2023 RLLR 60
Citation: 2023 RLLR 60
Tribunal: Refugee Protection Division
Date of Decision: December 6, 2023
Panel: Tina Androutsos
Counsel for the Claimant(s): Erasmo Fausto Moreno Risco
Country: Mexico
RPD Number: TC3-32879
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: 000126-000132
REASONS FOR DECISION
INTRODUCTION
[1] XXXX is a citizen of Mexico and is seeking Canada’s protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).[1]
ALLEGATIONS
[2] The claimant alleges that he is in danger and fears being killed by members of the CJNG cartel. The claimant alleges that upon finishing XXXX in XXXX 2018, he opened his own
XXXX business in Chihuahua where clients would seek his services for the XXXX. In XXXX 2018 the claimant alleges that he was approached by some men who were carrying weapons to do some XXXX. The claimant abided in fear and alleged that a few days later he was intercepted while out driving his car, told that he must XXXX and work for them or there will be consequences. The claimant alleges that the following week when the cartel came to his business, he XXXX, permanently closed the doors of the business, and moved in with his father. In XXXX of 2019 the claimant was intercepted by members of the cartel when leaving a client’s home, where he was beaten, threatened, and told he should never try to hide or change his phone number again. The claimant alleges that he went with his father to file a complaint with the police but was turned away. The claimant alleges he again changed his phone number in fear and a couple of weeks later got a job at XXXX. The claimant alleges that he was continually informed by his friends that cartel members were asking about him at the restaurants he frequented. In XXXX 2021 the claimant alleges that he received a phone call while at work at XXXX threatening him that they knew where he was, where he worked and lived and that they now had a new task for him which was to transport and camouflage drugs XXXX from the state to the border. The claimant alleges he resigned from XXXX and moved to his friend’s house in Oaxaca and again changed his number.
[3] On XXXX, 2021 the claimant was intercepted by two men while leaving the supermarket, beaten, and threatened with a gun to the head and told he must return to
and do as he was told, or he would be killed. The claimant in fear left and went to another friend’s home in Mexico City and in XXXX 2022 and alleges he began working at a XXXX company. The claimant further alleges that he requested the company pay him in cash in fear of the cartel finding him. The claimant alleges that on XXXX, 2022 he was informed by some coworkers that the police along with two men had come by and asked for him. The claimant left work, bought a ticket to Canada, got his PCR test and did not leave the house till the early morning hours of XXXX, 2022, where he went directly to the airport in Mexico City and came to Canada.
DETERMINATION
[4] The panel finds that the claimant is a person in need of protection for the reasons outlined below.
ANALYSIS
Identity
[5] The claimant has established his personal and national identity, through his Mexican passport.[2]
Delay
[6] The panel accepts the claimant’s explanation that he was alone, afraid, and unaware of the refugee protection program in Canada and that the language barrier was also a factor that delayed the claimant from applying for refugee protection.
Credibility
[7] When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their truthfulness.[3]
[8] According to Rule 11, the Refugee Protection Division Rules, the claimant must provide acceptable documentation to establish identities and other elements of their claim. In this case, the claimant did provide sufficient evidence, including photos evidencing the claimant’s work in
XXXX, proof of employment and letters of support[4]. As such, the panel further finds that the presumption of truthfulness stands, and the claimant is therefore credible.
Objective Basis of Future Risk
[9] Based on the claimant’s credible allegations and the objective documentary evidence, the panel finds that the claimant has established, on a balance of probabilities, that if he returns to Mexico, he will be subjected to a risk of violence at the hands of the agents of harm.
[10] According to the objective evidence, while cartels have fragmented in recent years, it is likely the cartel would still be motivated and capable of locating an individual who is of specific interest.[5] The panel finds that the claimant fits the profile of an individual who would be of ‘specific interest’ to CJNG cartel given that the claimant was one of the few people in Mexico with the XXXX and the cartel wanted the claimant to assist them with this part of their criminal activities including transporting their drugs XXXX. The panel further finds that the claimant would be in danger of being located and harmed by the agents of harm if he were to return to Mexico.
