2024 RLLR 124

Citation: 2024 RLLR 124
Tribunal: Refugee Protection Division
Date of Decision: April 18, 2024
Panel: Mewded Mengesha
Counsel for the Claimant(s): Vilma Filici
Country: Mexico
RPD Number: TC2-24156
Associated RPD Number(s): TC2-24159, TC2-24160
ATIP Number: A-2025-00724
ATIP Pages: 24–34

REASONS FOR DECISION

[1] These are the reasons for the decision of the Refugee Protection Division in the claim for refugee protection made by XXXX (the principal claimant also referred as PC), his spouse XXXX (the associate claimant also referred as AC), and their minor child, XXXX (the minor claimant) who allege to be citizens of Mexico and are seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

[2] The principal claimant acted as designated representative of the minor claimant.

ALLEGATIONS

[3] The claimants’ allegations are set out in full in their Basis of Claim (BOC) forms[2], amended narrative[3], and during the testimony provided at the hearing. In summary, the claimants allege a fear of risk to their life in Mexico at the hands of members of the Gulf Cartel as well as XXXX in Nuevo Leon. The principal claimant has been a victim of repeated and escalating attacks and threats against his safety in Mexico due to his refusal to collaborate in corruption and illegal acts as XXXX in Neovo Leon, Mexico.

DETERMINATION

[4] I find that the claimants have established, on a balance of probabilities, that they face a risk to life and a risk of cruel and unusual treatment or punishment in Mexico. I find that the claimants are persons in need of protection pursuant to section 97(1) of the IRPA.

ANALYSIS

Identity

[5] The claimants’ personal and national identities are established, on a balance of probabilities, by their testimony and the copies of their Mexican passports and other corroborating documents on file.[4]

Nexus

[6] I find that the allegations made by the claimants are criminal in nature, and criminal acts do not generally establish a nexus to a Convention ground. The claimants were not targeted based on one of the five grounds enumerated in the Convention refugee definition: race, religion, nationality, political opinion, or membership in a particular social group. Counsel for the claimants also conceded that the claim falls within Section 97 (1) of IRPA.

[7] Accordingly, I have analyzed the claimants’ risk of harm under section 97(1) of the IRPA.

Credibility

[8] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true. This presumption holds unless there are reasons to doubt the credibility of the claimant’s testimony.[5]

[9] I have found the claimants to be credible witnesses and therefore believe what they have alleged in this claim. The PC testified in a straightforward manner and there were no material inconsistencies or omissions in his testimony that have not been satisfactorily explained. PC testified in detail that since XXXX 2014, he has been working as a XXXX and seen illicit activities by the XXXX colluding with XXXX He further explained that he refused to be engaged in illicit activities or cooperate with members of the cartel XXXX to smuggle drugs, phones, and women into XXXX He also explained that one of the leaders of the Gulf cartel in Nuevo Leon, also known as “XXXX” was an XXXX in the PC’s XXXX and this person made threat against PC’s life for XXXX after he XXXX following a XXXX on, XXXX. He explained that his supervisors had a deal with XXXX to let drugs and illegal goods XXXX by accepting commissions.

[10] He also explained about the threat he received from two XXXX who explicitly told him to work with them or he would not see his son grow up if he did not shut his mouth. PC added that the XXXX also mentioned personal information about his family and told him that the camera he set up at home would not help. PC also explained the steps he took to protect his family which ultimately led to them fleeing the country in search of safety. I found the principal claimant made no obvious attempts to embellish his claim. There were no significant inconsistencies, contradictions, or omissions between the oral and written evidence that went to the heart of the claim.

[11] Furthermore, the fundamental allegations in the Basis of Claim forms were supported through the submission of documents[6] in the disclosure of the claimants, namely: various certificates and XXXX to show that PC has a training at a XXXX screenshots of home surveillance camera; witness letters from family and neighbours collaborating the allegations of threats the claimants received as well as a few News articles. I detect no reason to question the authenticity of the documents, and they are probative. The documents substantiate the principal claimant’s claim that he has been a target of threats by a criminal cartel group and corrupt XXXX and there is an ongoing interest in the claimants by the agents of harm and the risk they face if they were to return to Mexico. I place significant weight on these documents, and I find that they corroborate all their claims.

