TC0-09872

RAD File / Dossier de la SAR : TC0-09872 TC0-09873 / TC0-09874 / TC0-09875 TC0-09876 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision January 22, 2021 Date de la décision Panel Desiree Pachkowski Tribunal Counsel for the persons who are the subject of the appeal Amedeo Clivio Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal. [2] XXXX XXXX XXXX XXXX (Appellant), XXXX XXXX XXXX XXXX (Associate Appellant), XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (Female Minor Associate Appellants), and XXXX XXXX XXXX XXXX (Male Minor Associate Appellant) are citizens of Mexico. [3] The Appellants ran a XXXX XXXX in Hermosa Provincia, Guadalajara, Jalisco. Members of the Cartel Jalisco Nueva Generación (CJNG) began extorting them in February 2017. The weekly fee steadily increased. When the Appellants could not make a payment, members of the CJNG abducted the Appellant. They raped and threatened her. They threaten to kill all the Appellants and rape the Female Minor Associate Appellants. [4] The Appellants relocated twice within Mexico. First, the Associate Appellant relocated on his own to Tepic, Nayarit. Later, the whole family relocated to Durango City, Durango. In both cases, CJNG members found and threatened them. The Appellants stayed in hiding in Chapala with the help of a friend. They travelled to Canada in XXXX 2018. While in Canada, they filed a police report in Mexico with the help of a Mexican lawyer in 2019. The Appellant's mother was attacked and threatened three days later. The Appellants made a claim for refugee protection in June 2019. [5] The Refugee Protection Division (RPD) found that the Appellants had a viable internal flight alternative (IFA) in Campeche City, Campeche, and Mérida, Yucatan. The RPD found that the CJNG did not have a presence in these areas nor the motivation to find the Appellants. [6] After an independent review of the record, I find that the RPD erred in its decision. The Appellants do not have a viable IFA. They also do not have access to adequate state protection. DECISION [7] The appeal is allowed. [8] I substitute my own decision that the Appellant and Female Minor Appellants (XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) are Convention refugees. [9] I also find that all the Appellants are persons in need of protection. NEW EVIDENCE & ORAL HEARING [10] The Appellants requested an oral hearing. I may hold a hearing if there I accept new evidence that raises a serious issue about the Appellants' credibility, which is central to the claim, and would justify allowing or rejecting the claim. I did not hold an oral hearing because there is no new evidence on the record. ANALYSIS [11] My role is to look at all the evidence and decide if the RPD made the correct decision.1 Nexus [12] The RPD considered the Appellants' claims under section 97 of the Immigration and Refugee Protection Act (IRPA), finding that they had not established a nexus to the Convention. [13] The Appellants' Counsel argues that the RPD erred when it did not find that the Appellant had a nexus to the Convention. Counsel argues that even though the initial reason the Appellants were targeted arose out of criminal activity, the Appellant was sexually assaulted because of her gender. Counsel argues that it was incorrect for the RPD to ignore the gendered aspect of the claim. [14] I agree. The Appellants' claims began with a risk to their lives because of criminality. However, the Appellant was raped when the CJNG did not receive their payment. The cartel members also threatened to do the same to the Female Minor Appellants. Although the CJNG members threatened to kill the Associate Appellant, they did not threaten to rape him. The sexual assault and escalating threats of sexual assault are clearly gender-based. It is not speculative to conclude that the Appellant was raped because she is a woman, and the Female Minor Appellants were threatened because of their gender. [15] Counsel relies on Gutierrez2 to demonstrate the Federal Court's approach to cases like the Appellants'. Justice Kelen sets out a compelling summary of jurisprudence that distinguishes sexual assault from other forms of violence. The Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Gender Guideline) refer to rape as a "gender specific" crime.3 Sexual assault is grounded in the status of women in society, and characterized as "an assault on human dignity and constitutes a denial of any concept of equality for women".4 Additionally, the belief "that rape can be merely