TC0-09838

RAD File / Dossier de la SAR : TC0-09838 TC0-09839 / TC0-09840 / TC0-09841 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 XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX(A.K.A. XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision January 19, 2021 Date de la décision Panel Desiree Pachkowski Tribunal Counsel for the persons who are the subject of the appeal Marcia A Pritzker Schmitt 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 (Associate Appellant), and XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX (Minor Associate Appellants) are citizens of Mexico. [3] The Appellants were extorted and threatened by Los Zetas in 2010 and 2018. The Appellants fled Mexico after receiving threatening phone calls in 2018. [4] The Refugee Protection Division (RPD) found that the Appellants had a viable internal flight alternative (IFA) in Cancun. [5] The Appellants argue that the RPD erred in its decision. They argue that the RPD's decision was not transparent. They argue that Cancun is not a safe IFA because Los Zetas are present in this region. They argue that Los Zetas demonstrated that they could find them in 2018. They argue that an IFA in Cancun is not reasonable for them. [6] IFA is the determinative issue in this case. After an independent review of the record, I find that the RPD erred in its assessment. The Appellants do not have a viable IFA in Mexico. DECISION [7] The appeal is allowed. I substitute my own decision that the Appellants are persons in need of protection. BACKGROUND [8] The Appellants are from Coatzacoalcos, Veracruz State, Mexico. The Appellant worked as an XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant and his brother also owned a restaurant in Coatzacoalcos. Members of Los Zetas began extorting them in July 2010, asking for 10,000 Mexican Pesos every month. Unable to pay, the Appellant and his brother eventually closed the restaurant. [9] The Appellant was assaulted by police officers without cause in December 2010. He believes these police officers were affiliated with Los Zetas. [10] The Appellant's brother went missing in 2011 and has not been seen since. [11] Fearing for their safety, the Appellants moved in 2011 and 2012. They moved to a different, inconspicuous residence within the same city both times. They kept a low profile. [12] After some time, the Appellant's wife began managing her father's XXXX in Coatzacoalcos in 2014. The Appellant resigned from XXXX in 2016 to help run the XXXX. [13] In July 2018, three men went to the XXXX and asked for the Appellant by name. The Appellant was not there. Weeks later, the Appellant received a threatening phone call demanding that he pay for all the time that he had been working or that he would "regret [his] whole life".1 [14] The Appellant stopped using his phone. The Appellants relocated to Veracruz City. The Appellant received another threatening call on his new phone. The caller threatened to find him wherever he went in Mexico. [15] The Appellants fled to Canada approximately 3 months after receiving this call. NEW EVIDENCE & ORAL HEARING [16] The Appellants did not request an oral hearing. I may hold a hearing if I accept new evidence that raises a serious issue about the Appellants' credibility, which is central to the claim, and if accepted would justify allowing or rejecting the claim. I did not hold an oral hearing because there is no new evidence on the record. ANALYSIS [17] My role is to look at all the evidence and decide if the RPD made the correct decision.2 The Appellants face a risk to their lives in Mexico [18] The RPD considered the Appellants' claims under section 97, finding that they had not established a nexus to the Convention. I agree with the RPD. [19] 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 Los Zetas. The risk is not faced generally by the Mexican population because it is defined by the Appellants' specific history with the Los Zetas, which included violent repercussions and escalating threats for their refusal to pay the extortion fee. The IFA is not safe [20] After an independent review of the record, I find that the RPD erred in its analysis. Cancun is not a safe IFA for the Appellants for the following reasons. [21] There are two parts of the legal test for assessing an IFA.3 [22] 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. [23] Once an IFA has been identified, the Appellant is responsible for demonstrating that the IFA is unsafe. The RPD is also expected to consider the latest objective documentary evidence in its IFA analysis. [24] The Federal Court recently cautioned against selectively referring to the objective documentary evidence in a case like the Appellants'.4 In that case, the RPD and the Refugee Appeal Division (RAD) found the Appellant's testimony credible. However, both divisions found an IFA in Cancun by relying selectively on the map that did not place Los Zetas 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 of the Appellants' cases. Some of the RPD's findings do not have a basis of reference [25] The Appellants argue that the RPD made several findings without any basis of reference. These findings are examined as follows. No evidence that Los Zetas can no longer co-ordinate across territories [26] The RPD concluded that Los Zetas could no longer co-ordinate across large pieces of territory because it the organization is fragmented.5 The RPD did not include a reference for this statement. [27] The objective documentary evidence states that Los Zetas are fragmented into cells that do not communicate with each other.6 However, it does not state that the Organized Crime Group (OCG) is unable to coordinate itself the way it once did, as the RPD asserts. In fact, the objective documentary evidence states that decentralization of the OCG does not necessarily indicate that the criminal group is weak. Rather, it indicates that they lack a strong central leadership, and may be even more violent as a result. It is also of note that news outlets are threatened by OCG cells and are reluctant to report on their crimes, making it difficult to track their presence.7 [28] Despite reports that the cells of Los Zetas may not communicate or be under centralized leadership, other more detailed reports about the communications capacity of Los Zetas say otherwise. Los Zetas appear to have maintained their elaborate communications infrastructure within Mexico. They have demonstrated their capacity to reassemble communication networks dismantled by police.8 They use ground-level informants to collect intelligence, including on people who move to a new neighbourhood.9 Los Zetas maintain alliances with other OCGs, increasing their geographic presence.10 [29] Los Zetas can track people outside of their area of control and are motivated to do so when they believe their targets owe them money. 11 I note the Appellant's credible testimony that members of Los Zetas believe that he owes them money. [30] In sum, the RPD erred when it asserted that Los Zetas could no longer co-ordinate across large pieces of territory because it is fragmented. I set aside this incorrect finding. Tourist destinations do not have special protection from the Mexican government [31] The RPD opined that "because Cancun is the epicenter of the Mexican tourist industry, the Mexican government has taken steps to ensure that cartel activity in this area is kept to a minimum in that city"12 [32] This assertion is an error. There is no support for this conclusion in the documentary evidence. Without a basis of reference, this statement reflects the RPD's opinion. This opinion appears to be based on a conscious or unconscious stereotype or belief related to tourist destinations in Mexico. This is not a valid basis for a finding that is integral in an IFA analysis. [33] The objective documentary evidence directly contradicts the RPD's assertion. [34] Although the objective documentary evidence contains a map13 that does not place Los Zetas in Cancun, this map also contains an annotation which states that it is "subject to change" due to the fluid nature of OCGs in Mexico.14 This is echoed elsewhere in the objective documentary evidence, which states that OCGs and their alliances change quickly and are difficult to track.15 For example, I note that Los Zetas formed an alliance with Cartel Jalisco Nueva Generacion (CJNG), the Gulf Cartel, Guerreros Unidos, and Los Pelones in 2015.16 This is also illustrated by a map published in January 2020, which places Los Zetas (and other OCGs) in Cancun.17 [35] Additionally, Cancun is in the municipality of Benito Juarez, which the objective documentary evidence categorizes as one of the top ten most violent municipalities in Mexico.18 Although the presence of generalized violence does not automatically cause the IFA test to fail, this information further disproves the RPD's theory that the Mexican government maintains extra control over Cancun because it is a tourist destination. [36] The objective documentary evidence clearly illustrates that the RPD erred when it asserted that the Mexican government can somehow control crime in Cancun because it is a tourist destination. I set aside this incorrect finding. The RPD was not transparent [37] The RPD was of the view that Los Zetas would not find the Appellants if they moved to a different state 1,100 kilometers away and the Appellant changed his phone. The RPD expressed this opinion after considering that the Appellants were able to live undisturbed in their hometown for eight years and were not located until 2 years after the Appellant started working in the XXXX. [38] The RPD's basis for finding that the Appellants would be safer if the changed their phone number is not transparent or clearly linked to the observations preceding or following it in the RPD's reasons. [39] The Appellants' narrative states that they received threatening calls after the Appellant changed his phone number.19 The RPD did not ask the Appellant about whether he changed his phone number. The RPD did not make a credibility finding about the Appellant's change of phone number. [40] The