2024 RLLR 116

Citation: 2024 RLLR 116
Tribunal: Refugee Protection Division
Date of Decision: January 12, 2024
Panel: Avril Cardoso
Counsel for the Claimant(s): Clement Osawe
Country: Mexico
RPD Number: TC2-18283
Associated RPD Number(s): TC2-18287
ATIP Number: A-2025-00611
ATIP Pages: 66–78

REASONS FOR DECISION

[1] XXXX (the “principal claimant”) and XXXX (the “associate claimant”) claim to be citizens of Mexico and seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

ALLEGATIONS

[2] The claimants’ allegations are set out in their Basis of Claim forms (BOC).[2] In summary, the claimants allege that they are common-law partners and after threats from the Cartel Jalisco Nueva Generación (CJNG), they left their country and seek Canada’s protection.

DETERMINATION

[3] I find that the principal claimant is a Convention refugee pursuant to section 96 of the IRPA based on the particular social group of women fearing gender based violence.

[4] I find on a balance of probabilities that the associate claimant faces a risk to life or risk of cruel and unusual punishment or treatment if he were to return to Mexico. I find that the associate claimant is a person in need of protection under s. 97 (1)(b) of the IRPA.

ANALYSIS

Minister’s Intervention

[5] The Minister intervened in these claims through written submissions and evidence about the issue of credibility.[3] The Minister submitted that the claimants were not forthcoming about their marital status because of discrepancies between their refugee intake documents and their electronic travel authorization application (eTA). In the eTA, both claimants list their marital status as single. In the refugee forms, the claimants list their marital status as common law or married.

Identity

[6] The claimants’ personal and national identities are established on a balance of probabilities by their passports.[4]

Nexus

[7] I find that the associate claimant does not have a nexus to the Convention. He alleges fear because of risk to his life by criminal organizations, specifically the CJNG.

[8] Jurisprudence has established that victims of crime generally cannot establish a link between fear of persecution and Convention reasons.[5] The associate claimant alleges risk to his life from the CJNG because he refused to provide them with information related to his work at the XXXX His claim is therefore assessed under s. 97.

Credibility

Marital status inconsistencies are minor

[9] In their BOC narrative, the claimants describe their relationship as spouses. In a statutory declaration, the claimants declared that they have been in a conjugal relationship from XXXX 2016.[6] In their eTA applications, the claimants wrote that they were single.[7] In her record of submission the principal claimant wrote that she was married to the associate claimant from XXXX 2017. The associate claimant wrote that he was in a common-law relationship since XXXX 2016 in his record of submission. I asked the claimants to explain these inconsistencies. The principal claimant testified that since she lacked documentation for a common-law relationship, she wrote single on her eTA. She testified that she has been cohabiting with the associate claimant since XXXX 2017 but they began a relationship in XXXX 2016. I find that the explanation for this inconsistency is reasonably explained. Moreover, the distinction between a common-law and married marital status is minor and cannot reasonably be seen as an attempt to hide their relationship in their refugee claims. In addition, counsel submitted that culturally people may describe their relationships in different ways. Moreover, with marriage there is a specific date and record of this event. Common-law relationships may be more fluid in terms of when this relationship came into being.

Work at dairy for associate claimant is not credible

[10] I asked the associate claimant to explain why the port of entry officer’s notes indicate he was working at a XXXX[8]

[11] He testified that he was nervous and at the time was working in his family business which sold dairy products. I don’t accept that being nervous would likely result in stating a completely different occupation and as the associate claimant indicated that he was hiding prior to coming to Canada, his explanation that he was working at his family’s business is not credible. This detracts from his credibility.

Principal claimant fears gender based cartel violence

[12] I find that the principal claimant was harassed, abducted and assaulted by the CJNG. The testimony she provided was materially consistent with her narrative and other evidence. I did not question her about details of the abduction to conduct a trauma informed hearing and to avoid retraumatization to the extent possible. The principal claimant provided corroborating documents and the content was consistent with her narrative and testimony.

