Rights Commission because of the Cancun prosecutor’s inaction. In XXXX 2021, CJNG members entered the claimant’s house, robbed, and assaulted him. Mr. XXXX claims he faces a risk of harm in Mexico from the CJNG because he filed complaints about the Cancun police with whom they have connections.
DETERMINATION
[4] The claimant has established that he faces a risk of harm from the CJNG should he return to Mexico because he filed complaints against a Cancun XXXX with links to the cartel.
[5] I find that the claimant is a person in need of protection, and I accept his claim for refugee protection under s. 97 of IRPA.
ANALYSIS
Identity
[6] The claimant established his identity, on the balance of probabilities, as a citizen of Mexico through his testimony and by submitting copy of his Mexican passport.
Credibility
[7] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.[2] Mr. XXXX’s testimony was consistent with his BOC narrative. His responses to the panel’s questions were spontaneous and his did not embellish his testimony. Based on his testimony and the documents submitted as evidence, I find on a balance of probabilities that the claimant and his evidence are credible.
Risk of Harm
[8] The claimant alleges that if he returns to Mexico, he faces a personalized risk of harm from the CJNG because he filed complaints with the prosecutor’s office in Cancun and Mérida and the Human Rights Commission in Mérida against the CJNG and Cancun XXXX who has links to the cartel.
[9] The claimant testified that he was a XXXX at a XXXX in Cancun, Quintana Roo. On the evening of XXXX, 2021, the claimant saw police trying to force a woman into their vehicle. The woman yelled that she was an undocumented Columbian and that the police were detaining her because she could not pay the XXXX pesos they were extorting from her. The claimant said she also accused the police of having ties with the CJNG.
[10] The claimant asked the police what was happening, and they told him to stop meddling.
He raised the issue of the woman’s rights and the police conduct. The XXXX with his name displayed on his badge, demanded the claimant’s Electoral Identity card which he then photographed. He shoved the claimant to the ground and told him not to intervene or he would be arrested for obstruction of justice.
[11] The claimant filed a report on the police’s action that night at the prosecutor’s office. The prosecutor was reluctant to accept the complaint. A copy of the claimant’s police report dated XXXX, 2021 was submitted as evidence.[3]
[12] The claimant testified XXXX started calling him about five days after his report hurling vulgar insults and threats against him for his complaint.
[13] A few weeks after the XXXX’s calls, the claimant was accosted as he left work by masked and armed men identifying themselves as CJNG members. They showed him a digital photo of his identity card which XXXX had taken. They told him to stop being a “snitch”, told him he was now on a blacklist and demanded XXXX pesos weekly or they would kill him.
[14] The claimant moved back to Mérida at the beginning of XXXX 2021 to live with his mother. In XXXX, they started receiving calls from unknown callers who said nothing and did not leave messages. In early XXXX 2022, the claimant found a banner outside his home in which the CJNG said he owed them money and if he did not pay they would harm him for being a snitch. A photograph of the banner and a news article reporting on the banner and the claimant’ s situation was submitted as evidence.[4]
[15] The claimant filed a report with the prosecutor’s office in Mérida about the banner and detailing the circumstances behind the threats to him. He also filed a complaint with the Human Rights Commission over the lack of action by the prosecutor’s office in Cancun over his original complaint about the police. The claimant submitted copies of the two complaints as well as a letter from his lawyer XXXX as evidence.[5]
[16] On XXXX, 2022 armed and masked men wearing clothing with CJNG insignia forced their way into the claimant’s house. They beat the claimant and told him they came because he had not paid the fee demanded in Cancun. They stole whatever cash the claimant had in the house.
[17] Since his departure from Mexico in XXXX 2022, masked and armed CJNG men went to his mother’s house on XXXX, 2022 looking for him. They vandalized her house and told her the claimant would be killed because he did not pay the cartel. The claimant submitted as evidence, a letter from her, a photo of the damage to his mother’s house, a news article about the CJNG raid of her house, and a copy of her complaint to the prosecutor’ s office about the raid.[6]
[18] Based on the documentary evidence and testimony, I find that the claimant has demonstrated that he faces a forward-facing personalized risk of harm from the CJNG if he returns to Mexico.
State Protection
[19] There is a presumption that a state has the capability to protect its citizens. A claimant can rebut that presumption, on the balance of probabilities, with clear and convincing evidence The claimant has an obligation to approach state authorities for protection if the protection might reasonably be forthcoming or it is objectively reasonable to seek protection. The burden of proof is directly proportional to the level of democracy in the country.
[20] The objective evidence however shows that corruption in Mexico, including within the armed forces and federal police underpins state collusion with criminals. Local police are particularly vulnerable to corruption and infiltration from organized crime groups, as they are overworked, underpaid, and understaffed. The federal government has said infiltration by organized crime is a problem in many police forces around the country.[7]
[21] In the claimant’s case, one of his agents of harm was a XXXX in Cancun who was angered by the claimant’s intervention in a potential unlawful detention. The XXXX was enraged when the claimant filed a complaint against him with the prosecutor’ s office. He telephoned him to berate and threaten him, calling him a snitch. When the claimant was accosted by CJNG members in Cancun, they called him a snitch. The cartel had a digital photo of the claimant’s electoral identity card. I find on the balance of probabilities that the Cancun XXXX who photographed the claimant’s electoral identity card gave it to the CJNG and sent them after the claimant.
[22] The claimant received no police protection despite filing complaints about the CJNG when they threatened him, when they hung a banner outside his house and when they attacked him in his home.
[23] After considering the objective evidence, the documentary evidence, and the testimony, I find on the balance of probabilities that there is clear and convincing evidence that the claimant cannot receive adequate state protection in Mexico should he return.
