2023 RLLR 38

2023 RLLR 38 Citation: 2023 RLLR 38 Tribunal: Refugee Protection Division Date of Decision: December 13, 2023 Panel: Hannah Gray Counsel for the Claimant(s): N/A Country: Mexico RPD Number: VC3-01591 Associated RPD Number(s): N/A ATIP Number: A-2023-01721 ATIP Pages: N/A REASONS FOR DECISION INTRODUCTION [1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX (the claimant) of Mexico, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “IRPA”).[1] [2] The claimant was self-represented for his hearing. [3] The claimant’s uncle, XXXX XXXX XXXX, testified as a witness during the hearing. DETERMINATION [4] I find that the claimant is a person in need of protection pursuant to section 97(1) of the Act. ALLEGATIONS [5] The specifics of the claim are stated in the claimants Basis of Claim (BOC) form and narrative in evidence.[2] [6] The claimant is a 41-year-old man who lived in Oaxaca and Mexico City before coming to Canada in XXXX 2022. The claimant also lived in the USA undocumented from 1999 to 2016. [7] At the XXXX of 2019 the claimant began to work for a company that XXXX XXXX XXXX XXXX in Mexico called XXXX XXXX. I was told I would be fired if I he didn’t XXXX XXXX XXXX in one month. The claimant’s uncle, XXXX XXXX XXXX, who lived in California, USA, had a XXXX XXXX in Cancun and the claimant connected his uncle with this company in order to secure a XXXX and keep his job. The claimant and his uncle completed the paperwork and submitted it to the company and paid a lot of money for the process. Once the claimant’s uncle paid the fees and the claimant gave the company the paperwork saying the XXXX XXXX XXXX was the XXXX XXXX, he was never compensated for his expenses nor the XXXX, and never heard from them again. [8] In XXXX 2020 the claimant’s uncle came to Mexico from the USA with all the documents proving the transaction and went to make his complaint and file a lawsuit. He went to the XXXX XXXX to submit his complaint. He was given a file number: XXXX. He then returned to the USA however he had provided the claimants phone number and address for follow up. The claimant began feeling as though he was being followed by people and vehicles, so he eventually set up video cameras around his house. [9] The claimant was accosted by people a few times. One time in XXXX 2021 he was approached by a few people who cut his hand when he went to protect himself. Another time, he exited his truck and was attacked my masked perpetrators who said nothing at all and did not try to rob him, which made the claimant think they were sent as hitmen to take him out. [10] The claimant went to Oaxaca, to a small village where he has relatives, for two weeks in XXXX 2021 in order to evade being harmed again. While there his grandparents and distant cousin informed him that there were people who came to the village looking for him by name, so he left and returned to his mother’s house in Mexico City. [11] After his uncle’s claim was not pursued by the authorities the claimant attempted to file a follow up claimant at the XXXX XXXX on three occasions. He was finally successful in filing another complaint in XXXX 2021 however, they never followed up. [12] The claimant went to the local police twice to report on being followed and accosted in Mexico City, however the police stated that if they didn’t have hard evidence like names, or profiles there was nothing they could do. [13] When the claimant was heading to the airport to leave Mexico for Canada in XXXX 2022 a car pulled up next to his and shouted at the claimant, threatening to kill him. [14] The claimant came to Canada in XXXX 2022 and made his refugee claim in April 2023. ANALYSIS Identity [15] I am satisfied with the personal and national identity of the claimant as a citizen of Mexico, which is established by his testimony, and the copy of his passport in evidence.[3] Credibility [16] When a claimant swears to the truth of allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.[4] The claimant testified in a straightforward, forthright, detailed, and candid manner. Although there were a few inconsistencies I find that the claimant provided reasonable explanations. He did not appear to exaggerate or tailor his evidence. In summary, his testimony was mostly consistent with the other evidence on central aspects of his claim. [17] I find that the claimant provided ample details to expand upon his allegations. The claimant also provided evidence in exhibit 4 which included, a. Complaint that he submitted to the national complaint’s office in XXXX 2021 b. Complaint that his uncle, XXXX XXXX, submitted to the complaint’s office from XXXX 2020 c. Witness information for claimant’s uncle who testified in the hearing. d. Cover sheet for XXXX contract for XXXX XXXX XXXX XXXX XXXX from the XXXX company, where the claimant encountered the agent of harm and accomplices. [18] During the hearing the claimant testified that he fears retribution from the agent of harm, the owners of the XXXX XXXX company, as both the claimant and his uncle, Mr. XXXX, reported the agent of harm to the authorities. When the claimant was asked for additional evidence to support his allegations, he referred to the items in exhibit 4 and then offered to call his uncle as a witness. During the hearing the claimant spontaneously called his uncle, who currently resides in California, USA. He testified before the board. The claimant’s uncle answered questions in a candid and detailed manner, and provided additional information on the deceptive business deal that he was involved with, the theft of his XXXX in Cancun without compensation by the XXXX XXXX company, and how he reported this to the authorities