2023 RLLR 57

Citation: 2023 RLLR 57
Tribunal: Refugee Protection Division
Date of Decision: December 11, 2023
Panel: Abbas Kwofie
Counsel for the Claimant(s): Kirk J. Cooper
Country: Mexico
RPD Number: TC3-20097
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: 000110-000116

                                      

REASONS FOR DECISION

 

INTRODUCTION

 

[1]       These are the reasons for the decision in the claim for refugee protection made by XXXX. The claimant claims 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

 

[2]       The allegations in support of the claim are set out in the claimant’s Basis of Claim (BOC) form.[2] In summary, the claimant alleges that he is at risk from the Jalisco New Generation Cartel (CJNG) as his life was threatened in an attempt to get the claimant to pay an extortion fee of XXXX pesos per month initially at his XXXX, an amount which then escalated to XXXX pesos.

 

DETERMINATION

 

[3]       The panel finds that the claimant is a person in need of protection, pursuant to section 97(1) of the IRPA because, on a balance of probabilities, he would be subjected personally to a risk to his life or to a risk of cruel and unusual treatment or punishment, should he return to Mexico.

 

ANALYSIS

 

Identity

 

[4]       The claimant has established his personal identity as a national of Mexico, on a balance of probabilities, by his testimony and by the filing of personal identity documents, notably, certified true copies of his Mexican passport.[3]

 

Credibility

 

[5]       In assessing the credibility of the evidence presented by the claimant, the panel refers to the Federal Court of Appeal in Maldonado wherein the Court stated, in part, “when [a claimant] swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.”[4]

 

[6]       Although there were a few credibility issues during the course of questioning, and while the panel found the documentary evidence lacking in some instances, the claimant was consistent and credible with respect to the central allegations of his claim, being that he was targeted by the CJNG at his XXXX for the purposes of extortion, on a balance of probabilities.

 

No nexus

 

[7]       The panel finds that the allegations made by the claimant are criminal in nature, and criminal acts do not generally establish a nexus to a Convention ground. The claimant w as not targeted on the basis of any of the five Convention grounds.

 

[8]       The panel finds that the claimant’s allegations, therefore, will be assessed under section 97(1) of the IRPA.

 

Objective Basis of Future Risk

 

[9]       Based on the credibility of the claimant’s allegations, and the objective documentary evidence set out below, the panel finds that the claimant has established, on a balance of

probabilities, if he returns to Mexico, he will be subjected to violence at the hands of the CJNG cartel.

 

[10]     The objective evidence indicates that the CJNG is an extremely powerful cartel, believed to have control over half of Mexico, with a presence in every part of the country. It is said to be large and powerful enough to be capable of corrupting the authorities at the federal, state, and local levels.[5] The CJNG is deemed by many to be the largest and most dangerous drug trafficking organization in Mexico and is known for the use of extreme and intimidating violence.[6] The evidence also confirms that the CJNG has alliances with several other large cartels and has a national scope of influence.[7]

 

State Protection

 

[11]     The panel finds that there is clear and convincing evidence that state protection in Mexico is inadequate for the claimant, in his circumstances, and finds the claimant has rebutted the presumption of state protection.

 

[12]     The documentary evidence establishes that organized criminal groups throughout the country aim to dominate and intimidate local politicians and law enforcement, infiltrate state authorities, and “can use ‘corrupt law enforcement agents’ to obtain information about people they pursue.”[8]

 

[13]     Further documentary evidence in item 10.2 notes that:

 

[C]corruption, including within the armed forces and federal police [Policia Federal], underpins state collusion with criminals. [P]olice corruption remains a major problem in Mexico and there is little indication of improvement in recent years [and] … organized crime has deeply permeated police institutions.[9]

 

[14]     In addition, the same NDP item states:

 

In most Mexican states other than Yucatan, Campeche, and Aguascalientes, local police have been infiltrated by organized crime … analyses of drug trafficking, organized crime and human rights violations also highlight the role of police at all levels – federal, state, local – in facilitating illegal businesses, working for organized crime, and systematically violating human rights.[10]

 

[15]     The same NDP item further notes:

 

According to the BTI 2020, [i]n many localities of Mexico, the drug organizations have control of the local police. The same source also indicates that “there is no trust between the different police forces, as municipal and state police have been infiltrated by the drug cartels and are, therefore, rarely informed of operations led by federal police or the army.” Similarly, an article by KPBS, a San Diego news service, states that [t]he federal government has said infiltration by organized crime is a problem in many police forces in Sonora and around the country.[11]