[12] In consideration of their credible testimony and the significant amount of corroborating evidence provided, I find the claimants to be credible overall and therefore, find their allegations to be credible, on a balance of probabilities.

[13] I find that the Claimants have established the central aspects of their claim, that there is a risk to their lives from Gulf cartel and XXXX as they were harassments and threats, on a balance of probabilities, as alleged.

Risk of Harm

[14] In order to establish the claimants are persons in need of protection under subsection 97(1)(b), they must show that they would be subjected personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment which is not faced generally by others in Mexico. To determine this, I conducted my analysis according to the IRB jurisprudential guide[7] in which the Refugee appeal Division (RAD) laid a framework of analysis:[8]

First Stage: Determine the risk faced by the claimant.

  • Clearly identify the nature of any ongoing or future risk.
  • Clearly identify the basis (or initial reason) for the risk.
  • Clearly identify the degree of the risk (or proximity to the risk). Consider any relevant factor, such as:
    • The severity and number of incidents; and
    • Any pattern or link between the incidents; and
    • Any change over time.

Second Stage: Determine whether the risk is faced generally by others.

  • Compare the nature and degree of the risk faced by the claimant with the nature and degree of the risk faced generally by other individuals in or from their country.

[15] In following the above framework of analysis, I determined that the claimants have been victims of harassment and threats at the hands of members of the Gulf cartel as well as PC’s XXXX. I have further found that the agents of harm pursued the claimants in an effort to intimidate and seek retaliation for refusing to collaborate and going against their warning by evading them. I therefore find that the claimants have been personally targeted by the cartel, and they face a risk of death if they were to return to Mexico.

[16] The claimants’ risk is different, distinguishable in degree and nature from the risk of criminality faced generally by people in Mexico. While threats of violence, extortion, assaults, and other forms of criminality are widespread in Mexico, the claimants have testified, and I have accepted as fact, that Gulf cartel targeted PC and his family specifically to force him work with in their criminal network and be an accomplice for their illicit activity at his workplace. The threats escalated due to his refusal and continued to be targeted because of his knowledge of the criminals’ dealings with XXXX that allowed drugs and other illegal goods XXXX for commission. I find that the risk to the claimants from the criminal cartels is not a risk faced generally by individuals in Mexico. There is a history of continued attacks and threats the claimants experienced from members of CJNG. The claimants were threatened repeatedly through various means, and there was an attempt to locate them even after they had left for Canada. Therefore, in these circumstances, I find that the risk to the claimants is particularized to them and not a risk faced generally by those in Mexico.

[17] Therefore, I find that the claimants have established, on a balance of probabilities, that they face a personalized risk to their lives or risk of cruel and unusual treatment that is not generally faced by others in Mexico.

[18] Based on the credibility of the claimant’s allegations, and the objective documentary evidence set out below, I find that the claimants have established, on a balance of probabilities, that if they return to Mexico, they will be subjected to violence at the hands of the criminal cartel groups.

[19] According to the National Documentation Package, the Gulf Cartel was one of the top four dominant drug trafficking organizations in Mexico.[9] Analysts report that many of the large cartels have fragmented since 2008, including the Gulf Cartel. In 2010, the Gulf Cartel’s enforcement arm split off and formed to create the Los Zetas, which then turned into the Gulf Cartel. The Gulf Cartel has split into many different factions and formed alliances in some states with the CJNG.[10] Moreover, the objective evidence indicates that the cartels generally are more entrenched than ever. The objective evidence supports the claimant’s allegations that he was targeted by the Gulf Cartel in his Nuevo Leon.