in Mexico in XXXX 2020. He further testified that since returning to the USA he reported his case to the Mexican consulate in California, and it is now an ongoing case. He testified that he could provide the documents to substantiate his allegations of having an open case with the Mexican consulate in the USA. The uncle concluded his testimony by stating that the claimant was being targeted by these criminals as the claimant worked for XXXX XXXX, and the uncle had been in the USA and therefore avoided any type of direct threats or harm. [19] I have no reason to doubt the genuineness of these documents, nor of the claimant’s uncle’s testimony, which corroborated the claimant’s allegations and his documentary evidence. Since the documents and witness testimony relate to the claimant’s experiences in Mexico, including his place of employment, the theft of the witnesses XXXX, the steps they took to file formal complaints, and the steps the witness took in pursuing this case in the USA, and the ongoing interest in the claimant and his uncle, and therefore the risks the claimant faces if he were to return to Mexico, I place significant weight on these documents and on the witness testimony in support of the claimant’s allegations. [20] Concerns were raised when the claimant testified about the time that the XXXX XXXX XXXX closed, as it was during the COVID pandemic, as well as the length of time he took before making his complaint to the XXXX XXXX complaints department. When this was put to the claimant, he testified that it took time for his office to fully close however it finally closed in XXXX or XXXX 2020. The claimant further testified that before the office closed his manager asked him about his visit to the XXXX XXXX, which is when he attempted to make his first complaint but was unsuccessful. When the claimant was asked about the length of time he took before making his complaint he testified that he attempted to make a complaint in XXXX 2020, then his uncle made his original complaint in XXXX 2020, and the claimant tried one more time before he finally was able to submit it, as the complaint office was often extremely busy. I accept the explanation provided by the claimant over these concerns and do not find that these inconsistencies undermine the claimant’s subjective fear nor his overall credibility. [21] The claimant arrived in Canada in XXXX 2022 and submitted his BOC in April 2023. When this delay was put to the claimant he testified that he did not intend to make a refugee claim at first as he had planned to come to Canada until the issue improved in Mexico and he felt safe to return and he further testified that he had originally planned to work for a period of time in Canada, which is why he delayed in making a refugee claim. He further testified that he does not feel safe returning now as his uncle continues to be in regular contact with the Mexican Consulate in California, USA regarding his case against the claimant’s former company of employment in Mexico and therefore the claimant testified that they will still be motivated to find him and his risk of harm is ongoing. I find that this explanation seems reasonable in the claimant’s alleged circumstances. I accept the claimant’s explanation for delaying in his claim and therefore it does not appear to raise significant concerns with respect to his subjective fear or credibility. [22] While living in the USA the claimant was arrested for two counts of driving under the influence. The claimant testified that on each occasion he spent one night in jail and had to pay a bond as well as a court mandated course on alcohol consumption after his first arrest. [23] Prior to the hearing the RPD notified the Minister, pursuant to RPD Rule 28(1)(a), of possible inadmissibility, considered under Subsections 36(1)(b) and (c) of the Immigration and Refugee Protection Act, inadmissibility may be founded on a conviction for, or the commission of, an offence where committed outside of Canada, which would if committed in Canada, be punishable by a maximum punishment of at least 10 years, and the grounds for so believing are that: a. The claimant, in his IMM 008 schedule 12, said that he had been detained by US Police in Washington State, from XXXX XXXX 2009 to XXXX XXXX 2009, for a DUI and that he was convicted on XXXX XXXX 2009. b. The claimant, in his IMM008 schedule 12, said that he had been detained by US Police in California State, from XXXX XXXX 2016 to XXXX XXXX 2016, for a DUI and that the charge was dismissed on XXXX XXXX 2022. [24] The Minister did not respond to the invitation to intervene in this claim. Furthermore, the RPD notes that the Canadian equivalent provision for this offence is found at section 320.14 of the Criminal Code of Canada and, pursuant to section 320.19(1)(a) the maximum punishment for this offence, if prosecuted by indictment in Canada, is imprisonment for a term of not more than 10 years. Therefore, I did not consider excluding the claimant based on the above-mentioned arrests. [25] Given the claimant’s careful testimony and supporting documents, I find that the claimant has established, on a balance of probabilities, the facts alleged in his claims, including that the claimant’s problems began in late 2019 or early 2020 when he worked for the XXXX XXXX company for a short period of time and subsequently involved his uncle in XXXX them his XXXX, with out being compensated. I also accept, on a balance of probabilities, that the claimant and his uncle filed complaints against this company at the national level. Therefore, I accept, on a balance of probabilities, the subjective fear he has of returning to Mexico now as he fears