2022 RLLR 59

2022 RLLR 59 Citation: 2022 RLLR 59 Tribunal: Refugee Protection Division Date of Decision: November 21, 2022 Panel: Lesley Mason Counsel for the Claimant(s): Arvin Afzali Country: Mexico RPD Number: TC2-18775 Associated RPD Number(s): TC2-18780 ATIP Number: A-2022-01960 ATIP Pages: N/A REASONS FOR DECISION [1] XXXX (the principle claimant), her common-law husband, XXXX (the associate claimant), and the daughter of the principle claimant, XXXX (the minor claimant), citizens of Mexico, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the IRPA)[1]. Allegations [2] The specifics of the claims are set out in the principle claimant’s Basis of Claim Form (BOC);[2] the following is a summary of her allegations. [3] The principal claimant’s mother, XXXX, worked as a XXXX in the XXXX of the State of Mexico. In 2016 the mother learned that XXXX pesos had been stolen from the judiciary’s bank account and placed in accounts unrelated to the judiciary department. On XXXX, 2016, when XXXX was murdered, the principle claimant’s mother was told by government authorities and the police to keep the situation quiet. On XXXX 2016 the principle claimant’s mother was physically assaulted by two men who identified themselves as members of La Familia Michoacana. The men advised the principle claimant’s mother that the government worked for them. On XXXX 2019 a young man was assassinated in front of the home of the principle claimant’ s mother. Police did not respond when they were called. Months later, while in a car, the principle claimant’ s mother and her partner where shot at which caused the mother to XXXX. The principle claimant’s mother fled to Canada where her claim for refugee protection was accepted on February 2, 2021. [4] After her mother left the country, the principle claimant moved from her mother’s home to the home of an aunt. Beginning in XXXX 2019 the principle claimant became aware of two men appearing in her area. By XXXX 2020, the principle claimant saw the same two men almost everyday. On a few occasions the principle claimant and associate claimant saw one of the two men following them while they were in their car. [5] On XXXX, 2020 the claimants relocated to the home of the principle claimant’s mother because of a family dispute with the principle claimant’s aunt. Shortly thereafter, a neighbour informed the principle claimant that a stranger had been inquiring about her mother. The principle claimant began to notice that she was again being tailed. [6] On XXXX 2020 the principle claimant learned she was pregnant. On XXXX, 2021 the principle claimant was physically assaulted at her home by two men who were looking for her mother. The men threatened to kill the principle claimant if she did not disdose the whereabouts of her mother. As a result of the assault, the principle claimant XXXX. When the associate claimant attempted to report the assault of XXXX, 2021 on the principle claimant, the authorities refused to accept their complaint because the attackers could not be identified. The claimants moved to the home of the associate claimant’s parents. Within a few days, two men began to tail the claimants. On XXXX 2021, while driving in the city of XXXX 40 minutes from home, the claimants were followed. Subsequently, the claimants were directed by a police officer to the office of a lawyer who informed them that he could file a notarized document for them. [7] The claimants arrived in Canada on XXXX, 2022 and made claims for refugee protection on June 21, 2022. Designated Representative [8] The Immigration and Refugee Protection Act requires the designation of a representative for all claimants less than 18 years of age.[3] For the purposes of the claims for refugee protection, in accordance with subsection 167(2) of the IRPA, the RPD appointed the principle claimant to be the Designated Representative for the minor claimant. At the beginning of the hearing, the principle claimant affirmed her willingness to be the Designated Representative for the minor claimant. The hearing [9] The hearing was held by videoconference using Microsoft Teams. DETERMINATION [1O] I find that the principle claimant, XXXX is a person in need of protection pursuant to section 97(1) of the IRPA. ANALYSIS [11] The issues in this claim, as outlined at the beginning of the hearing, are: NexusCredibilityInternal Flight AlternativeIdentity [12] The claimants’ personal identities and country of citizenship have been established, on a balance of probabilities, as per certified true copies of their passports.[4] Nexus [13] Considering section 96 of the IRPA, the principle claimant testified that she fears returning to Mexico because of actions against her and her family of La Familia Michoacana criminal organization. When asked why the cartel members have continued to search for her mother for more than three years, the principle claimant stated that the cartel members want the money that has gone missing. I find persuasive the decision in Bulbarela[5] where the court stated that, “[t]he law is, I believe, settled that neither fear ofreprisals constituting revenge or a personal vendetta, nor fear of criminal acts, constitutes a fear of persecution linked to a Convention ground.” [14] Therefore, I find that the claims have no nexus under section 96 of the IRPA. I have, thus, considered the claims under section 97(1) of the IRPA Credibility Oral Testimony [15] I found the principle claimant testified in a forthright manner. She made no apparent attempts to embellish her claim. I find the principle claimant to be a credible witness and I have