 

[16]     Further documentary evidence in item 10.2 notes:

 

There are mechanisms available to report police corruption at the municipal, state, and federal level… [yet]… surveys show that citizens are highly unlikely to file official complaints of corruption and the most cited reasons for doing so are ‘waste of time’ and ‘fear of reprisals.[12]

 

[17]     Additionally, it is noted in item 2.1 that:

 

Criminal groups, especially drug cartels and gangs, were implicated in numerous killings, acting with impunity and at times in collusion with corrupt federal, state, local, and security officials.[13]

 

[18]     In light of the above cited evidence, the panel finds that there is clear and convincing evidence that state protection in Mexico is inadequate for the claimant, in his circumstances. For all of these reasons, the panel finds that the claimant has rebutted the presumption of state protection.

 

Internal Flight Alternative (IFA)

 

[19]     The panel has considered whether a viable IFA exists for the claimant. The panel identified Merida and Campeche at the outset of the hearing as viable options.

 

[20]     The objective evidence established that the CJNG is a powerful and violent cartel with a presence in 32 Mexican states which it has achieved through extensive alliances and smaller cells. The CJNG is now established in Merida and Campeche, and there is evidence that the CJNG has the highest operational capacity, compared to any other cartels, in the country and that they have a considerable presence in the Yucatan.

 

[21]     Further, the objective evidence also addresses the means and motivation of the CJNG and other criminal organizations to track individuals who relocate within Mexico. The evidence indicates that criminal groups are motivated to track individuals for a number of reasons including the loss of money, personal rivalries, political incentives, or personal vengeance, and also indicates that if an organized criminal group that is dominate in other parts of Mexico is interested and willing to retaliate against people relocating to other areas of the country, they could doit easily. Further, the objective evidence highlights the CJNG are known for their use of brutality and violence.

 

[22]     While the claimant is not a high-profile journalist or politician, or an individual who could harm the operations of the CJNG through his power and influence, the documentary evidence states that a large debt or a personal vendetta could motivate a gang to track someone outside their area.

 

[23]     The panel has considered the CJNG’s level of interest in the claimant in determining whether, on a balance of probabilities, there is a section 97(1) risk for the claimant in the IFA location.

 

[24]     As for the circumstances of the claimant, he was targeted on multiple occasions for the purposes of extortion beginning in XXXX 2022. This happened again in XXXX 2022 and XXXX 2022. The claimant also went to the police on several occasions but despite him doing this, the agents of harm returned. Due to the threats, he began paying the fee in XXXX 2022, which he paid until XXXX 2022 when they increased the amount, and he was unable to gather the fonds. Thereafter, the claimant went to hide in Cancun, where he and his family received calls from the agents of harm, and he then left for Canada in XXXX 2022.

 

[25]     In addition, since the claimant has been in Canada, he has continued to receive messages and phone calls from the agents of harm on XXXX, 2023 where they asked him for money and if he did not comply, they would harm his family. In addition, the agents of harm sent him threatening WhatsApp messages (which he disclosed) and he continues to get calls from the same area code which he believes is the agents of harm up until XXXX, 2023.

 

[26]     The panel finds that since the claimant has been repeatedly targeted and threatened on multiple occasions, and since the agents of harm operate throughout the country, there is a likelihood that the claimant would, if relocated to any of the of the other parts of the country, face the same risks. Based on the evidence before it, the panel finds that no viable IFA exists for him in Mexico.

 

[27]     The panel concludes, on a balance of probabilities, that the claimant faces a personalized and prospective risk to his life, or a risk of cruel and unusual treatment or punishment in every part of Mexico.

 

CONCLUSION

 

[28]     The panel finds that that the claimant is a person in need of protection pursuant to s.97(1)(b) of the IRPA and the panel accepts his claim.

 

 

(signed) Abbas Kwofie

 

December 11, 2023

 

 

 

[1] The Immigration and Refugee Protection Act, S.C.2001, c.27, as amended, sections 96 and 97(1).

 

[2] Exhibit 2, Basis of claim form TC3-20097

 

[3] Exhibit 1. 

 

[4] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C.302.

 

[5] Exhibit 3, National Documentation Package for Mexico (NDP) dated September 29, 2023, item 7.17.

 

[6] Ibid, item 7.2

 

[7] Ibid, item 7.15.

 

[8] Ibid, item 7.15.

 

[9] Ibid, item 10.2.

 

[10] Ibid. 

 

[11] Ibid.

 

[12] Ibid.

 

[13] Ibid, item 2.1.