retribution for filing these complaints. In sum, I find the claimant to be a credible witness, and therefore believe what he has alleged in support of his claim. Section 97 [26] In order to satisfy the definition of a Convention refugee found in section 96 of the Act, a claimant must establish that he or she has a well-founded fear of persecution by reasons of race, religion, nationality, membership in a particular social group, or political opinion. In terms of section 96 of the Act and whether the claimants’ allegations establish a nexus to any of the 5 Convention grounds, I find that it does not. [27] I find that the claimant’s fear of harm results from criminality, as he is targeted since he was involved with a business that initiated a fraudulent XXXX deal which the claimant and his uncle reported to the authorities. However, the harm faced is not persecution based on a Convention ground. Therefore, I have assessed this claim under section 97 of the Act. Risk of Harm [28] The definition of a person in need of protection in the Act requires that a claimant show that their removal will subject them, personally, to a risk to life, to a risk of cruel and unusual treatment or punishment, or a risk of torture. In the present case, the claimant is specifically targeted by the criminals involved with the XXXX XXXX company or their affiliates, due to his involvement in a fraudulent XXXX deal and reporting it to the authorities. [29] In order to assess whether that the claimant personally faces a risk to his life from the agent of harm, I will assess the objective evidence regarding criminal activity in Mexico. According to the country conditions evidence, organized crime is pervasive in Mexico and is responsible for alarmingly high levels of violence in the country. While the claimant has not alleged that he was targeted by a specific criminal organization, he testified that he was targeted by his former workplace, which appeared to be affiliated with a criminal group, as they were involved with fraudulent XXXX deals and then they pursued him for making a complaint at the national level. [30] According to the most recent version of the National Documentation Package (NDP) for Mexico, at NDP item 2.1 on Mexico, criminal organizations carried out widespread killings and other illegal activities throughout the country, and there were reports of numerous enforced disappearances by organized crime groups, sometimes with allegations of state collusion. According to an RIR in the NDP at item 7.8, criminal violence has become highly intense, diversified, and popularized over the past two (2) decades in Mexico. The same report states that “widespread violence and ungovernability has affected almost all Mexican states. [31] I find that the agents of harm in this case have personally targeted the claimant due to a personal vendetta with the claimant, and that the claimant will therefore be subjected, personally, to a risk to his life in all of Mexico as he reported them to the police and to the XXXX XXXX complaint department. I find, on a balance of probabilities, that the agent of harm would continue to target the claimant should he return to Mexico. Generalized Risk [32] The next question to consider is whether the risk that the claimants face is faced generally by other individuals in Mexico. The federal court has held that the question is not whether others with similar characteristics could find themselves in the claimant’s position, but whether others generally are in that position now. The evidence before me establishes that the claimant was targeted for a personal vendetta by the criminals in his former place of employment, as the claimant was tracked and his life was threatened as they had a vendetta against the claimant, as the claimant and his uncle reported them to the authorities in Mexico City as well as at the Mexican consulate in California, USA. [33] The claimant is being threatened because of his knowledge of the fraud and whatever information regarding it he still has, as well as for reporting it to authorities. Based on the claimant’s former job, the threats, and the harm he received, and the suspicious men around the home of his family member, I find that the claimant faces a likely risk of section 97(1)(b) harm if he returns to Mexico and that it is objectively well-founded. [34] Furthermore, given the objective evidence above where it is indicated that criminal groups in Mexico are known to track individuals based on personal vendettas, I find, on a balance of probabilities, that the agent of harm has pursued the claimant with the intent to harm him in retribution for reporting them to the authorities. [35] While all people in Mexico could face the possibility of being targeted by criminal organizations, the evidence in this case establishes that the claimant has been personally targeted in Mexico. As the claimant has been specifically named and under surveillance, I find that his situation is therefore distinct from that of the general population of Mexico. [36] Adopting the language from Correa v Canada, the claimant has been specifically and personally targeted for death in circumstances where others are generally not. I find that the claimant has established that the risk he faces is one he is personally facing, and that it is not faced generally by the population in Mexico. State Protection [37] Except in situations where the state is in a state of complete breakdown, states are presumed to be capable of protecting their citizens. The presumption of state protection can only be rebutted with clear and convincing evidence of the state’s inability to protect a particular claimant. In reviewing