2023 RLLR 56

2023 RLLR 56 Citation: 2023 RLLR 56 Tribunal: Refugee Protection Division Date of Decision: December 12, 2023 Panel: K. Bainbridge Counsel for the Claimant(s): Krista Ann Rodriguez Country: Mexico RPD Number: TC3-15357 Associated RPD Number(s): N/A ATIP Number: A-2023-01721 ATIP Pages: 000098-000109 REASONS FOR DECISION INTRODUCTION [1] This is the decision regarding the claim of refugee protection made by XXXX who is a citizen of Mexico and is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“)[1]. ALLEGATIONS [2] The specifics of the claim are set out in the claimant’s Basis of Claim (BOC) form.[2] The following is a summary of the allegations. [3] The claimant alleges that he cannot return to Mexico because he was targeted by XXXX members of XXXX to do XXXX that they used to conduct their criminal operations. Exclusion 1E – Status in the United States [4] As set out in section 98 of the IRPA, a person referred to in Article 1E of the Refugee Convention is not a Convention refugee or a person in need of protection if they are a person who is recognized by the authorities of a third country in which they have taken residence, and have rights and obligations that are substantially similar to nationals of that country. [5] The panel has considered the legal test set out in the Federal Court of Appeal case in Zeng to determine if a refugee claimant should be excluded pursuant to Article 1E of the Convention. The Court stated the following: Considering all relevant factors to the date of the hearing, does the claimant have status substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article lE. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts.[3] [6] The claimant testified that he was brought to the United States as a child in 2000 when he was approximately 12 years old. His parents left the U.S. in 2015 to return to Mexico, however he remained because he was working illegally as a XXXX and receiving training as an XXXX. He returned to Mexico in 2017 because his father fell ill. [7] The claimant testified that he tried to regularize his status in the U.S. while he was there the first time and stated that he tried to “access the program by Obama” for children who were brought by their parents illegally into the U.S., however he was denied. The claimant also attempted to regularize his status when he entered and lived illegally in the U.S. a second time between 2020 and 2022, however he was told by the lawyer he hired, that he was ineligible to apply for asylum as he had previously lived in the U.S. illegally after he reached the age of majority, and further, he would not be eligible to apply for a visa. [8] The panel finds that the claimant does not have status or rights similar to that of United States nationals because he did not have legal status while living in the U.S. for several years. The claimant entered the country illegally on two occasions, the first as a child brought by his parents, and the second as an adult fleeing harm in Mexico. He testified that he chose to flee to the U.S. the second time because he was familiar with the country as he had grown up there. The panel accepts that he tried to regularize his status there on two occasions, but he was unsuccessful. Based on the evidence before the panel, the panel finds that the claimant did not previously obtain status in the U.S., nor did he lose status, and he does not have the right to return to the U.S. at the date and time of this hearing. Accordingly, the panel finds that the claimant is not excluded under Article 1E of the Convention. DETERMINATION [9] The panel finds that the claimant is a person in need of protection pursuant to s. 97(1) of the IRPA. ANALYSIS Identity [10] The panel finds that the personal and national identity of the claimant as a national of Mexico has been established on a balance of probabilities by his testimony, and his passport.[4] Nexus [11] The allegations of the claimant are that he is a victim of organized crime. The claimant was not targeted on the basis of any of the five Convention grounds. Therefore, the panel finds that the allegations of the claimant are more properly assessed under section 97(1) of the IRPA. Credibility [12] The presumption of truthfulness as set out in Maldonado applies to a claimant’s sworn testimony unless there is reason to doubt its truthfulness.[5] However, the presumption of truthfulness can be rebutted through material contradictions, inconsistencies, and omissions if they are not satisfactorily explained. Further, claims may be undermined by a lack of credibility. [13] The claimant testified in a straightforward manner, and he provided detailed testimony relating to the alleged events in Mexico. There were no inconsistencies or omissions identified by the panel, and the testimony was consistent with the allegations contained in the Basis of Claim. Further the allegations of the claimant were supported by numerous personal documents he provided. These documents included: three statements from close family members who were familiar with the claimant’s fear of XXXX and his attempts to relocate[6], a medical report detailing the claimant’s injuries from the attack of XXXX, 2018[7]; a police report made by the claimant regarding the same attack[8]; and a police report made by the claimant’ s parents regarding a break and enter by the agent of harm who were looking for the claimant in XXXX 2022[9]. [14] The panel has considered the credible testimony of the claimant and the corroborating evidence provided and finds that he is a credible witness. The