[20] The Freedom House report details how official corruption remains a serious problem, despite Mexico’s relatively comprehensive anti corruption framework, implementation of existing mechanism is lacking in practice and high level of impunity persists.[11] This report also states that Mexican prisons remain highly unsafe, with inmates commonly engaging in criminal activity while incarcerated, which XXXX[12]

[21] In addition, the objective evidence indicates that the Gulf Cartel and other criminal organizations in Mexico are motivated to track certain individuals due to “personal vengeance; perceived betrayal; cooperation with authorities as informants or collaborative witnesses”.[13]

[22] When I consider the country condition evidence in relation to the claimants’ profile, who have been targeted by criminal cartels on multiple occasions, I find that the claimants have established on a balance of probabilities that they will continue to be targeted by the agents of harm for reasons that include refusing to cooperate and defying the warnings of the criminal cartel group on multiple occasions. Therefore, I find that the claimants have established, on a balance of probabilities, that they face a personalized risk to their life that is not generally faced by others in Mexico.

[23] Based on the claimants’ credible allegations, the documentary evidence, and my review of the totality of the evidence, I find that the claimants have established, on a balance of probabilities, that if they return to Mexico, they will be personally subjected to a risk to their lives at the hands of the agents of harm.

State Protection

[24] I find that the documentary evidence establishes that there is a lack of adequate state protection in Mexico for the claimants in their circumstances, in the IFA location, and anywhere in Mexico.

[25] States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens.[14] A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.

[26] In the present case, the principal claimant testified that he was part of a XXXX and witnessed XXXX deeply involved in corruption with criminals. There was an escalation of the threats against PC and his family due to his knowledge of illegal dealings and fears of complicity between the cartels and law enforcement and believe he will not be adequately protected because of the widespread corruption among the police force in Mexico. They often work with/for the criminal groups; this is corroborated by objective documentation.[15] According to the documentary evidence, criminal cartel groups have infiltrated police departments and their information networks, as well as state governments in many states in Mexico.[16]

[27] Sources report that “80 percent of police forces are [translation] ‘controlled’ by criminals or ‘almost 60 or 70 percent’ are ‘corrupted’ by organized crime.”[17] The objective evidence further states that crimes are not adequately investigated and that there is a relatively low number of criminal convictions that take place in Mexico.[18] Tab 5.2 of the NDP indicates that impunity remains high in Mexico – according to one survey, 92% of crimes committed in Mexico are not reported or investigated.[19]

[28] Based on the claimants’ personal circumstances, as well as the documentary evidence cited above, I find, on a balance of probabilities, that adequate state protection would not be available to the claimants in Mexico. I therefore find that the claimants have rebutted the presumption of state protection with clear and convincing evidence.

No Viable Internal Flight Alternative

[29] I considered if there is a safe and reasonable internal flight alternative (IFA) for the claimants in Cabo San Lucas or Merida.

[30] For a refugee claim to succeed, the claimants must establish that there is nowhere safe or reasonable to go within their country of nationality. If there is a reasonable safe harbour in their country, then there is no need for surrogate protection and the claim must fail.[20] In determining whether an internal flight alternative exists in a particular case, the panel must apply the two-prong test set out in the jurisprudence.[21] First, it must find that the claimant would be safe in the proposed IFA location. Secondly, the panel must find that it would be reasonable to expect the claimant to relocate there. Both prongs must be satisfied to find that a claimant has a viable IFA. Once an IFA is raised by the Board, the burden in establishing the non viability of an IFA lies with the claimant.

[31] I find that both proposed IFAs fail on the first prong of the applicable test, which requires that I be satisfied, on a balance of probabilities, that the claimants would be safe from the likelihood of harm in those locations.

[32] The claimants have established, on a balance of probabilities, that the agents of harm have the motivation to continue pursuing them if they were to return to Mexico.