motivated by common criminal intent or desire, without regard to gender or the status of females in society is wrong according to Canadian law".5 [16] In Gutierrez, a woman and her family were originally victims of crime. However, the crime led to the woman's sexual assault at the hands of police officers. Justice Kelen found that the Board erred when it did not consider the claim under section 96, nor the Gender Guidelines as they apply to section 96. [17] The Appellant's case is comparable to Gutierrez. Although the Appellant did not clearly express a gender-based risk, it "clearly arose as a distinct basis of claim from her narrative".6 The Appellant was subjected to sexual assault. The CJNG threatened to sexually assault the female Minor Associate Appellants. These actions and threats were reserved specifically for the women and girls in this claim and are clearly gender-based. [18] When I apply the Gender Guideline, I find that the Appellant and her daughters' gender establishes a nexus to the Convention, as gender is an innate and unchangeable characteristic that played a role in her kidnapping and assault.7 In arriving at this conclusion, I note that the Gender Guideline advises that "the fact that the particular social group consists of a large number of the female population in the country concerned is irrelevant [emphasis in document]"8 and that "a gender-related claim cannot be rejected simply because the claimant comes from a country where women face generalized oppression and violence [...]".9 Finally, I find that although the reasons for the persecution and threat to the Appellant and her daughters' lives are mixed, they are partially related to a Convention ground and should be assessed as such.10 [19] I find that the Appellant and the Female Minor Appellants (XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) have a nexus to the Convention because of their membership to a social group: women. [20] I disagree with Counsel's argument that the Associate Appellant and the male Minor Associate Appellant should also be assessed under s.96 as family members of a people who face persecution on a Convention ground. [21] In my view, the risk faced by the Appellant Associate and Male Minor Associate Appellant is independent from the gender-based risk that the other Appellants face. The Appellants face a risk to their lives [22] In addition to the nexus established above for the Appellant and her daughters, I find that all the Appellants face a section 97 risk in Mexico, on a balance of probabilities. They face a personalized risk to their lives because of their specific personal interactions with members of CJNG. The risk is not faced generally by the Mexican population because it is defined by the Appellants' specific history with CJNG, which included violent repercussions and escalating threats for their refusal to pay the extortion fee. Credibility [23] The Appellants arrived in Canada in XXXX 2018. They made a refugee claim in June 2019. The RPD found that the Appellants' delay in making a claim for refugee protection detracted from their credibility. [24] However, the RPD ultimately did not find the delay sufficient to impugn the Appellants' credibility. The RPD considered the Appellants to be credible witnesses. The RPD accepted their allegations on a balance of probabilities. [25] I have no credibility concerns. The Appellants' testimony was internally consistent with their documentary evidence. As will be discussed in detail in my IFA analysis, the Appellants' accounts of their experiences with the CJNG align with the objective documentary evidence. This enhances their credibility. [26] In any case, I also find that the RPD erred in its analysis of the Appellants' delay in making a claim for refugee protection. It is established in law that decision makers must consider the Appellants' explanation for not making a claim, as well as their personal circumstances including their education level, travel history and understanding of the immigration process.11 The RPD was not satisfied by the Appellants' explanation that they did not know the length of their authorized stay, nor whether they were eligible to apply for refugee protection.12 However, the RPD did not consider the Appellants' explanation for their delay within the context of their profiles. [27] The Appellant and Associate Appellant did not finish their secondary studies. The Appellant testified that she finished junior high school. Her Schedule A form indicates that she studied for a total of 9 years.13 