identified no material contradictions, inconsistencies, or discrepancies in her telling of her story. Through her testimony the principle claimant provided a detailed account of events in Mexico which caused the claimants to :flee Mexico and seek refugee protection. Through her testimony the principle claimant established the core elements of her claim. Personal Documentary Evidence [16] The claimants provided documentary evidence to support their claims. These include: i) a medical report, issued XXXX 2021, diagnosing the principle claimant’s XXXX caused by a physical assault,[6] ii) a letter from the XXXX issued XXXX 2021, describing the attack upon the principle claimant which XXXX,[7] iii) a letter from the associate claimant’s sister providing information regarding the attack on the principle claimant of XXXX 2021,[8] iv) a letter from the associate claimant’s parents providing information regarding the refusal of Mexican authorities to accept a report of the attack on the principle claimant of XXX 2021,[9] v) a notarized document, issued XXXX 2021 by lawyer XXXX, outlining the tailing of the principle claimant by two unknown persons,[10] and vi) a letter from the XXXX issued XXXX 2021, which outlines the events of 2021 that caused the claimants to flee Mexico[11]. [17] The claimants also provided documentary evidence associated with the claim of the principle claimant’s mother. These include: i) the mother’s BOC,[12] ii) a letter to be served for legal proceedings, dated XXXX 2019, outlining events in the mother’s professional life that subsequently led her to flee Mexico,[13] a medical certificate outlining injuries sustained by the principle claimant’s mother and subsequent hospitalization in XXXX 2017,[14] iii) photographs of the injuries sustained by the mother in XXXX 2016,[15] iv) a letter from the XXXX issued XXXX, 2018, informing the mother of continued personal protection for her and her family,[16] v) the RPD decision accepting the claim of the mother for refugee protection, dated XXXX 2021[17]. [18] I give significant evidentiary weight to the documents provided by the claimants. I find that the claimants’ personal evidence is genuine, reliable, probative and corroborates the allegations of the principle claimant. [19] I find that the principle claimant has established her allegations, on a balance of probabilities, and has credibly established a subjective basis for her fear, her husband’s fear, and the minor claimant’s fear of persecution in Mexico. I have, therefore, considered the objective evidence in this case. Objective Evidence [20] A 2020 InSight Crime report indicates that La Familia Michoacana cartel is very much still active today and partaking in drug trafficking, kidnapping and extortion activities.[18] The report corroborates the notorious ability of the cartel to corrupt government officials due partly to the excessive profits from the cartel’s illegal drug related activities. The objective evidence also indicates that La Familia Michoacana resorts to physical abuse including torture and death to silence those who disclose its involvement in corruption. [21] I am satisfied that the objective evidence provides an objective basis for the claimants’ fear of persecution at the hands of La Familia Michoacana because of their relationship with the principle claimant’s mother. Internal Flight Alternative [22] At the outset of the hearing, I proposed Merida and Campeche as potential IFA locations. The objective evidence indicates that La Familia Michoacana cartel operates in the southwestern region of Mexico,[19] and the IFA locales are outside of the cartel’s area[20]. [23] Internal flight alternative arises when the claimant, who otherwise meets all the elements of the Convention refugee definition, is able to find refuge in a part of his or her country of citizenship where there is nota serious possibility of being persecuted and that that location would not be unreasonable, in all circumstances, including those particular to the claimant, for him or her to seek refuge there. The basis for this two-pronged test is the cases of Rasaratnam[21] and Thirunavukkarasu[22]. The test asks two questions: The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.[23]Conditions in that part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for him or her to seek refuge there.[24][24] Claimants bear the burden of proof to show that they face a serious possibility or reasonable chance of persecution in the entire country and specifically in the potential IFA areas named. First Prong [25] As stated earlier in this decision, the cartel continues to search for the principle claimant’s mother because of a large amount of money that is missing. This testimony is corroborated by the evidence in the mother’s claim for protection. I, thus, find that the agents of persecution are motivated to locate the mother through the principle claimant and her family. [26] Regarding the capacity of the agents of persecution to locate the claimants, the principle claimant argued that the cartel would be able to locate her anywhere in Mexico. She stated that the cartel is connected to other cartels in Mexico, and it utilizes different methods to track individuals throughout the country, even outside their areas of operation. [27] The objective evidence supports the principle claimant’s testimony. One Response to Information Request (RIR)[25] addresses the issue of the ability of cartels to track individuals outside their areas of operation, citing methods used by Los Zetas cartel to establish a network among the Mexican cartels: According to the 2014 Popular Science article, Los Zetas set up a communications network across Mexico using cameras and radios, allowing them to monitor “ever[y ]” aspect of their drug trafficking network, and communicate covertly (Popular Science 25 Mar. 2014). According to a DEA agent quoted by the same source, “‘[i]t essentially linked all the different members of the cartel-the people doing the trafficking and the people doing the protection-so there was a communication between them”‘ (Popular Science 25 Mar. 2014). Sources indicate that this system allowed Los Zetas to monitor drug trafficking within Mexico, into Guatemala (Popular Science 25 Mar. 2014; Wired 27 Dec. 2011) and along the border with the US (Popular Science 25 Mar. 2014). The Popular Science article indicates that the network was used to plan attacks and seize territory held by other groups (Popular Science 25 Mar. 2014). Other sources state that its primary purpose was surveillance (Wired 27 Dec. 2011) or “off the grid” communication (Stratfor 13 Sept. 2011). According to the Popular Science article, the network could be managed remotely, connecting members from different areas to coordinate and communicate about operations (Popular Science 25 Mar. 2014). The article further explains that the cartel uses ground-level informants to gather information.[26] [28] The same RIR states that cartels use family networks and private investigators to track people, as well as property records in the US and Mexico and place GPS trackers on cars (Assistant Professor, May 28, 2019). Similarly, Texas Monthly, a magazine covering issues such as politics, the environment, industry, and education reports that an attorney with ties to drug cartel leaders, who had been providing information to the US government, was located by means including a GPS tracker on his car and cameras in his neighbourhood. The assistant professor stated that a large debt or a personal vendetta could motivate a gang to track someone outside of their area and that gangs can use “corrupt law enforcement agents” to obtain information about people they pursue. Further, in order to extend their influence beyond their areas of operation, cartels rely on the “representation” they have in other areas.[27] [29] Another RIR states that cartels such as La Familia Michoacan and Los Zetas operate on the same basis/foundation for tracking individuals within Mexico.[28] [30] A further RIR states that if a criminal group has a very strong motivation to find and retaliate against a certain person, especially if the criminal group were one of the more powerful groups in Mexico, then the ability to track or retaliate against a certain person would be a reasonable concern to have and that if organized crime groups in other parts of Mexico are interested and willing to retaliate against people in Mexico City, they could doit easily.[29] [31] I find that the cartel has both the motivation and the means to track the claimants throughout Mexico, including in the IFA locations. [32] The cartel members have shown a strong interest in pursing the principle claimant. They believe the principle claimant can lead them to her mother. The cartel followed the principle claimant from the time her mother left Mexico in 2019. The cartel beat the principle claimant and threatened her life and the lives of her family. [33] For all of the above reasons, I find on a balance of probabilities that the La Familia Michoacana cartel has the means and motivation to pursue the principle claimant throughout Mexico and that the principle claimant therefore does not have a viable IFA within the country. She faces a risk to her life throughout Mexico. [34] Since the first prong of the IFA test fails, it is unnecessary to consider the second prong. CONCLUSION [35] For the foregoing reasons, I conclude that the principle claimant is a person in need of protection within the meaning of subsection 97(1)(b) of the IRPA. Therefore, I accept her claim. [36] The claims of the associate claimant and the minor claimant are dependent upon the claim of the principle claimant. I, therefore, find that the associate claimant and the minor claimant are persons in need of protection within the meaning of subsection 97(1) of the IRPA. Therefore, I accept their claims. (signed) Leslie Mason November 21, 2022 [1] Immigration and Refugee Protection Act, S.C. 2001, c.27, sections 96, 97(l)(a) and 97(l)(b). [2] Exhibit 2.1 [3] IRPA, supra, footnote 1. [4] Exhibit 1. [5] Bulbarela, Oscar Cessa v. MC.I. (F.C.T.D., no. IMM-2992-01), Dawson, June 4, 2002, 2002 FCT 636. [6] Exhibit 5, pp 5-6 [7] Exhibit 5, pp 17-18 [8] Exhibit 5, pp. 50-51 [9] Exhibit 5, pp. 52-53. [10] Exhibit 5, pp 9-10 [11] Exhibit 5, pp. 13-16 [12] Exhibit 5, pp. 60-71 [13] Exhibit 5, pp. 81-82 [14] Exhibit 5, p. 74 [15] Exhibit 5. Pp. 72-73 [16] Exhibit 5, 75-76 [17] Exhibit 5, pp. 86-90 [18] Exhibit 3, National Documentation Package (NDP) for Mexico, (September 29, 2022), item 7.25 [19] Exhibit 3, NOP for Mexico, (September 29, 2022), item 7.2 [20] Exhibit 3, NOP for Mexico, (September 29, 2022), item 1.4 [21] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) at 710. [22] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). [23] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) at 710. [24] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). [25] Exhibit 3, NDP for Mexico, (September 29, 2022), item 7.15, RIR MEX 106302.E [26] Ibid. [27] Ibid. [28] Exhibit 3, NDP for Mexico, (September 29, 2022), item 7.32, RIR MEX200968.E [29] Exhibit 3, NDP for Mexico, (September 29, 2022), item 7.8