[33] The principal claimant has been targeted by the Gulf cartel for his refusal to cooperate in their illegal dealing as a XXXX in Nuevo Leon. He witnessed illicit activities by XXXX and XXXX of XXXX NDP evidence indicated that municipal and state police are always in danger of witnessing illicit activities, that they should not have seen or in danger because they resist directives from local criminal groups to force them look the other way or pass along information about investigation or patrol patterns.[22]

[34] The freedom house report referred above states that official corruption remains a serious problem in Mexico. The documentary evidence also states that when an individual possesses too much knowledge about the group’s operations, the group may invest resources in tracking the target.[23]

[35] The claimants testified that their family members in Mexico continue to be threatened by the cartel due to their association with the claimants, and if they were to return to Mexico, they would more likely than not be targeted by members of the cartel. According to the documentary evidence, criminal cartels have the capacity to commit violent acts against any person in the country.[24] The cartels are motivated to seek PC out as he possesses important information that would incriminate the cartel and XXXX if exposed. The NDP indicates that these are a common motivator for the cartel to track and retaliate against individuals, and “the more personal the feud, the higher the possibility of retaliation” from the cartel.[25]The objective evidence cited above indicates that these are reasons the cartel uses to teach people a lesson.[26]

[36] I find that since the claimants have been repeatedly targeted and threatened on multiple occasions in Mexico, and since the cartel continues to threaten their family members in Mexico even after their arrival in Canada, this demonstrates, on a balance of probabilities, that the cartel would be motivated to pursue the claimants throughout Mexico.

[37] I also find on the balance of probabilities that the Gulf Cartel has alliances with other cartels to allow them to pursue the claimants anywhere in Mexico. Therefore, I find the Gulf Cartel has both the means and the motivation to pursue the claimants everywhere in Mexico and they do not have a viable IFA.

[38] Based on the evidence of the claimants’ personal circumstances as well as the documentary evidence available for Mexico, I find, on a balance of probabilities, that the claimants face a personalized and prospective risk to their lives, or a risk of cruel and unusual treatment or punishment in every part of Mexico, and no internal flight alternative is available to them.

CONCLUSION

[39] Based on the evidence presented by the claimants in this case, I find that the claimants are persons in need of protection pursuant to subsection 97(1) of IRPA. Their claims are accepted.

——— REASONS CONCLUDED ———

[1] Immigration and Refugee Protection Act, S. C. 2001. c. 27

[2] Exhibits 2.1 to 2.3.

[3] Exhibit 5.

[4] Exhibit 1 and Exhibit 5.

[5] Maldonado v. Canada (Minister of Employment and Immigration), 1980 2 FC 302 (CA).

[6] Exhibit 5.

[7] Jurisprudential guide, TC1-05038, August 30, 2021.

[8] Ibid, at paragraph 23.

[9] National Documentation Package, Mexico, 29 February 2024, NDP Mexico, tab 7.2 and tab 7.36.

[10] Ibid.

[11] Ibid, item 2.8.

[12] Ibid.

[13] Ibid, tab 7.8: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and

cartel groups active in these cities (as well as Yucatán state, State of Campeche, and Baja California Sur); the ability

and motivation of organized … Immigration and Refugee Board of Canada. 8 September 2021. MEX200732.E.

[14] Canada (Attorney General) v. Ward [1993] 2 SCR 689.

[15] Exhibit 3, NDP Mexico, tab 7.2: Mexico: Organized Crime and Drug Trafficking Organizations. United States. Congressional Research Service. June S. Beittel. 7 June 2022. R41576.

[16] Ibid, tab 7.4: OSAC Country Security Report. Mexico. United States. Overseas Security Advisory Council. 15 June 2022.

[17] Ibid, tab 7.8: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatán state, State of Campeche, and Baja California Sur); the ability and motivation of organized … Immigration and Refugee Board of Canada. 8 September 2021. MEX200732.E.

[18] Ibid, tab 2.1: Mexico. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.

[19] Ibid, tab 5.2: Mexico. Social Institutions and Gender Index 2019. Organization for Economic Co-operation and Development. 7 December 2018.

[20] Thirunavukkarasu v. Canada (MEI), 1993 CanLII 3011 (FCA).

[21] Rasaratnam v. Canada (ME.I.), 1993 CanLII 3011 (FCA), [1994] 1 FC 589.

[22] NDP Mexico, item 3.3.

[23] Ibid, item 3.3 and item 7.8.

[24] Ibid.

[25] Ibid, tab 7.32.

[26] Ibid..