Internal Flight Alternative
[24] The two-pronged test for an IFA is well-established. The panel must be satisfied, on the balance of probabilities, that:
a) the claimant would not be subject personally to a danger of torture or to a risk of life or a risk of cruel and unusual punishment, or face a serious possibility of persecution in the proposed internal flight alternative; and
b) that conditions in that part of the country are such that it would be objectively reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.[8]
[25] Once the Panel has identified potential IFAs, the claimant has the burden of proof to show they do not have an IFA. During the hearing, I identified the city of Culiacan as a potential IFA.
[26] I find that there is a risk of harm anywhere in Mexico because there is sufficient evidence to establish, on a balance of probabilities, that the agents of harm have the means and the motivation to locate the claimant in Mexico.
The IFA is not safe
[27] Mexico is a large country with a population of over 130 million people covering an area of over 1.9 million sq. km.[9] The law provides for freedom of movement and the right to travel within Mexico. The panel must assess whether the agent of harm has both the “means and motivation” to locate the claimant in Culiacan. In making this assessment the panel considered the area of operation and level of interest in the claimant by the agent of harm.
Means of the agents of harm to locate the claimant in the IFA
[28] The documentary evidence suggests that if a criminal group has a very strong motivation to find a person and they are one of the more powerful criminal organizations in Mexico, then they may be able to find individuals through various means. For example, the organization may have connections to government authorities, or may bribe people working for telephone companies to track phone calls or messages.[10] This objective evidence suggests that a large criminal organization such as a cartel may have the capabilities to track down an individual if they have the motivation to do so.
[29] The claimant testified that the men who threatened him in Cancun after he filed a complaint against XXXX identified themselves CJNG members. The cartel also hung a banner outside his home in Mérida identifying themselves. According to the objective evidence, the CJNG has a presence in Cancun and Mérida.[11] I find on the balance of probabilities that the claimant’s agents of harm are the CJNG.
[30] Both the Mexican and American government have described the CJNG as one of the world’s most prolific and violent drug trafficking organizations. The CJNG are a consolidated, well-organized criminal group with solid financial networks and diverse criminal activities with a supranational presence through its own presence or through allies in most of Mexico’s states.[12] They are a criminal organization that could track down an individual in Mexico.
[31] Based on the claimant’s testimony and the documentary and objective evidence, I find on the balance of probabilities that the CJNG have the means to locate the claimant in Mexico.
Motivation of the agents of harm to locate the claimant in the IFA
[32] The second part of the first prong of assessing the proposed IFA is whether the agents of harm have the motivation to find the claimant if he returned to Mexico.
[33] The objective evidence says, “criminal groups are motivated to track certain individuals because they steal or lose money; due to personal rivalries; for political incentives/reasons or due to personal vengeance; perceived betrayal; public exposure of relationships with public officials, politicians or investments; or cooperation with authorities as informants or collaborative witnesses”.[13]
[34] In this case, the CJNG were threatening the claimant because of their connection to a Cancun XXXX who was angry that the claimant filed a complaint against him. The cartel took the opportunity to extort money from the claimant, but he did not pay and moved to Mérida and continued filing complaints against the CJNG. Revenge attacks against those that do not submit to their threats is part of the cartel’s culture.[14]
[35] Since the claimant came to Canada, the CJNG went to his mother’s house looking for him in XXXX 2022. The Yucatan state prosecutor XXXX in XXXX 2022 XXXX. The claimant’s mother XXXX went to the prosecutor’s office to file a complaint against the XXXX. A copy of the XXXX and her complaint dated XXXX 2023 was submitted as evidence.[15]
[36] The Yucatan Attorney General issued summonses for the claimant in XXXX, and XXXX 2022 to appear in court. I find on the balance of probabilities that the XXXX and the three summonses were orchestrated by the claimant’s agents of harm to try to locate him. Copies of the three summonses were submitted as evidence.[16]
[37] I find that the claimant has established on a balance of probabilities that the agents of harm have the motivation to find him in anywhere in Mexico. Accordingly, I find on a balance of probabilities that the claimant would be subject personally to a risk to his life, to a risk of cruel and unusual treatment or punishment, or to a danger of torture in Mexico and that the first prong of the IFA test has not been met.
The IFA is not reasonable
[38] Given the circumstances of the claimant, I do not need to determine whether the claimant has met the burden to demonstrate, on a balance of probabilities, that the proposed IFA is unreasonable in all circumstances.
CONCLUSION
[39] Based on the totality of the evidence and the analysis above, the panel finds that the claimant is a person in need of protection pursuant to sections 97(1)(a) or (b) of the Act. Accordingly, his claim is accepted.
(signed) Alexander Pannu
August 21, 2023
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Maldonado v. Canada (M.E.I.), [1980] 2 F.C. 302 (C.A.)
[3] Exhibit 5 – claimant disclosure
[4] Exhibit 5 – claimant disclosure
[5] Exhibit 5 – claimant disclosure
[6] Exhibit 5 – claimant disclosure
[7] NDP Mexico April 29, 2022 Item 10.2
[8] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.)
[9] NDP Mexico April 29, 2022 Item 1.1
[10] NDP Mexico April 29, 2022 Item 7.8 pp 11-12
[11] NDP Mexico July 8, 2020 Item 7.12
[12] NDP Mexico September 2, 2021 Item 7.7
[13] NDP Mexico September 17, 2021 Item 7.7
[14] NDP Mexico September 17, 2021 Item 7.7
[15] Exhibit 5 – claimant disclosure
[16] Exhibit 5 – claimant disclosure