State Protection
[11] States are presumed to be capable of protecting their citizens except in cases of complete breakdown. Furthermore, Mexico is a democracy where citizens can choose their government through free elections which, generally speaking, fosters an environment where state protection may be available.
[12] Claimants are expected to seek state protection in their home country unless they would put themselves at risk in doing so. In this case, the claimant did go with his father to the police station but was informed that he did not have the evidence needed to file a proper complaint such as names of the individuals who threatened the claimant and was then turned away by the police. The claimant believes the Mexican authorities are corrupt and therefore, would not be able to provide him with protection from the CJNG cartel.
[13] The objective evidence establishes there is a high level of corruption among police forces working with organized criminals, and that municipal and state police have been infiltrated by the cartels.[6] The documentary evidence suggests that when analyzing drug trafficking, organized crime and human rights violations, police of all levels (local, state and federal) are present in the facilitation of illegal businesses, working for organized criminals, and systematically violating human rights.[7] Further, sources indicate that low pay contributes to police corruption and that local police are often particularly vulnerable to corruption or infiltration from organized crime groups because they are overworked, underpaid, and understaffed.[8]
[14] The panel finds that the claimant would not be able to access adequate state protection in Mexico given the rampant corruption within the police and government organizations which are often infiltrated by organized criminals. Therefore, based on the above noted evidence, the panel finds that the presumption of state protection has been rebutted.
Internal Flight Alternative
[15] In determining if the claimant could live safely in another part of Mexico, the panel must consider if the agents of harm would have the means and motivation to pursue the claimant if he were to relocate elsewhere in Mexico.
[16] While the panel acknowledges that Mexico is a large country made up of almost 130 million people[9], after considering all the evidence, the panel finds that the claimant has established, on a balance of probabilities, that the agents of harm have both the motivation and the capacity to locate him throughout Mexico.
Means of the Agents of Harm
[17] The panel acknowledges that the objective evidence within the National Documentation Package (NDP) of Mexico provides that, in Mexico, if large criminal organizations or cartels have the motivation, then they have the means to locate their victims throughout the whole geographic area of Mexico.[10] Therefore, the panel finds that the CJNG cartel have the means to locate the claimant in the proposed IFA location if motivated to do so.
Motivation of the Agents of Harm
[18] According to the objective evidence, 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.[11]
[19] As previously noted, the panel found that the claimant has established an objective basis of future risk since he fits the profile of and individual who would be of interest to the agents of harm. The objective evidence further establishes that the agents of harm would be motivated to track the claimant and cause him harm should he return to Mexico given his profile as the one of the few people in Mexico with the XXXX and the cartel wanted the claimant to assist them with this part of their criminal activities, including transporting their drugs
[20] For the above reasons the panel finds, on a balance of probabilities, that the perpetrators would pursue and harm the claimant throughout Mexico and, as such, there is no viable internal flight alternative for the claimant.
CONCLUSION
[21] The panel finds that the claimant is a person in need of protection pursuant to s.97 of the IRPA.
[22] Accordingly, the claim is accepted.
(signed) Tina Androutsos
December 6, 2023
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Exhibit 1
[3] Maldonado v. Canada (M.E.I.),[1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
[4] Exhibit 2.1
[5] Exhibit 3, NDP on Mexico (29 September 2023)., Tab 7.32, at p.5-6
[6] Exhibit 3, NDP on Mexico (29 September 2023)., Tab 10.2, at p. 1-11.
[7] Ibid., Tab 10.2, at p. 3.
[8] Ibid., Tab 10.2, at p. 3.
[9] lbid., Tab 1.2, at p.1.
[10] Exhibit 3, NDP on Mexico (29 September 2023).
[11] Exhibit 3, NDP on Mexico (29 September 2023).,Tab 7.8, at p. 11.