panel accepts the allegations as true, on a balance of probabilities. Risk of Harm S. 97 Facts Established on a Balance of Probabilities [15] To establish his status as a person in need of protection, the claimant must show that he would be subjected, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if returned to Mexico. [16] In consideration of the credible testimony of the claimant and the supporting documentation filed, the panel finds that the claimant has established the following facts on a balance of probabilities: the claimant is from the community of XXXX located within the state of Guerrero; the claimant’s parents brought him to the United States when he was 12 years old in 2000, where they lived and worked illegally; his parents returned to Mexico in 2015; the claimant stayed in the United States obtained training as an XXXX while working illegally; the claimant returned to Mexico in 2017 because of an urgent issue with is father’s health; the claimant assisted his father with their farm and also made XXXX around the family home; others in the community noticed his XXXX skills and paid him to do work on their properties; his trade was noticed by members of XXXX who wanted him to do work for them; the claimant refused when first approached in XXXX 2018; they approached him again on XXXX, 2018 where they demanded he work for them, but he refused and they kidnapped him, beat him, and brought him before their boss who demanded he do the work or else they would kill him; he was knocked unconscious and dropped off near his parents’ home; the claimant was taken to the hospital for treatment of his injuries; the claimant made a police report about the XXXX, 2018 incident, the perpetrators and the injuries; the claimant was further harassed by the agent of harm after making the complaint; on XXXX 2019, the agents of harm found the claimant at a local store and told him they were going to take him to work; the claimant did not refuse as he feared for his life; he was taken to the warehouses operated by XXXX, where he worked XXXX for approximately a month and a half; while working XXXX, he witnessed drugs for trafficking, weapons, and faces of cartel members; that claimant did not finish the work in XXXX 2020 because he knew once he did, they would kill him, instead he fled to his brother’s home in Toluca, Mexico City, which is five to six hours away from his parents’ home; he disposed of his cellphone before relocating; a few days later, his brother received a call from his cousin stating that the agent of harm had been asking the community about the claimant’s location and that they wanted to kill him for failing to comply with their orders and for making a complaint to the police; the claimant was located by a member of the agent of harm while shopping in a market with his brother who told the claimant they now knew where he was; the claimant relocated to his sister’ s house in 2020 who lives in the city of XXXX in Queretaro, which is about 10 hours from his hometown; the claimant’s sister hosted a father’s day celebration at her home in XXXX 2020 where the claimant’s parents visited; during this visit, a rock with a note was thrown through the window which stated that they knew where the claimant was; the claimant decided to flee to the United States; the claimant made the journey to the United States where he worked and lived illegally; he contacted a lawyer and paid him, but he was told he could not be helped since he had already lived illegally when his parents brought him to the United States as a child and he stayed until he was an adult; he was delayed leaving the United States due to the pandemic, but eventually made his way to Canada where he claimed refugee protection; the claimant’s parents were visited by the agents of harm on XXXX, 2022 who were looking for the claimant, and they ransacked their home looking for information about his location after his parents told them he was no longer in the country; his parents made a police report about this incident and continue to live in fear. [17] Given the credible testimony of the claimant and the various personal documents and country conditions evidence provided, the panel accepts these allegations as true on a balance of probabilities. Section 97(1) Analysis Does the claimant face a personal risk? [18] According to the objective evidence, over the past two decades, criminal violence in Mexico has become highly intense, diversified, and popularized, while the deterrence capacity of Mexican law enforcement remains critically low. The outcome is an ever more complex, multipolar, and out-of-control criminal market that generates deleterious effects on Mexican society and makes it highly challenging for the Mexican state to respond effectively.[10] [19] Freedom House reports in 2022, that Mexicans are subject to the threat of violence at the hands of several actors, including individual criminals, drug cartels that operate with impunity, and police officers who are often susceptible to bribery. Mexicans are particularly vulnerable to enforced disappearances, which remains a tremendous challenge for the government despite efforts to address the missing-persons backlog in recent years.[11] [20] Noteworthy is that violence in Mexico has become diversified over the past decade, with drug trafficking groups becoming involved in widespread extortion of legal businesses, kidnapping, illegal logging, illegal mining, and smuggling of migrants. That is partially a consequence of the fragmentation, as smaller groups are compelled to branch out into a variety of criminal enterprises. But for larger groups, extortion of large segments of society is not merely a source of money, but also of authority.