[13] The principal claimant testified that she fears being killed by the CJNG. She said the threats began after her husband left the country. She testified that she commutes by motorcycle and she was followed by vehicles and trucks and believes they are from the CJNG because she was kidnapped on XXXX 2021 by this group. She denies receiving medical treatment after her abduction because she was afraid the doctor would inform the authorities as she was physically and sexually assaulted which triggers a reporting requirement. She said she considered reporting to the police but after discussion with her mother, because it was a delicate issue, and because the cartel has infiltrated the authorities she chose not to do so.

[14] The principal claimant submitted a statement from a witness to some of the threats she experienced. The author wrote about observing the principal claimant on her motorcycle travelling at a very high speed which was unusual and the author then heard that some people had been trying to abduct her. This witness wrote that she heard the sound of skidding tires and went out to see what was happening and saw a group of people forcing their way into the principal claimant’s house and abducting her in a van. He wrote that one of the abductors did not have his face covered and she saw him looking around and became afraid.[9] The principal claimant’s mother submitted a statement in which she wrote that her daughter mostly remained at home after the associate claimant left the country. She wrote about a man who saw a woman lying on the road who resembled the principal claimant and she went and found her daughter injured with her clothes torn and drugged.[10] Another witness wrote that the principal claimant changed overnight and no longer spoke to neighbours but remained locked in her home. This witness wrote that she saw the principal claimant being abducted by heavily armed individuals in a dark blue van after they broke into her home. The witness wrote that a taxi driver saw a woman lying on the roadside who looked like the principal claimant and that the taxi driver pleaded with her mother not to reveal that he had provided this information as the cartel targets informants and gossipers.[11]

The principal claimant’s delay in claiming protection is reasonable

[15] After the principal claimant arrived in Canada, there was a XXXX month delay in seeking protection. When asked for an explanation, she said that they began researching options and then started the claim. She said her eTA remained valid during this period. Counsel submitted that the claimants’ obtained their Legal Aid Certificate on XXXX or XXXX 2022. I find that the delay is minimal for the principal claimant as she arrived on XXXX 2021 and initiated work on her claim in January 2022 about XXXX weeks later. There is no adverse impact to her credibility.

Associate claimant delay

[16] The associate claimant resided in Canada from XXXX 2019 until he claimed protection with the associate claimant in January 2022 some two years and XXXX months later. He testified that he did not intend to remain in Canada, it was temporary. He admitted he was without status after the expiration of his eTA. He cited difficulties in integrating into Canadian society and language barriers as reasons he did not take steps to regularize his immigration status.

[17] While subjective fear is not relevant in the s.97 risk analysis, remaining in Canada without legal status is a credibility concern. The associate claimant is well educated and it is reasonable to expect that he would have taken some steps to explore options to remain legally in Canada. This detracts from his credibility.

Associate claimant – s.97 nature of risk

[18] I find that the associate claimant was employed at XXXX as alleged. He testified that he has an XXXX He submitted a copy of his degree.[12] He said he worked at the XXXX in Zacatecas state since XXXX or XXXX 2018. An article submitted corroborates the existence of a XXXX in Zacatecas.[13] When I asked why he wrote XXXX 2018 as the start date in his record of submission, he said he was not sure of the start date. He said he found the job through a friend. He provided testimony about the hiring and interview process and his friend’s name. He testified about where he stayed while working at this organization and said it was more than fifteen hours from his hometown. When asked why this address in Zacatecas was not in his address history, he said he did not consider it as his address as he was working in this location. The associate claimant testified about his duties first as a handler and then as a security assistant.

