2024 RLLR 129

Citation: 2024 RLLR 129
Tribunal: Refugee Protection Division
Date of Decision: September 19, 2024
Panel: Lindsay Trevelyan
Counsel for the Claimant(s): Alfonso Mejia Arias
Country: Mexico
RPD Number: TC2-37989
Associated RPD Number(s): N/A
ATIP Number: #
ATIP Pages:

DECISION

[1] MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX XXXX, the claimant, who is a citizen of Mexico, and is seeking refugee protection, pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. In coming to my decision, I have considered and applied the Chairperson’s Guideline 4, Gender Considerations in Proceedings Before the Immigration and Refugee Board, the Gender Guidelines.

[2] The details of the claimant’s allegations are fully set out in her Basis of Claim form and were supplemented by her oral testimony found at Exhibit 2. In summary, the claimant fears persecution from her ex-common-law spouse, XXXX XXXX XXXX (ph), with whom she has two (2) children. The history of abuse and violence is long standing and continued until 2018, despite attempts to leave him and over an eight (8) year period of his incarceration for murder. XXXXwas also affiliated with La Union, a criminal organization prevalent in Mexico City. The claimant came to Canada in XXXX 2020 and made an asylum claim in January of 2022.

[3] Given the delay in claiming and the two (2) extension requests made by the claimant, the Minister intervened on the issue of credibility and delay at Exhibit 5.

[4] I find that the claimant is a Convention refugee, pursuant to section 96 of the IRPA, as a member of a particular social group, being a woman facing gender-based violence.

[5] The claimant’s personal and national identity of Mexico is established by sworn statements in her BOC and the certified copy of her Mexican passport contained in the evidence at Exhibit 1.

[6] The Federal Court has held in Maldonado that when a claimant swears the truth of certain allegations, it creates a presumption that those allegations are true unless there is a reason to doubt her truthfulness.

[7] I found the claimant to have been at all times credible. Her testimony was unwavering, clear, and spontaneous, and there were no inconsistencies, contradictions, or omissions in her evidence.

[8] This is also true with respect to her testimony about her delay in claiming. She testified she did not claim sooner because of ignorance, and that she did not have the funds for representation. She did not know she could claim asylum until encouraged to do so by friends in Canada and her brother.

[9] I accept her explanation as reasonable, and I draw no negative inference from her delay, and find that she has established her subjective fear.

[10] The claimant provided corroborative evidence, which I rely on also.

[11] She provided a copy of XXXXsentencing, letters of support corroborating the history of abuse in her relationship from her father, her daughter, her brother, and friends, and images of her bruised body and injuries sustained by her spouse. All of these are contained at Exhibit 6.

[12] I have no reason to doubt the authenticity of these documents, and I give them full weight.

[13] I find the claimant has established, on a balance of probabilities, that she had been in a long-term abusive domestic relationship, and that despite attempts to leave him and relocate in Mexico, he found her, and the abuse continued. I find the claimant has established a subjective fear of returning to Mexico.

[14] I find the claimant’s subjective fear of XXXX, a member of La Union, is objectively well-founded.

[15] According to InSight Crime, La Union is one of Mexico City’s main criminal organizations, “funding itself from micro trafficking, human trafficking, and extortion.” This is at Exhibit 3, Item 7.39.

[16] It has to contend with the increasing presence of — in Mexico City of the Cartel Jalisco New Generation, and the Sinaloa Cartel. This is the item at 7.39 in Exhibit 3.

[17] Due to increased targeting by law enforcement, La Union is no longer a single hierarchical organization, but a series of connected cells, each with its own leader, territory, and particular criminal activity. Media reports suggest there are now at least five (5) major factions within many more smaller cells. And that, again, is at Item 7.39.

[18] InSight Crime reports that they are a highly localized group in Mexico City but maintains lower scale operations in surrounding states such as Hidalgo, Tlaxcala, Puebla, Veracruz, and the State of Mexico. So, that also at Item 7.39 of Exhibit 3.

[19] In addition, the objective evidence demonstrates that gender-based violence is prevalent in Mexico. The most recent BTI index for 2022 states that, according to United Nations, six (6) out of 10 women in Mexico have been victims of violence, and many organizations have been called for femicide emergency to be declared. (inaudible) Exhibit 3, Item 1.10.

[20] The Annual Amnesty International Report of the State of World Human Rights states that between January and November 2022, 3,450 women were reported to have been killed, 858 of which were investigated –femicides. This is at Exhibit 3, Item 2.2.

[21] The same source indicates that the states with the largest reported femicides were Mexico State, Nuevo Leon, and Mexico City. So, the same source.

[22] The larger numbers of incidents of gender-based violence is also reported by Human Rights Watch at Exhibit 3, Item 2.3.

[23] Regarding the connection between femicides and cartels, Item 5.20 at Exhibit 3 indicates that gang members perceive their female intimate partners as, “property who are not free to leave the relationship when they want.”

[24] The objective evidence therefore corroborates the claimant’s subjective fear.

[25] There is a presumption of state protection unless there is clear and convincing evidence that state protection is inadequate or non-existent.

[26] According to the objective evidence cited above, there is extensive gender-based violence in Mexico, despite laws enacted that criminalize gender-based violence. Criminal groups were significant perpetrators of homicide, torture, kidnapping and other threats, some of which were investigated but, “the majority remained uninvestigated and unprosecuted.” So, at Exhibit 3, Item 2.1.

[27] (inaudible) reports that violence perpetrated by organized criminals, corruption among government officials, and rampant impunity are some of Mexico’s biggest problems. Exhibit 3, Item 2.8.

[28] Sources indicate that 60 to 80 percent of police forces are either controlled or corrupted by organized crime, with criminal groups bribing police and judges. Exhibit 3, Item 7.8.

[29] The claimant testified she called the police twice and nothing was done. I find that the — it is objectively unreasonable to presume that state protection would be forthcoming to the claimant, given the high levels of impunity for gender-based violence and the lack of political will to enforce the laws in place. I find that the presumption of state protection has been rebutted.

[30] At the hearing, I identified Merida and La Paz as possible IFA locations.

[31] I find that the claimant has established that XXXXhas both the means and the motivation to locate and harm her in the proposed IFAs. Therefore, the IFAs fail on the first prong of the test, and I need not assess the second prong of the test.

[32] The claimant was located by XXXXin Tlaxcala and Michoacan. He knows where her brother and parents live, who he — she continues to be in contact. She also believes him to have contacts within the police.

[33] The claimant is not required to keep her location from her family members a secret, and XXXXhas sought her out despite her attempts to leave him in the past.

[34] The claimant has also testified that she believed he would easily be able to locate her on the black market.

[35] Counsel for the claimant provided articles indicating that personal information, including the information compiled by the National Electoral Institute, can be bought on the black market. And for this I refer to Exhibit 7.

[36] I find that the claimant has established, on a balance of probabilities, that XXXXhas the means and the motivation to pursue the claimant anywhere in Mexico, given his connections to the cartel, the police, and her family members. I find there is no viable IFA for her in Mexico.

[37] Considering all of the foregoing, I find the claimant is a Convention refugee, and I accept her claim.

——— REASONS CONCLUDED ———