2023 RLLR 55

2023 RLLR 55 Citation: 2023 RLLR 55 Tribunal: Refugee Protection Division Date of Decision: August 17, 2023 Panel: Matthew Stumpf Counsel for the Claimant(s): Marianne B. Lithwick Country: Mexico RPD Number: TC2-36011 Associated RPD Number(s): N/A ATIP Number: A-2023-01721 ATIP Pages: 000087-000097 REASONS FOR DECISION [1] XXXX, a citizen of Mexico, seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1] ALLEGATIONS [2] The claimant alleges a prospective risk of harm at the hands of the Jalisco New Generation Cartel (CJNG). He claims that the CJNG threatened, coerced, and attempted to force him to work for them. After he refused multiple times, he alleges that armed members of the CJNG assaulted him. DETERMINATION [3] I find that the claimant is a person in need of protection as contemplated by section 97 of IRPA and therefore accept his claim. ANALYSIS Identity [4] I find, on a balance of probabilities, that the claimant has established his personal and national identity as a citizen of Mexico through the identity documents filed, namely his passport.[2] Credibility [5] In claims before the RPD, there is a presumption that sworn testimony is true unless there is valid reason to doubt its truthfulness. I found the claimant’s testimony to be consistent, compelling, and genuine, and have no reason to doubt its truthfulness. [6] The claimant testified that the CJNG first became aware of him through his mother’s partner, who was working with them. Members of the CJNG approached him and asked them to work with them multiple times between XXXX and XXXX 2021 because of his education in XXXX and his job position as a XXXX for a XXXX. He claims they wanted to use his position to transport drugs using vans. As a result of their advances, he went to live with his father. His mother’s partner began earnestly calling him and insisting that he work for the CJNG. [7] On XXXX, 2021 the claimant received a phone call from a member of the CJNG threatening to kill him if he did not cooperate and work with them. The letter of the claimant’s friend XXXX, who was with him at the time of the call, corroborates the claimant’s testimony as to this event, the demands of the CJNG to work with his mother’s partner, and their threats to his life.[3] [8] On XXXX, 2021, a grey vehicle with tinted windows cut the claimant’ s car off while he was driving with his friend. Four armed members of the CJNG got out, pointed their guns at the claimant and his friend, and told the claimant he had to come and work for them. One of them hit the claimant with his gun, leaving him bruised and injured. The claimant submitted a letter from his friend XXXX, who was with him at the time of this incident, corroborating the claimant’s testimony with respect to this event and the threats made by the CJNG.[4] [9] Finally the claimant testified that on XXXX, 2021, after keeping a low profile and barely leaving home, he took a motorcycle to visit his grandma because she was having a XXXX. He took a route that passed underneath a bridge, at which point a black car with tinted windows hit his motorcycle. He was bruised and bleeding from his face after the impact, which is documented in the pictures submitted by the claimant.[5] Two armed men got out of the car, picked the claimant up, and threw him in the back of their vehicle. They told him they were taking him to their boss. The claimant managed to escape by hitting one of them and diving out of the moving vehicle as it approached a speed bump in the road. He ran and hid in the bushes before jumping into the nearest taxi. After this incident, he went to live with his uncle at a more secure address in Colima while he recovered. His father and uncle submitted letters of support which corroborate the claimant’s physical injuries following the incident, the threats made against him by the CJNG, and the claimant’ s testimony as to his living in hiding.[6] The claimant ultimately left Mexico on XXXX, 2021. [10] The claimant testified that initially he only intended to come to Canada on a temporary basis to allow time for things to calm down in Mexico. However, while he was living in Canada, his aunt informed him of a shooting at his mother’s house that occurred on XXX, 2022. The claimant submitted a letter from his cousin, who had witnessed the shooting, in support of this allegation.[7] The claimant’s mother disappeared on XXXX, 2022 and was found dead with her partner several days later on XXXX, 2022. The claimant submitted a death certificate that indicates his mother died a violent death by strangulation on XXXX, 2022.[8] Following his mother’s death, the claimant changed his mind and decided to submit a refugee claim in September 2022. [11] The NDP evidence shows that the CJNG is a well-organized, aggressive, and violent criminal group present in most of the Mexican states, and one of the largest and most dangerous criminal groups in the world.[9] The CJNG is known for its “aggressive use of violence”, and activities of the CJNG include human trafficking, homicide, forced disappearances, and other forms of extreme violence.[10] The CJNG is reported to have the most operational capacity and is the only cartel, apart from the Sinaloa cartel, to have a national presence.[11] The NDP states it is the dominant criminal actor in Colima, where the claimant lived in Mexico.[12] The claimant also submitted an expert report which notes the aggressive, violent activities of the CJNG including kidnapping, torture, murder, and making individuals disappear for reasons such as failing to pay extortion or challenging the group’s interests.