[19] I find that the associate claimant was threatened on multiple occasions by the CJNG. He described the contacts and explained why he believed they were part of the CJNG. He said this cartel had a strong presence in this area. He said he tried to leave work earlier to avoid them but they knew where he lived. The associate claimant testified that the threats escalated from offers, threats and then to violence. He testified that he was kidnapped by the CJNG close to his room and then taken by truck to a rural area. He said he sustained injuries to his knee and back. I asked why he only mentions a head injury in his narrative and he said he was hit on his head many times. He said he was released close to the location where he was abducted. The associate claimant testified that after this incident he felt he had no choice but to leave the job and he resigned verbally because he was afraid to provide the real reason. He said this was a very good position, one that he had wanted because of his education. The associate claimant submitted a statement from a person he stayed with after his return to his home state as well as his ID card from XXXX[14]

Associate claimant credibility conclusion

[20] There are credibility concerns with the inconsistency about work during the POE interview and the delay in claiming protection. However the associate claimant has credibly established the threats from the CJNG which is the central issue in his claim and I give more weight to this evidence about core issues in his claim. The credibility concerns relate to more peripheral issues.

[21] The claimant was personally and specifically targeted for death on multiple occasions because of his work at XXXX and access to information sought by the CJNG to further their illicit activities. The risk became elevated in frequency and degree of violence after the associate claimant refused to co-operate with the CJNG operatives. He testified there were initially offers which then escalated to threats and then led to abduction and assault. I find, on a balance of probabilities, that he is personally subjected to an ongoing risk to life.

Objective evidence re s.97 risk

[22] The objective evidence confirms the associate claimant’s experience with extortion and violence perpetrated by the CJNG because of his employment at XXXX in Zacatecas.

[23] The CJNG is one of the most powerful transnational criminal organizations (TCO). CJNG is an organized criminal security threat unlike other experienced before. It is known for its brutality and violence, social media savvy and quasi-military tactics.[15]

[24] CJNG is considered an extremely powerful cartel with a presence in 27 of 32 Mexican states in 2020. Its reputation for extreme and intimidating violence continues.[16] CJNG is the dominant actor in Puebla and human smuggling is among its criminal activities.[17] Consequences of refusal to cooperate include murder, violence and/or intimidation.[18]

[25] An article submitted by counsel states that the CJNG has a presence in Zacatecas because of its geographical location.[19] Another article writes that managers and workers in the Zacatecas area are often extorted by gangs in addition to the kidnapping of employees.[20]

Generalized or Particularized risk

[26] I find that others are not generally in the same position as the associate claimant. The general population does not face a risk to life by failing to comply with the demands of the CJNG cartel. The associate claimant has been personally targeted and threatened with death in a series of incidents which escalated in severity.

[27] I therefore find that the associate claimant has established the objective basis of his claim and has established a personalized risk to life that is not generally faced by the population of his country. The associate claimant testified that there were many workers at XXXX yet the CJNG targeted him specifically and repeatedly.

Forward risk

[28] The associate claimant testified that he would continue to be targeted if he returned as the CJNG has a national presence. He cited evidence of a neighbour being killed because he refused to work with this cartel. The objective evidence supports that the profile of the associate claimant is such that he faces a prospective risk.

Well-Founded Fear of Persecution (principal claimant)

[29] Amnesty International reports rates of feminicides of 2.5 killings per day. Structural violence against women continued to undermine women’s rights to live a life free of violence and in a safe environment without fear.[21]

[30] Gender based violence is common in Mexico. The government has made efforts to overcome the general climate of violence and protect women’s rights. Women have been protesting ideas that they have somehow provoked the violence they experience.[22]

[31] Despite alarming statistics documenting femicides, the federal government has made it clear that femicides are not a priority on its national agenda. The increasing level of arbitrary violence is symptomatic of the fact that abusers are often granted impunity by Mexico’s judicial system.[23]

State Protection

[32] There is a presumption that the state can protect its citizens except in situations where it is in complete breakdown. This presumption can be rebutted with clear and convincing evidence.

