TB7-06661

RPD File No. / N° de dossier de la SPR: TB7-06661 TB7-06678 Private Proceeding / Huis clos Reasons and Decision ? Motifs et Décision Claimant(s) XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Demandeur(e)(s) d'asile Date(s) of Hearing April 28, 2017 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision May 12, 2017 Date de la décision and reasons et des motifs Panel M. Dookun Tribunal Counsel for the Claimant(s) Giselle Salinas Barrister & Solicitor Conseil(s) du (de la/des) demandeur(e)(s) d'asile Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the principle claimant) is a 45-year old female who is accompanied by her 7-year old son, XXXX XXXX XXXX XXXX (the minor claimant). They are both citizens of Mexico. They are seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. [2] The principle claimant served as the Designated Representative for the minor claimant. ALLEGATIONS [3] The details of these claims are set out in the principle claimant's Basis of Claim form. To summarize, the minor claimant's father who is also the principle claimant's estranged husband worked as a taxi driver in Mexico. In September 2015, members of Los Zetas demanded that he work for them as a driver. They threatened that if he did not comply, they would harm his son and his estranged wife. [4] The principle claimant and her son fled Mexico in XXXX 2016. The principle claimant's estranged husband remains in Mexico. The claimants fear that should they return to Mexico, they would be kidnapped by Los Zetas due to the principle claimant's estranged husband's failure to comply with their demands. DETERMINATION [5] The panel finds that the claimants are neither Convention refugees nor persons in need of protection pursuant to sections 96 or 97(1) of the Immigration and Refugee Protection Act for the following reasons. ANALYSIS Identity [6] The claimants established their identities as citizens of Mexico by way of the certified true copies of their genuine Mexican passports.1 Credibility [7] The principal claimant's testimony was at times indirect. She was reminded on a few occasions to answer the question that was posed to her. However, she made no apparent attempts to seriously embellish her testimony except when leading questions were asked by her counsel concerning internal flight alternative and state protection. There were no major inconsistencies or contradictions inherent in her testimony. The panel has no serious reason to doubt for the most part the truthful nature of the principle claimant's sworn testimony. Section 96 Analysis [8] With regard to nexus, the panel finds, on a balance of probabilities, that the claimants' fear cannot be linked to one of the five Convention grounds. The claimants fear acts of criminality at the hands of a criminal gang. The panel finds that although these claimants may have been targeted because of their familial relationship to the primary target, the principle claimant's estranged husband, the primary target was not targeted for one of the five convention grounds. One might argue that the primary target's profession as a taxi driver places him in a particular social group however Ward is very clear that unless a person's profession in an integral part of their identity, it is reasonable to expect that they would leave that profession in order to avoid persecution. The panel does not find the primary target's profession as a taxi driver to be an integral part of his identity. In fact, the principle claimant testified that since July 2016, her estranged husband is no longer employed as a taxi driver but rather he does work as an electrician as he did possess skills in that trade. [9] As per case law in Zaidi,2 "When the primary victim of persecution does not come within the definition of a "Convention refugee," any derivative refugee claims based on family group cannot be sustained (Rodriguez v. M.C.I., [1997] F.C.J. No. 1246 (F.C.T.D.) ..." [10] The panel finds that the primary victim of persecution (the principle claimant's estranged husband) was a victim of common or organized crime in Mexico. That being so, these derivative claims must fail under section 96 of the Immigration and Refugee Protection Act due to a lack of nexus and instead will be assessed under section 97. Section 97 Analysis (Generalized Risk) [11] In order to accept this claim under section 97 of the Immigration and Refugee Protection Act, the panel must find that the claimants face a personalized risk in Mexico as opposed to a generalized risk. [12] Based on the documentary evidence,3 the panel finds, on a balance of probabilities, that there is a generalized risk of crime and violence in Mexico at the hands of criminal organizations. However, although there is no evidence to suggest that the principle claimant's estranged husband was initially targeted for an individualized reason, these claimants before me were specifically targeted because of his failure to comply with their demands. The panel finds that these particular claimants now face a personalized risk to their lives that is not faced generally by others in Mexico. As such, these claims do not fail based on generalized risk. [13] Whether assessed under section 96 or 97(1) these claims fail on the issues of state protection and internal flight alternative. STATE PROTECTION [14] Refugee protection can only be properly sought after a claimant has first sought the protection of her own state. There is an underlying presumption that a state, unless in complete breakdown, can protect its citizens. It is however open to a claimant to rebut that presumption by presenting clear and convincing evidence to the contrary. [15] In this particular case, the principle claimant concedes that she did not go to the police in Mexico for protection before seeking international protection. She indicated that she did not believe that the police in Mexico could protect her from Los Zetas. She further stated that she spoke with a friend who works with those who have made reports to the police. She stated that she was told by her friend that although she