[13] I find this report to be reliable and persuasive on the basis of the extensive credentials of the author, how recently it was written, and how it addresses the claimant’ s specific circumstances. It also complements and does not contradict other sources of the NDP. I therefore attach it full weight. This report also details the state of the art military grade technology possessed by the CJNG and the high level of state corruption it exploits, and notes the CJNG are the dominant group in Colima.[14] It also explains the prevalence of forced recruitment by the CJNG of local citizens and how this has fueled their rapid expansion.[15] This profile of the CJNG is consistent with the claimant’s testimony. [12] I accept the credibility of the claimant’s key allegations as summarized above. In addition to his clear, convincing testimony, the claimant adduced supporting documentation in the form of letters from his father, his uncle, his cousin, and two of his friends, photos of himself after his attack, and his mother’s death certificate.[16] These letters corroborate the important events in the claimant’s testimony, namely the efforts by the claimant’s mother’s partner and the CJNG to recruit the claimant, the claimant’s departure to live with his father, the call of XXXX, 2021, the assault of XXXX, 2021, the attempted kidnapping of XXXX, 2021, and the claimant’s departure to live in hiding with his uncle. I find each of these letters of support to be detailed and reliable accounts of the events in the claimant’ s testimony that they purport to support, with no material inconsistencies. I therefore attach full weight to them, as well as the claimant’s mother’s death certificate. [13] I also accept the vast capabilities, violent activities, and aggressive nature of the CJNG, which is the dominant cartel in the claimant’s home state and the purported agent of harm. The claimant presented as a useful recruit for drug trafficking purposes as he was a XXXX at a XXXX in Colima. This would be a high value position for the CJNG to recruit as part of their efforts to facilitate the transport of drugs through the region and provide an additional base of operations. [14] Accordingly I find, more likely than not, that the claimant credibly faces a prospective risk to his life at the hands of the CJNG should he return to Mexico. The risk he faces is personalized and elevated relative to that of the general population due to the claimant’s profile as a XXXX, his repeated refusals to work for the CJNG in spite of their threats, and his deceased mother and her late partner’s past involvement with the CJNG. Additionally, the claimant’s father wrote in his letter of support that he essentially still lives in hiding, only going to work and then back home, and still receives phone calls from unknown numbers to this day that he believes could be threats from the CJNG (though he has not answered them). State Protection [15] States are presumed to be capable of protecting their citizens except in situations where the state is in a state of complete breakdown.[17] The claimant must rebut this presumption with clear and convincing evidence of the state’s inability to protect its citizens for their claim to succeed. I find that the claimant’s testimony, taken together with the objective country evidence, successfully rebut this presumption and serve as clear and convincing evidence that adequate state protection is not available to the claimant in Mexico. [16] The NDP evidence indicates that police forces in Mexico lack human and material resources to properly investigate crimes and that for all murders registered between 2010 and 2016, 94.8% of cases had no suspect facing charges.[18] According to the 2019 National Survey on Victimization and Perception of Public Safety, 93.2% of all crimes committed were either not reported or not investigated.[19] The NDP also states that 80% of police forces are controlled by criminals, that almost 60-70% are corrupted by organized crime, and that organized crime has infiltrated local police and politicians.[20] Other sources indicate that police at all levels (local, state, and federal) play a role in facilitating illegal businesses, working for organized crime, and systematically violating human rights.[21] Additionally, 59.2% of respondents in a 2019 survey reported that they had experienced an act of corruption with public security authorities.[22] [17] I note that a claimant is not required to risk their life to seek ineffective protection of a state merely to demonstrate that ineffectiveness.[23] The claimant testified that he attempted to go to the district attorney’ s office to report the assault on XXXX, 2021, but saw his assailants’ vehicle in the parking lot when he arrived and decided to turn around. Given the well-documented corruption and inadequacy of state protection by the NDP, I find this course of action to be reasonable. [18] In light of the objective country documentation and the claimant’s testimony about his attempt to seek out state protection, I find that the claimant has rebutted the presumption of state protection and that adequate state protection would not be available to the claimant in Mexico. Internal Flight Alternative [19] I raised the issue of IFA with the claimant at the outset of the hearing and proposed Merida as a viable IFA. I find that the claimant has successfully challenged this IFA under the first prong of the analysis. [20] The Federal Court of Appeal has held that there is a two-pronged test for assessing an IFA.