[33] The U.S. Department of State report writes that serious government corruption and insufficient accountability for gender based violence are among serious human rights issues. Impunity and extremely low rates of prosecution remained a problem for all crimes, including human rights abuses and corruption. There were reports some government agents were complicit with international criminal gangs, and prosecution and conviction rates were low for these abuses. Criminal elements, including local and transnational gangs and narcotics traffickers, were significant perpetrators of violent crimes and committed acts of homicide, torture, kidnapping, extortion, human trafficking, bribery, intimidation, and other threats, resulting in high levels of violence and exploitation. The government investigated and prosecuted some of these crimes, but the majority remained uninvestigated and unprosecuted. [24]

[34] According to Freedom in the World, Mexico suffers from severe rule of law deficits that limit full citizen enjoyment of political rights and civil liberties. Violence perpetrated by organized criminals, corruption among government officials, human rights a buses by both state and nonstate actors, and rampant impunity are among the most visible of Mexico’s many governance challenges. Organized crime and related violence have limited the effective governing authority of elected officials in some areas of the country, as well as of the federal government. Mexico’s justice system is plagued by delays, unpredictability, and corruption, which often lead to impunity for perpetrators of crimes.[25]

[35] The claimants have rebutted the presumption of state protection with clear and convincing evidence to demonstrate that state protection would not be reasonably forthcoming.

Internal Flight Alternative

[36] I proposed Merida (Yucatan state) or Campeche (Campeche state) as possible locations within Mexico where the claimants could relocate.

[37] To determine whether a viable IFA exists, I must consider a two-pronged test. Under the first prong, I must be satisfied that on a balance of probabilities, the claimant would not face a serious possibility of persecution or risk to their lives or of cruel and unusual treatment or punishment in the part of the country where there is an IFA. And, secondly, the IFA must be such that it would not be objectively unreasonable or unduly harsh in all the circumstances for the claimant to relocate[26]. Once the issue is raised, the burden of proof rests on the claimant[27].

The first prong of the IFA test is not met (safety)

The agent of persecution has the means to locate the claimants

[38] Organized crime groups use family and friends, communications networks, police and government databases to track individuals.[28]

[39] Sources indicate that CJNG is embroiled in a patchwork of rivalries nationwide and exists in the majority of Mexican states.[29] It is reported that CJNG has what it needs in terms of technological and weapons capabilities to reach whoever they want, wherever they want. They have many resources at their disposal to do so, even outside Mexico. They leverage this ability to locate individuals who move to another region through community intelligence including allied gangs or informants. The monitoring infrastructure of criminal groups in Mexico including the CJNG is pervasive and routine across the country’s highways, seaports and airports. Campeche may be a temporary refuge but the CJNG can track someone down within a year. Campeche is made up of small villages and its capital city is very small and so it is not an easy place to keep a low profile. The CJNG targets women who refuse their advances and individuals who have testified against the CJNG. [30]

[40] Corrupt Mexican officials have helped drug cartels to obtain spyware which can be used to hack mobile phones. There are reports of girls being abducted by cartels for the purposes of trafficking. To avoid traffickers, some families are resorting to extreme measures. Some women hide in secret shelters and homes as an example.[31]

[41] Mexicans face the risk of violence from various sources, such as individual criminals and criminal gangs that operate with impunity. For individuals targeted by criminal groups, relocating within Mexico “is next to impossible” as the presence of organized crime groups is extensive and found in every state. Methods of tracking include systems of local surveillance, street-level informants and word of mouth.[32]

Motivation – ongoing interest in the claimants

[42] None of the supporting documents mention any ongoing interest in the claimants. A report from the Board writes that the ports of entry including airports and land borders are strategic locations for the CJNG’ s criminal activities and the group places lookouts there, such as police officers, soldiers, cartel members and port employees who report back to the CJNG about who or what has arrived. It is also reported that the CJNG controls many major highways in Mexico where they install roadblocks and checkpoints to commuters, verify their IDs, identify potential rivals,” and impose extortion payments. It is also noted that due to the changing criminal dynamics in Mexico there is no guarantee that zones currently considered safe are likely to remain so. This source reports that the CJNG relies on fear-based control and intimidation to neutralize or coopt local community organizers to prevent communities including those supported by other criminal groups or militias from rising against the CJNG.[33].