The Associate Appellant's Schedule A form indicates that he completed one year of prep school.14 The average Mexican citizen completes 14 years of school.15 It is clear that the Appellants are not highly educated. The Appellants' passports indicate that they do not have any travel history.16 Their applications for United States Non-Immigrant Visas were rejected. On a balance of probabilities, I find it plausible that they had minimal knowledge of the immigration process. There are no other inconsistencies on the record to indicate that the Appellants may lack credibility. [28] After considering the Appellants' personal circumstances along with their explanation for why they did not immediately make a claim for refugee protection in Canada, I do not draw a negative credibility inference. The IFA is not safe [29] After an independent review of the record, I find that the RPD erred in its IFA analysis. Campeche, Campeche and Merida, Yucatan are not safe IFAs for the Appellants for the following reasons. [30] There are two parts of the legal test for assessing an IFA.17 [31] First, I must be satisfied, on a balance of probabilities, that there is no serious possibility of the Appellants being persecuted, and/or no danger of torture, risk to life, or risk of cruel and unusual treatment or punishment in the proposed IFA locations. [32] Once an IFA has been identified, the Appellant is responsible for demonstrating that the IFA is unsafe or unreasonable. The RPD is also expected to consider the latest objective documentary evidence in its IFA analysis. [33] The Federal Court cautioned recently against selectively referring to the objective documentary evidence in Castillo Garcia.18 In Castillo Garcian, the RPD and the Refugee Appeal Division (RAD) found the Appellant's testimony credible but both divisions found an IFA in Cancun by relying selectively on a map that did not place their agents of persecution in Cancun and ignoring other evidence. The Federal Court did not find the RAD's decision reasonable. I have considered this jurisprudence in my analysis because of its similarities to the Appellants' cases. [34] The Appellants' Counsel submits that the RPD erred in finding that the CJNG does not have a presence in Campeche and Yucatan. Counsel refers to objective documentary evidence that establishes that the CJNG are active throughout these states. [35] Counsel argues that the CJNG can track the Appellants throughout the country. Counsel argues that the CJNG has demonstrated that it has an ongoing interest in harming the Appellants because it tracked them down after they moved to Durango and attacked the Appellant's mother in 2019. [36] Counsel argues that the RPD engaged in baseless speculation when it opined that the CJNG would reserve its capacity to undertake a nationwide search for higher profile targets than the Appellants.19 Counsel argues that the objective documentary evidence contradicts the RPD's assertion. [37] I agree with Counsel's submissions. [38] The RPD conducted a review of the documentary evidence. Based on the totality of the evidence, the RPD concluded that the CJNG did not have a presence in the IFAs on a balance of probabilities. [39] However, the RPD ignored a document dedicated explicitly to the activities and influence of the CJNG.20 This document is titled "The Strategic Implications of the Cártel de Jalisco Nueva Generación" and is listed as item 7.17 in the current National Documentation Package (NDP) for Mexico. [40] Although this document was not available in the NDP that is listed in the Consolidated List of Documents that were before the RPD at the hearing, it was included in the new NDP that was issued on February 28, 2020. The RPD's decision was issued on July 17, 2020. The RPD is expected to have consulted the most recent version of the NDP in its reasons.21 This is particularly important when there is evidence that directly contradicts the RPD's findings of fact.22 Since this is the case before me, I find that the RPD erred by ignoring the following evidence. [41] The documentary evidence establishes that the CJNG are Mexico's largest and most powerful Organized Crime Group (OCG).23 They are present in every state in Mexico through alliances or physical presence.24 They have extensive resources and have demonstrated their capacity to infiltrate state authorities.25 The RPD accepted CJNG's capacity and national reach to a certain degree.26 [42] The RPD noted that the CJNG has alliances with other OCGs in Durango state. The RPD used this