[24] The RPD must be satisfied that: i. There is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or that it is more probable than not that the claimant would not be personally subject to a danger of torture or to a risk to life or risk of cruel and unusual treatment or punishment in the IFA; and ii. The conditions in the 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 claim, for the claimant to seek refuge there. [21] Both prongs of the test must be satisfied to find that a claimant has an IFA. Once the issue of IFA has been raised and potential IFAs have been identified by the RPD, the burden of proof then rests with the claimant to show that they do not have a viable IFA in those locations. First Prong: Prospective Risk o(Harm in the IFA [22] The claimant does not allege a danger of torture at the hands of the state or by a public official. I will therefore focus the first prong of the IFA analysis on whether the claimant has demonstrated that, more likely than not, he faces a prospective risk to his life or of cruel and unusual treatment or punishment in Merida. For the reasons that follow, I find that the claimant has successfully established that he would and therefore that Merida would not be a viable IFA. [23] As stated previously, the NDP indicates that the CJNG has a national presence in Mexico.[25] Additionally, the CJNG has a reported presence in Merida, though the NDP notes that violence there is much lower and criminal groups attempt to keep a low profile.[26] The NDP further indicates that most organized criminal groups have the capacity to find an individual throughout Mexico if sufficiently motivated using family networks, private investigators, property records, GPS trackers, communications networks (e.g., cell phone towers), government databases, and police, army, government contacts, and alliances with other criminal organizations.[27] [24] Accordingly, based on the objective NDP evidence for Mexico and the claimant’s testimony, I find that the CJNG has the capacity to track down the claimant and execute the claimant’s allegations. I now tum to the motivation of the CJNG to use their resources to track down the claimant. [25] The NDP evidence states that motivations for a criminal organization to track an individual down include large unpaid debts, stolen or lost money, personal vendettas or rivalries, political incentives, high-value personnel, people with privileged information about the criminal organization’s operations, perceived betrayal, and cooperation with the authorities.[28] One NDP source writes that the amount of effort expended depends on a person’s value, and that a low-level, easily replaceable taxi driver, for instance, would not likely be tracked.[29] The expert report submitted by the claimant also states that targeting individuals like the claimant who have defied CJNG demands is essential to the group as it stops individuals from questioning the capacity of the CJNG, which would present an existential threat to the cartel.[30] [26] The claimant has a degree in XXXX. He would have presented as a useful recruit to the CJNG for drug trafficking purposes as he was a XXXX at a XXXX in Colima. He claimed that the CJNG wanted to leverage this position as means of transporting drugs using vans. This would be a high value position for the CJNG to recruit as part of their efforts to facilitate the transport and distribution of drugs through the region with complicit supervision, and would provide them with an additional base of operations (the XXXX). The value of the claimant’s position to the CJNG is supported by their persistent efforts to recruit him. First, they tried to do so amicably by stating that he could more easily pay his student debts by working for them, and then switched to violence and coercion when that did not work. They spent 3-4 months trying to recruit him, and as part of their efforts both assaulted him and attempted to kidnap him. He defied each attempt by the CJNG to recruit him, and then fled Mexico. [27] The claimant also has a pre-existing connection with the CJNG through his mother and her partner, who were later violently murdered in XXXX 2022, quite possibly by the CJNG. The claimant testified to overhearing arguments between his mother’ s partner and other members of the CJNG, which he believed to be over money that was owed to the CJNG. This could present additional motivation for the CJNG to track down the claimant due to the personal connection and the potential of an unpaid debt they might attribute to him by virtue of his relationship to his mother. [28] On the basis of the claimant’s profile and the actions taken by the CJNG in his testimony, I find that the CJNG has both the means and the motivation to track the claimant down to the proposed IFA, should he relocate to Merida. Accordingly the claimant has established that, more likely than not, he would face a prospective risk to his life or of cruel and unusual treatment or punishment should he seek refuge there. [29] As the claimant has successfully challenged the proposed IFA under the first prong of the IFA analysis, I find that the claimant does not have a viable IFA in Merida and need not proceed with the second prong of the IFA analysis. CONCLUSION [30] I find that the claimant is a person in need of protection under section 97 of IRPA and therefore accept his claim. (signed) Matthew Stumpf August 17, 2023 [1] Immigration and Refugee Protection Act, SC 2001, c 27, as