could make a report to the police, there would be "no guarantee" that the police could provide her with security. [16] The Federal Court of Appeal in Villafranca held that the protection offered by a state to its citizens need not be perfect, but that the state must undertake serious efforts to protect its citizens. In other words, no state can guarantee protection. The state need only be willing and able to provide adequate and effective protection. [17] The principle claimant was asked what she thought would happen if she went to the police for help. She testified that she thought that for example, if she did not feel safe in her home, that the police would patrol the areas near her home. The panel finds that the principle claimant herself concedes that the police would have acted on a complaint had she made one. [18] The panel concedes that there is a high rate of crime in Mexico as previously stated. The panel also concedes as per the documentary evidence4 that corruption exists within the Mexican police force. However, the panel notes that the Mexican government is making serious efforts to punish and thus deter such corruption. [19] The documentary evidence talks extensively of police officers and other officials being punished for their involvement in acts of corruption. For example, between 2008 and 2011, 6,500 police officers were fired in the Federal District, 70 percent of them for acts related to corruption.5 The Mexican government introduced new legislation in January 2009 that created new procedures to investigate police personnel and to make it easier to fire corrupt officers.6 [20] If a claimant does not approach the authorities in his or her country, it must be shown that it would have been objectively unreasonable for her do so. A claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state. [21] The 2016 U.S. DOS Report7 tells us that Mexico is a multiparty federal republic with an elected president and bicameral legislature. Civilian authorities generally maintained effective control over the security forces. The federal police, as well as state and municipal police, have primary responsibility for law enforcement and the maintenance of order. The panel finds that it was incumbent upon these claimants to seek local protection before seeking international protection. [22] The panel finds, on a balance of probabilities, that these claimants have not rebutted the presumption of state protection with clear and convincing evidence. The panel therefore finds that state protection would be available to these claimants should they return to Mexico and seek it. Internal Flight Alternative (IFA) [23] Alternatively, the panel finds, on a balance of probabilities, that a viable internal flight alternative exists for these claimants in Cancun. In considering a potential IFA the panel must apply a two-pronged test. First, the panel must be satisfied that there is no serious possibility of persecution or risk of harm in the proposed IFA. Second, the panel must consider whether it would be reasonable, in all of the circumstances, for the claimants to seek refuge there. [24] With regard to the serious possibility of the claimants facing a risk in Cancun, the panel notes that the principle claimant's estranged husband, who is the primary target of Los Zetas, is currently residing in Cancun and has been residing there for over nine months, since July 2016. The principle claimant testified that no harm has come to him in Cancun. The primary target no longer works as a taxi driver as previously mentioned but does do work as an electrician. In addition, the principle claimant testified that her estranged husband sent documents to her by going to a public internet café and asking those with computer knowledge to help him scan his letter outlining the problems he was having with Los Zetas to be emailed. [25] The panel finds that if Los Zetas were motivated to find and harm the primary target, they would have done so by now. The panel finds that Los Zetas either lack the means to find the primary target and hence these claimants in Cancun or lack the interest. The panel finds that there is no serious possibility that these claimants would face a risk in Cancun at the hands of Los Zetas. [26] With regard to the second prong of the test, in her submissions, counsel stated that as a single woman travelling alone with a child, it would be unreasonable for the principle claimant to relocate to Cancun. However, the panel notes that the principle claimant was a single woman alone in Veracruz. She worked to support herself and her child as a XXXX salesperson. Although she limited her activities after the threats were received, she continued to work until it was "nearly time" to leave Mexico. The principle claimant conceded that her profession as a XXXX salesperson is a profession that can be performed anywhere in Mexico. [27] The panel notes that the principle claimant's sister-in-law and aunt of the minor claimant resides in Cancun. The panel finds that the minor claimant can be registered in school in Cancun. As previously stated, there is no indication that Los Zetas are interested in harming these claimants as they have not shown an interest in harming the primary target who resides in Cancun today. CONCLUSION [28] The panel therefore finds that the claimants are neither Convention refugees nor persons in need of protection pursuant to sections 96 or 97 of the Immigration and Refugee Protection Act as adequate state protection would be available to them in Mexico and a viable internal flight alternative exists for them in Cancun. The Refugee Protection Division therefore rejects these claims. (signed) "M. Dookun" M. Dookun "May 12, 2017" Date 1 Exhibit 1. 2 Zaidi, Syed Tabish Raza v. M.C.I. (F.C., no. IMM-8779-04), Martineau, August 9, 2005; 2005 FC 1080. 3 Exhibit 4, items 2.1, 7.5 and 7.7. 4 Exhibit 4, items 2.1, 2.2 and 2.3. 5 Exhibit 4, item 7.2. 6 Ibid. 7 Exhibit 4, item 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.29.1 (August 31, 2012) RPD File No. / N° de dossier de la SPR: TB7-06661 TB7-06678