rationale to suggest different IFAs for the Appellants.27 Using this reasoning, RPD appears to have accepted that the CJNG may have located the Appellants in Durango through these alliances. Counsel correctly points out that the RPD ignored other evidence that indicates that CJNG maintain alliances with OCGs that maintain presence in the IFA locations. [43] The CJNG maintains various alliances with OCGs throughout Mexico.28 In Yucatan, the CJNG is disputing leadership with rivals or has an alliance. In Campeche, they have allied with La Familia to fight the Gulf Cartel.29 The CJNG has also demonstrated that it can fight an OCG in one location while maintaining a relationship with the same group against common enemies in another area.30 [44] In any case, the documentary evidence states that OCGs maintain fluid presence in states throughout Mexico that is subject to change.31 For this reason, it is important to consider the case-specific information regarding the CJNG's demonstrated motivation to pursue the Appellants throughout Mexico. [45] In my view, the CJNG's past behaviour is a relevant basis to evaluate their motivation to pursue the Appellants. First, I note that there are no credibility problems on the record, meaning that the Appellants are owed the presumption of truthfulness. Second, I note that the CJNG threatened the Appellants on multiple occasions. They located them in two different states: Nayarit and Durango. Although Nayarit is relatively close to the Appellant's home state of Jalisco, the Appellants correctly point out that Durango City is approximately 8 hours driving distance from their original home. I also note that members of the CJNG assaulted and threatened the Appellant's mother in early 2019. After considering this evidence, I find that it establishes that the CJNG remain interested and motivated to find them, on a balance of probabilities. [46] The Appellants correctly point out that the RPD did not provide a reference for its assertion that OCGs only use their resources to track high-profile targets.32 The documentary evidence does not establish this fact. Although there may be other cases where the facts of the record demonstrate that a given OCG does not have the motivation to pursue a specific target, this could occur for many reasons. Furthermore, the Appellants' personal experiences with CJNG indicate that the OCG was motivated to use their resources to pursue them outside of their territory, as described above. [47] After considering the evidence before me, I find that the CJNG have the means and the motivation to search for the Appellants in the IFA locations, on a balance of probabilities. As such, on a balance of probabilities, I find that the Appellant and her daughters (XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) face a serious possibility of gender-based persecution in the form of sexual assault in the IFAs. Also, on a balance of probabilities, I find that all the Appellants face to a risk to their lives in the proposed IFA locations. No adequate state protection [48] The RPD did not consider state protection determinative of the Appellants' claims. However, the RPD still conducted an analysis of state protection, finding that the Appellants did not provide sufficient evidence to establish that they would not have access to state protection, on a balance of probabilities. [49] The Appellants' Counsel argues that the RPD did not provide any basis for this finding. Counsel argues that the RPD ignored the objective documentary evidence, which demonstrates that there is inadequate state protection in Mexico. Counsel submits that good intentions or legislation do not establish that state protection exists. [50] The Appellants did not seek protection while they were in Mexico because they were afraid that the CJNG operates in collusion with the police. When the Appellants filed a police report, the Appellant's mother was threatened and assaulted. [51] The documentary evidence confirms that OCGs seek to dominate and collude with law enforcement in Mexico.33 OCGs "can use 'corrupt law enforcement agents' to obtain information about people they pursue".34 The CJNG is capable of confronting and corrupting the Mexican state at all levels of government, using a "bribes or bullets" strategy with state authorities and has a history of infiltrating and dominating police forces.35 [52] Police in Mexico lack the necessary resources to properly investigate crimes. Criminals often enjoy impunity. Police officers are targeted by and collude