[43] I find that the first prong of the IFA test is met. The agent of persecution has established the means and motivation to locate the claimants and an IFA is not available to them. They were targeted in two different states quite far apart. The CJNG has a national reach and there is evidence that it instills fear in those it targets. Letters of support indicate that the authors are concerned if they are witnesses or assist those being targeted. This indicates an ongoing means and motivation of the agent of persecution.

[44] As the test is conjunctive and the first prong is not met, it is unnecessary to consider the second prong. I find that there is a serious possibility of persecution throughout Mexico for the principal claimant. I further find on a balance of probabilities that the associate claimant faces a risk to life or risk of cruel and unusual punishment or treatment throughout Mexico. A viable IFA is unavailable to the claimants.

CONCLUSION

[45] Having considered all the evidence, I find there is a serious possibility that the principal claimant would face persecution in Mexico. I find that the principal claimant is a Convention refugee and I accept her claim.

[46] I find that the associate claimant faces a risk to life or risk of cruel and unusual punishment or treatment and is a person in need of protection. I accept his claim.

——— REASONS CONCLUDED ———

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

[2] Exhibits 2.1 and 2.2.

[3] Exhibit 1.

[4] Exhibit 4.

[5] Kang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1128 at para. 10.

[6] Exhibit 5, p. 1.

[7] Exhibit 4, M-1, Xl3, p. 3 and M1, X4, p. 3.

[8] Exhibit 4, M-1, Xl6, p. 6.

[9] Exhibit 6, p. 36.

[10] Exhibit 6, p. 41.

[11] Exhibit 6, p. 43.

[12] Exhibit 6, p. 27.

[13] Exhibit 6, p. 55.

[14] Exhibit 6, p. 34, 47.

[15] Exhibit 11, p. 24.

[16] Exhibit 3, National Documentation Package (NDP) on Mexico (September 29, 2023), Item 7.2 at p. 37.

[17] Exhibit 3, NationalDocumentation Package (NDP) on Mexico (September 29, 2023), Item 7.7 at pp. 3 and 5.

[18] Exhibit 3, National Documentation Package (NDP) on Mexico (September 29, 2023), Item 7.48 at p. 4.

[19] Exhibit 6, p. 49.

[20] Exhibit 6, p. 57.

[21] Exhibit 3, National Documentation Package (NDP) on Mexico (September 29, 2023), Item 2.2 at p. 2.

[22] Exhibit 3, National Documentation Package (NDP) on Mexico (September 29, 2023), Item 5.10, pp. 1, 5.

[23] Exhibit 3, National Documentation Package (NDP) on Mexico (September 29, 2023), Item 5.6, pp. 1, 2

[24] Exhibit 3, National Documentation Package (NDP) on Mexico (September 29, 2023), Item 2.1 at p. 2.

[25] Exhibit 3, NationalDocumentationPackage (NDP) on Mexico (September 29, 2023), Item 2.8 at pp. 2, 8, 14.

[26] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710.

[27] Chauhdry, Mukhtar Ahmed v. M.C.I. F.C.T.D. no. IMM3951-97, August 17, 1998.

[28] Exhibit 3, National Documentation Package (NDP) on Mexico (September 29, 2023 ), Item 7.48 at p. 6.

[29] Exhibit 3, National Documentation Package (NDP) on Mexico (September 29, 2023), Item 7.7 at p. 1.

[30] Exhibit 3, NationalDocumentation Package (NDP) on Mexico (September 29, 2023 ), Item 7.7 at pp. 10, 13.

[31] Exhibit 11, pp. 10, 54.

[32] Exhibit 3, National Documentation Package (NDP) on Mexico (September 29, 2023), Item 7.53 at pp. 1, 2.

[33] Exhibit 3, NationalDocumentation Package (NDP) on Mexico (September 29, 2023), Item 7.7 at pp. 3, 4, 8.