amended, ss 96, 97(l)(a) and 97(l)(b). [2] Exhibit 1. [3] Exhibit 5, Item 10, p. 33-35. [4] Exhibit 5, Item 9, pp. 30-32. [5] Exhibit 5, Item 5, pp. 16-18. [6] Exhibit 5, Items 6 and 7, pp. 19-26. [7] Exhibit 5, Item 8, pp. 27-29. [8] Exhibit 5, Item 3, pp. 7-9. [9] NDP, Mexico, Tab 7.7 at pp. 1-3: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated to track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021. [10] NDP, Mexico, Tab 7.7 at pp. 4-6: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated to track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021. [11] NDP, Mexico, Tab 7.7 at p. I: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated to track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021; NDP, Mexico, Tab 7.18 at p. 8: Mexico: Crime and criminality. including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available to victims, including witness protection (2018-September 2020). Immigration and Refugee Board of Canada. 21 September 2020. [12] NDP, Mexico, Tab 7.18 at p. 8: Mexico: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available to victims, including witness protection (2018-September 2020). Immigration and Refugee Board of Canada. 21 September 2020. [13] Exhibit 9 at p. 3. [14] Exhibit 9 at pp. 3-7. [15] Exhibit 9 at pp. 2-3. [16] Exhibit 5, Items 3, 5-10. [17] Canada (Attorney General) v Ward, [1993] 2 SCR 689 at 725 [18] NDP, Mexico, Tab 7.18 at p. 16: Mexico: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available to victims, including witness protection (2018-September 2020). Immigration and Refugee Board of Canada. 21 September 2020. [19] NDP, Mexico, Tab 7.18 at p. 18: Mexico: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available to victims, including witness protection (2018-September 2020). Immigration and Refugee Board of Canada. 21 September 2020. [20] NDP, Mexico, Tab 7.8 at p. 13: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated to track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021. [21] NDP, Mexico, Tab 10.2 at p. 3: Mexico: 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. [22] NDP, Mexico, Tab 10.2 at p. 2: Mexico: 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. [23] Canada (Attorney General) v Ward, [1993] 2 SCR 689 at 724. [24] Rasaratnam v Canada (Minister of Employment and Immigration), [1991] FCJ No. 1256, [1992] 1 FC 706 (CA). [25] NDP, Mexico, Tab 7.7 at p. 1: Mexico: The Jalisco New Generation Cartel (Cartel de Jalisco Nueva Generaci6n, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida, Campeche, Mexico City, and Cabo San Lucas; the profiles of people they would be motivated to track and target (2019-August 2021). Immigration and Refugee Board of Canada. 2 September 2021. [26] NDP, Mexico, Tab 7.8 at pp. 2-4: Mexico: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatan state, State of Campeche, and Baja California Sur); the ability and motivation of organized crime groups and cartels active in other areas of Mexico, including the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generaci6n, CJNG), Sinaloa Cartel, and Los Zetas, to track and retaliate against people who relocate to these areas (2019-August 2021). Immigration and Refugee Board of Canada. 8 September 2021. [27] NDP, Mexico, Tab 7.8 at pp. 11-14: Mexico: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatan state, State a/Campeche, and Baja California Sur); the ability and motivation of organized crime groups and cartels active in other areas of Mexico, including the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generaci6n, CJNG), Sinaloa Cartel, and Los Zetas, to track and retaliate against people who relocate to these areas (2019-August 2021). Immigration and Refugee Board of Canada. 8 September 2021; NDP, Mexico, Tab 7.48 at pp. 5-6: Mexico: Cartel recruitment practices, including information on whether taxi, truck or other transportation drivers are particularly targeted for forced recruitment by the cartels; whether there are consequences for refusing to be recruited; ability of the cartels to track recruits throughout the country (2020-August 2022). Immigration and Refugee Board of Canada. 25 August 2022. [28] NDP, Mexico, Tab 7.8 at pp. 11-14: Mexico: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatan state, State a/Campeche, and Baja California Sur); the ability and motivation of organized crime groups and cartels active in other areas of Mexico, including the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generaci6n, CJNG), Sinaloa Cartel, and Los Zetas, to track and retaliate against people who relocate to these areas (2019-August 2021). Immigration and Refugee Board of Canada. 8 September 2021; NDP, Mexico, Tab 7.48 at pp. 5-6: Mexico: Cartel recruitment practices, including information on whether taxi, truck or other transportation drivers are particularly targeted for forced recruitment by the cartels; whether there are consequences for refusing ta be recruited; ability of the cartels ta track recruits throughout the country (2020-August 2022). Immigration and Refugee Board of Canada. 25 August 2022. [29] NDP, Mexico, Tab 7.48 at p. 5: Mexico: Cartel recruitment practices, including information on whether taxi, truck or other transportation drivers are particularly targeted for forced recruitment by the cartels; whether there are consequences for refusing ta be recruited; ability of the cartels ta track recruits throughout the country (2020-August 2022). Immigration and Refugee Board of Canada. 25 August 2022. [30] Exhibit 9 at pp. 6-7.