[12] [21] Furthermore, the objective evidence suggests that 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.[13] The documentary evidence suggests that when analysing 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.[14] 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.[15] [22] The experience of the claimant outlined in the previous section is in line with the objective evidence above, which discusses the increasing use of violence by organized criminals to threaten those who do not obey them or expose their enterprises or illegal activities to the authorities. [23] Therefore, the panel finds that the first part of the test has been established and finds that the claimant would be personally subjected to a risk to life or risk of cruel and unusual treatment or punishment if he were to return to Mexico, on a balance of probabilities. Is the risk to the claimants faced generally? [24] In Guerrero v Canada (Minister of Citizenship and Immigration), 2011 FC 1210, Justice Russel Zinn observed at paragraph 34 that the requirement that the risk is not faced generally by other individuals in or from that country means that: “Persons who face the same or even a heightened risk as others face of random or indiscriminate violence from gangs [may not be] eligible for protection. However, where a person is specifically and personally targeted for death by a gang in circumstances where others are generally not, then he or she is entitled to protection under s. 97 of the Act if the other statutory requirements are met.” [25] Further, the Federal Court decision in Lovato [2012] FC143 at paragraph 13, directs the Board to focus not only on the reasons why a claimant is being targeted, but also on the extent to which they are being targeted, and whether that extent is beyond that experienced by the population at large. [26] The evidence before the panel is that the claimant was targeted by XXXX because he had knowledge as a skilled XXXX and became well known in the community as someone who could perform work as an XXXX. The claimant was seen as valuable to them as he could perform work XXXX that housed their criminal enterprises, which included illegal weapons, drugs, and other cartel members. The claimant refused to do the work several times despite being threatened with death and being brutally attacked. In the end, the claimant could not withstand the pressure and did the majority of the work but left before the work was completed because he knew he would likely be killed upon its completion. The claimant is also a person of interest to the agent of harm because he made a police report about the attack in which he was beaten by the agent of harm. [27] Therefore, the panel finds that the risk faced by the claimant is not generalized to the entire Mexican population because the claimant was targeted due to his skills as an XXXX and he performed work XXXX for the agent of harm thereby becoming knowledgeable of their operation. The risk to the claimant is specific to him and is not generalized to the entire Mexican population. State Protection [28] 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. [29] Claimants are expected to seek state protection in their home country unless they would put themselves at risk in doing so. The claimant testified that he made a complaint to the police about the attack by the agent of harm which occurred on XXXX, 2018. Despite making this complaint and following up on the complaint, the claimant was told by the authorities that nothing could be done and there had been no progress made on pursuing those responsible for the attack. Further, the claimant’s parents’ home was invaded by the agent of harm in 2022 where they demanded to know information about the claimant’s whereabouts. They further ransacked the home of the claimant’s parents when they were told he was no longer in the country. The claimant’s parents made a police report about the incident; however, they have not received assistance from the police in terms of locating the perpetrators since making the report. [30] As discussed previously, there is a lack of state protection in Mexico due to weak and corrupt police forces, or in many cases, police forces who are the perpetrators of crime themselves.[16] The claimant, and his parents who still reside in Mexico, attempted to access police protection, but their efforts were not supported. These experiences are in line with the documentary evidence previously discussed, namely that police forces in Mexico are corrupt, overworked, and underpaid, and that government actors are often infiltrated by organized crime and corrupted. [31] Given the objective evidence regarding state protection in Mexico and the testimony of the claimant, the panel finds that the claimant has rebutted the presumption of state protection by providing evidence that it is not available to him, on a balance of probabilities. Internal Flight Alternative [32] The panel has considered whether a viable internal flight alternative (IFA) exists for the claimant. The panel identified Campeche and Merida. The panel finds that the objective documentary evidence corroborates the position of the claimant which is that a viable IFA does not exist to him in Mexico as the agent of harm has demonstrated an ongoing interest in pursuing him throughout Mexico. [33] The claimant testified that he attempted to relocate twice within Mexico to escape the agent of harm. He relocated to Toluca in Mexico state, and city of XXXX in Queretaro. Each location was between five to ten hours away from the claimant’s hometown; however, the agent of harm was able to locate him there. The claimant was asked if he ever considered relocating further way from his hometown and he testified that he did, but because he had already been located twice by the agent of harm despite his relocations, he no longer felt safe in Mexico and he made the decision to flee the country. [34] The objective evidence states that XXXX, similar to most other cartels in Mexico, does not have a national presence in the country.