the country conditions evidence in this case, I find that the presumption of state protection has been rebutted with clear and convincing evidence. [38] The claimant testified that he went to the police to report being harassed and accosted by unknown people on two occasions and the police did not file his report nor take any action as the claimant did not know the names of the individuals who accosted him. Furthermore, the claimant and his uncle filed reports with the XXXX XXXX complaint department and did not receive any response. In his candid testimony, the claimant’s uncle, testified that he has since made a report to the Mexican consulate in California, and they are in the process of collecting relevant information. [39] According to the NDP at item 2.8, police corruption in Mexico remains a major problem. While Mexico has made legislative reforms to address police corruption and involvement with criminal cartels, the objective evidence establishes that the effectiveness of these reforms has not manifested. According to a Freedom in the World report of 2023, at 2.8 of NDP, violence is perpetrated by organized criminals, corruption amongst government officials, human rights abuses by both state and non-state actors, and rampant impunity are among the most visible of Mexico’s many governance challenges. Item 7.16 of the NDP explores how corruption has infiltrated all ranks of the Mexican authorities, noting, the culture of corruption in Mexican government entities, including public safety, political and other institutional elements have subjected municipal, state, and federal police forces to criminal elements because of coercion, force, or death. Threats and acts of retribution convert police officers into surrogate organized crime actors, who, in turn, participate in extortion, kidnapping and assassination at the behest of their criminal sponsors. [40] In view of the objective evidence, I find, on a balance of probabilities, that adequate state protection would not be forthcoming to the claimant should he return to Mexico. The objective evidence indicates that although legislative reforms have been implemented, that implementation has not translated to that of an operationally effective state protection. Therefore, I find that the perception of state protection has been rebutted. Internal Flight Alternative [41] The test for a viable IFA has two prongs and I must be satisfied of both on a balance of probabilities in order for there to be a viable IFA. First, I must be satisfied that the claimants would not face a serious possibility of persecution and that they would not be personally subjected to a risk to life, of cruel and unusual treatment or punishment or danger of torture in the IFA. Second, I must be satisfied that it would not be unreasonable in all the circumstances, including those particular to the claimants, for the claimants to seek refuge there. Once an IFA has been proposed, the onus is on the claimants to show that the IFA location is unreasonable, which requires the existence of conditions which would jeopardize their life and safety.[5] [42] For the reasons below, I find that the claimant does not have a viable internal flight alternative in Mexico. [43] At the outset of the hearing, I identified La Paz and Merida as potential IFA locations. After reviewing the country condition evidence, I find the agent of harm has demonstrated, on a balance of possibilities, both the motivation and means to track the claimant in other areas of Mexico. Therefore, I find that the IFA test fails on the first prong. [44] The claimant testified that he was followed to his home, and tracked and assaulted when he went to visit his mother on public transport. He further testified that he was pursued in a small village in Oaxaca when he was there in hiding in XXXX 2021 and when he drove to the airport before fleeing to Canada in XXXX 2022. Additionally, the claimant and his uncle testified that his uncle is pursuing the matter with a Mexican consulate in the USA, which will likely come to the attention of the agent of harm, if it has not already, and will put the claimant at further risk. [45] Furthermore, if the claimant were to return to Mexico and relocate, his location could be divulged through the claimant’s family members, who still live in Mexico. The Federal Court has repeatedly held that a refugee claimant cannot be expected to live in hiding in order for a proposed IFA to be reasonable. In Zamora Huerta, Erika Angelina v. M.C.I., one ruling, (F.C., no. IMM-1985-07) – para 29, the Court noted that “[n]ot to be able to share your whereabouts with family or friends is tantamount to requiring the Applicant to go into hiding.” [46] While it is typical to expect that family members will not divulge the location of the claimant to the agent of harm, in this case the evidence indicates that the claimant will face a risk of his relatives eventually informing the agents of harm of the claimant’s location, such as in a situation of duress if the claimant were to return and relocate elsewhere in the country. [47] Therefore, I find, on a balance of probabilities, that the agents of harm have both means and motivation to pursue the claimant throughout Mexico and no viable IFA exists for him. CONCLUSION [48] For the foregoing reasons, I find that the claimant is a person in need of protection pursuant to section 97(1) of the Act and I accept his claim. (signed) Hannah Gray December 13, 2023 [1] Immigration and Refugee Protection Act, S.C. 2001, c. 27. [2] BOC 2 [3] Exhibit 1. [4] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.). [5] Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164, Court of Appeal.