RPD's finding that an IFA would be more viable for the Appellants if they changed their phone numbers is not grounded in evidence and therefore incorrect. I set aside this incorrect finding. Los Zetas were motivated to find and threaten the Appellants after eight years [41] In my view, it is important to consider how the facts of a case interact with the objective documentary evidence. There may be situations where an OCG threatens an Appellant and maintains a presence in a proposed IFA, but the facts of the case indicate that the OCG does not have the motivation to search for the Appellant. [42] However, I do not find that this is the case for the Appellants. It is true that the Appellant managed to live unbothered while he worked at XXXX. However, the Appellants described precautions they took during this time. They moved twice. When they relocated, they moved to inconspicuous homes that they described as run down. They spent most of their time in church because they felt safer there than at home.20 It is unclear how Los Zetas eventually located the Appellant. However, when they managed to find him, they asked for him by name and expressed anger that he had not paid them for years. [43] The RPD assumed that Los Zetas only located the Appellants because they were entrepreneurs. In my view, this is speculative. In contrast, the Appellants testified that Los Zetas remembered the Appellant after eight years and remained motivated to threaten him. The RPD did not note any credibility problems - nor do I. Applying the presumption of truthfulness, I accept the Appellant's testimony. I also note that Los Zetas believe that the Appellant owes them something. This motivates them to harm the Appellants.21 [44] While it is true that the Appellant's previous moves within their state are not the same as relocating to a city in another state like Cancun, the Appellants correctly point out that Los Zetas remain active and powerful within Mexico. They maintain presence in Cancun. OCGs maintain fluid presence within Mexico, meaning that their presence is subject to change. [45] When I consider Los Zetas' ongoing interest in the Appellants alongside the objective documentary evidence, I find that Los Zetas have the means and the motivation to locate and harm the Appellants in Cancun, on a balance of probabilities. [46] The Appellants face a risk to their lives in Cancun and throughout Mexico, on a balance of probabilities. State protection not available [47] While states are presumed to be capable of protecting their citizens, I find that the Appellant does not have access to adequate state protection. [48] A group of police and civilians assaulted the Appellant without cause.22 The Appellant believes Los Zetas were working with police. The Appellant did not approach the police for protection because he was afraid. [49] The Appellants' experience with law enforcement in Mexico is in line with the documentary evidence. 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."23 [50] After considering the evidence before me, I do not find that the Appellants have access to adequate state protection in Mexico. CONCLUSION [51] The appeal is allowed. I substitute my own decision that the Appellants persons in need of protection. (signed) Desiree Pachkowski Desiree Pachkowski January 19, 2021 Date 1 Exhibit RPD-1, RPD Record, BOC Narrative, at p. 24 at para.44 . 2Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 3 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). 4 Castillo Garcia v. Canada (Citizenship and Immigration), 2019 FC 347 (CanLII) 5 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at p. 8 at para. 34. 6 Exhibit RAD-1, RAD Record, National Documentation Package, Mexico, 30 September 2020, tab 7.2: ?Mexico: Organized Crime and Drug Trafficking Organizations. United States. Congressional Research Service. June S. Beittel. 28 July 2020. R41576.NDP for Mexico. at p. 22. 7 Ibid, see footnote 100 within NDP document. 8 Exhibit RAD-1, RAD Record, National Documentation Package, Mexico, 30 September 2020, 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. 9. 9 Ibid. 10 Ibid at p. 10. 11 Ibid at pp. 9 - 10. 12 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at p. 8 at para. 37. 13 Exhibit RAD-1, RAD Record, National Documentation Package, 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 p. 28 14 Ibid. 15 Supra, endnote 8, at p. 1. 16 Supra, endnote 13, at p. 33. 17 Supra, endnote 6, at p. 5. 18 Exhibit RAD-1, RAD Record, National Documentation Package, Mexico, 30 September 2020, tab 7.9: ?Organized Crime and Violence in Mexico. Analysis Through 2018. University of San Diego. Justice in Mexico Project. Laura Calderón et al. April 2019., at p. 22 19 Exhibit RPD-1, RPD Record, BOC Narrative, at p. 24 at para. 44. 20 Ibid, at pp. 21 - 24. 21 Supra, endnote 8, at p. 10 22 Exhibit RPD-1, RPD Record, BOC Narrative, at p. 22 at para. 20. 23 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 : TC0-09838 TC0-09839 / TC0-09840 / TC0-09841 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