[17] However, the objective evidence also states that cartels can and will enter into temporary alliances with each other, and these alliances can be difficult to track because they can occur quickly.[18] For instance, the United States Drug Enforcement Administration reports that XXXX has developed ties to the Cartel Jalisco Nuevo Generacion (CJNG)[19], which is considered to be the only cartel with a national presence in Mexico.[20] Further, XXXX is known to have made alliances with other cartels such as Los Zetas, which is another cartel who has made temporary alliances with other criminal organizations, such as the Beltran Leyva Organization (BLO) and the Gulf Cartel.[21] [35] The objective evidence also states that if a criminal organization 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…. with indications of having cooperation from relevant authorities…then the ability to track and retaliate against a certain person would be a reasonable concern to have”.[22] There are various ways in which a criminal organization could locate someone, such as connections with other criminal groups as previously discussed, through bribing employees of telephone companies to track phone calls, the use of spyware to locate individuals, and bribery of corrupt state officials.[23] [36] Given this information, the panel finds that the claimant remains a person of interest to the agent of harm. The panel acknowledges that the objective evidence states that XXXX may not be as powerful as it once was, however, the actions of the agent of harm and the objective evidence that states a person can be found by a criminal organization through alliances they may have with other criminal groups, and/or connections to state authorities or telecom operators. [37] Therefore, the panel finds that the means and motivation of the agent of harm to pursue and locate the claimant has been established on a balance of probabilities. The panel finds there is no viable internal flight alternative available to the claimant. CONCLUSION [38] The panel finds that the claimant is a person in need of protection pursuant to s. 97(1) of the IRPA. Therefore, his claim is accepted. (signed) K. Bainbridge December 12, 2023 [1] Immigration and Refugee Protection Act, S.C. 2001, c. 27. [2] Exhibit 2 [3] Zeng v. Canada (Minister of Citizenship and Immigration), [2011] 4 F.C.R. 3 (F.C.A.). [4] Exhibit 1. [5] Maldonado v. M.E.I. [1980] 2 F.C. 302, 31 N.R. 34 (C.A.) [6] Exhibit 5, pages 1-20. [7] Exhibit 5, pages 21-23. [8] Exhibit 5, pages 24-26. [9] Exhibit 5, pages 27-29. [10] Exhibit 2, National Documentation Package, National Documentation Package, Mexico, 29 September 2023, tab 7.10: Organized Crime and Violence in Mexico: 2021 Special Report. University of San Diego. Justice in Mexico. October 2021. [11] Exhibit 2, National Documentation Package, Mexico, 29 September 2023, tab 2.8: Mexico. Freedom in the World 2023. Freedom House. 2023. [12] Exhibit 3, National Documentation Package, Mexico, 29 September 2023, tab 7.10: Organized Crime and Violence in Mexico: 2021 Special Report. University of San Diego. Justice in Mexico. October 2021. [13] Exhibit 3, National Documentation Package, Mexico, 29 September 2023, tab 10.2: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available to report instances of corruption (2017-September 2020). Immigration and Refugee Board of Canada. 1 September 2020. MEX200314.E. [14] Ibid. [15] Ibid. [16] Exhibit 3, National Documentation Package, Mexico, 29 September 2023, tab 10.2: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available to report instances of corruption (2017-September 2020). Immigration and Refugee Board of Canada. l September 2020. MEX200314.E. [17] National Documentation Package, Mexico, 29 September 2023, tab 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017-August 2019). Immigration and Refugee Board of Canada. 15 August 2019. MEX106302.E. [18] Ibid. [19] National Documentation Package, Mexico, 29 September 2023, tab 7.2: Mexico: Organized Crime and Drug Trafficking Organizations. United States. Congressional Research Service. June S. Beittel. 7 June 2022. R41576. [20] National Documentation Package, Mexico, 29 September 2023, tab 7.7: The Jalisco New Generation Cartel (Cártel de Jalisco Nueva Generación, CJNG) its activities, areas of operation, and influence; ability of the CJNG to track and retaliate against people who move to other areas of Mexico; the profiles of people they would be motivated to track and target (2021-August 2023). Immigration and Refugee Board of Canada. 31 August 2023. MEX201603.E. [21] National Documentation Package, Mexico, 29 September 2023, tab 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017-August 2019). Immigration and Refugee Board of Canada. 15 August 2019. MEX106302.E. [22] National Documentation Package, Mexico, 29 September 2023, 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. [23] Ibid.