with OCGs. In 2019, President Andrés Manuel López Obrador created the Guardia Nacional, a new security force to fight OCGs. However, the organization has "failed to address criminality in a measurable way."36 [53] After considering the evidence before me, I do not find that the Appellants have access to state protection in Mexico. CONCLUSION [54] The appeal is allowed. [55] I substitute my own decision that the Appellant and Female Minor Appellants (XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) are Convention refugees. [56] I also find that all the Appellants are persons in need of protection. (signed) Desiree Pachkowski Desiree Pachkowski January 21, 2021 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Gutierrez v. Canada (Citizenship and Immigration), 2011 FC 1055 (CanLII) 3 The Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Guidelines continued in effect by the Chairperson on June 28, 2002, under ss. 159(1)(h) of the IRPA (the Gender Guidelines) 4 Ibid, at para 41; Josile v. Canada (Citizenship and Immigration), 2011 FC 39, at para. 25; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 at para 165 5 Gutierrez v. Canada (Citizenship and Immigration), 2011 FC 1055 (CanLII), at para .41; ; Josile v. Canada (Citizenship and Immigration), 2011 FC 39, at para. 24; Dezameau v. Canada (Citizenship and Immigration), 2010 FC 559, at para. 35. 6 Pardo Quitian v. Canada (Citizenship and Immigration), 2020 FC 846 7 The Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Guidelines continued in effect by the Chairperson on June 28, 2002, under ss. 159(1)(h) of the IRPA (the Gender Guidelines), part III, Application of a Statutory Ground. 8 Ibid, at para. 2. 9 Ibid, at Section B. 10 Flores v. Canada (Minister of Citizenship and Immigration), 2002 FCT 893 (CanLII) at para 10 11 Chen v. Canada (Citizenship and Immigration), 2019 FC 334 (CanLII), at para. 24. 12 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at p. 8 at para.18. 13 Exhibit RPD-1, RPD Record, Schedule A Form, at p.118. 14 Ibid, at p. 124. 15 Exhibit RAD-1, RAD Record, National Documentation Package (NDP) for Mexico, 30 September 2020, at tab 1.2: ?Mexico. The World Factbook. United States. Central Intelligence Agency. 10 September 2020., at p. 7. 16 Exhibit RPD-1, RPD Record, Copies of passports, at pp. 133 - 152. 17 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No 1172, [1994] 1 F.C. 589 (F.C.A); and, Rasaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1256, [1992] 1 F.C. 706, 140 N.R. 138 (F.C.A). 18 Castillo Garcia v. Canada (Citizenship and Immigration), 2019 FC 347 (CanLII) 19 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at p. 13 at para. 36. 20 Ibid. 21 Sivapathasuntharam v. Canada (Citizenship and Immigration), 2012 FC 486 (CanLII), at para. 22. 22 Ibid, at para. 23. 23 Exhibit RAD-1, RAD Record, National Documentation Package (NDP) for Mexico, 30 September 2020, at tab 7.17: The Strategic Implications of the Cártel de Jalisco Nueva Generación. Journal of Strategic Security. Nathan P. Jones. 2018, at pp. 20 and 26; at tab 7.2: Mexico: Organized Crime and Drug Trafficking Organizations. United States. Congressional Research Service. June S. Beittel. 28 July 2020. R41576, at p. 17. 24 Exhibit RAD-1, RAD Record, National Documentation Package (NDP) for Mexico, 30 September 2020, at tab 7.17: The Strategic Implications of the Cártel de Jalisco Nueva Generación. Journal of Strategic Security. Nathan P. Jones. 2018, at p. 27. 25 Ibid, at p. 20, 26. 26 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at p.12 at para. 32; at p.13 at para.36 . 27 Ibid, at p. 11 at para. 25. 28 Exhibits RAD-1, National Documentation Package (NDP) for Mexico, 30 September 2020, tab 7.17 The Strategic Implications of the Cártel de Jalisco Nueva Generación. Journal of Strategic Security. Nathan P. Jones. 2018, at pp. 28 - 32. 29 Ibid. 30 Ibid, at pp. 32 -33. 31 Ibid, at p. 28. 32 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at p.13 at para.36. 33 Exhibit RAD-1, RAD Record, National Documentation Package (NDP) for Mexico, 30 September 2020, at 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., at p.12 34 Ibid, at p. 10. 35 Ibid, at p.20 and 26. 36 Exhibit RAD-1, RAD Record, National Documentation Package, Mexico, 30 September 2020, tab 7.18: 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. MEX200313.E, at pp. 13 - 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-09872 TC0-09873 / TC0-09874 / TC0-09875 TC0-09876 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français