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2020 RLLR 26

Citation: 2020 RLLR 26
Tribunal: Refugee Protection Division
Date of Decision: March 12, 2020
Panel: R. Bebbington
Counsel for the Claimant(s): Hannah Lindy
Country: Mexico
RPD Number: TB9-14699
Associated RPD Number(s): TB9-14767
ATIP Number: A-2021-00540
ATIP Pages: 000151-0000156


REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claims of [XXX], [XXX], who claim to be citizens of Mexico, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1

[2]       In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.2

ALLEGATIONS

[3]       The female claimant alleges that her ex-partner is a member of the Los Zetas cartel in Mexico and she is a victim of domestic abuse. Should she return to Mexico she alleges her life is at risk. The complete allegations are set out in the Basis of Claim (BOC) Form,3 as well as the BOC amendments.4

DETERMINATION

[4]       I find, on a balance of probabilities, that you would be subjected personally to a risk to your lives or to a risk of cruel and unusual treatment or punishment, should you return to Mexico, for the following reasons.

ANALYSIS

[5]       The determinative issue(s) in this case are credibility, state protection, internal flight alternative.

Identity

[6]       I find that your identity as nationals of Mexico is established by your testimony and the supporting documentation filed including your passports.

Credibility

[7]       Unless specifically noted in the analysis below, I accept your evidence about your allegations of domestic abuse and the events associated with it that you encountered in Mexico as being generally credible.

[8]       The Refugee Protection Division (RPD) Rules require claimants to provide acceptable documents establishing their identity and other elements of the claim. I have drawn a negative inference to the credibility of your allegation that the Agent of Persecution (AOP) is a Los Zetas cartel member. You have not provided sufficient persuasive evidence that would reasonably be expected to identify this individual, nor a reasonable explanation why you were not able to obtain them.

[9]       You were questioned about providing documentary proof of the identity of [XXX], the alleged agent of persecution (AOP). The panel acknowledges that the AOP’s name appears on the copy of the birth certificates for your children, but I find beyond this you have provided little support to establish his identity or his identity as a member of the Los Zetas cartel.

[10]     You have provided a series of medical reports from [XXX] 2013,5 as well as a series of 2011 police witness statements from neighbours that state that they have witnessed bruising on the claimant.6 The witnesses describe the claimant’s partner ([XXX]) as an aggressive and threatening individual, much like his father and friends he associates with. The same documents contain another statement from a neighbour that describes the claimant’s partner as a drunk and aggressive. You have also provided a copy of a lawyer’s letter dated in 2011, that describes a statement from the claimant about the AOP and the abuse she has experienced. The letter states the claimant identified that her partner belonged to the “Zetas” cartel. I would note that this statement is simply based on self-reporting from the claimant.

[11]     The Panel finds upon review of all of the evidence, on balance there is insufficient persuasive evidence to confirm the alleged AOP is a member of a cartel and anything more than a local thug who has abused you. I find this lack of evidence to be unreasonable because of your long-term relationship with this individual, as well as your alleged long term and continued contact with his family members. In addition, your statements at the hearing and in your amended BOC narrative confirmed that all of your neighbours and a number of your friends and relatives have interacted with this individual. Yet, when questioned about obtaining additional affidavits from any of those individuals you testified that you had not considered it. I find on a balance of probabilities that you have not provided evidence to confirm the identity of the AOP as a member of the Los Zetas cartel and that your problems are limited and local to your home area of Oaxaca.

Contact With the AOP

[12]     You have alleged that you continue to receive threatening messages from the AOP. When you were asked to explain how and when you received these messages you stated they came in the form of Facebook messages. I note that you have provided copies of photographs of messages from your telephone or tablet.7 Upon examining these messages, the panel notes the name of the individuals on the text is not that of the AOP. I further note that there is no way to ascertain the contact information or identity of the individual who sent the messages. The claimant described that the AOP was using an alias, the panel is unable to assess whether that is true or not. The panel places little evidentiary weight on the copies of photographs of the text messages submitted in evidence. Therefore, I draw a negative inference concerning your credibility by reason of your failure to adduce corroborating documentary evidence as to the association ofyour partner with the Los Zetas cartel and ongoing threats from the AOP.

[13]     You allege that the AOP has been able to locate you on numerous occasions in Mexico. Your testimony and statements confirm that you have maintained social media profiles where you have received messages and threats from the AOP. You have confirmed in your evidence that you have corresponded with the AOP when receiving these messages. You have further confirmed in your evidence that you have maintained contact with the sister and mother of the AOP, yet you state they are not interested in assisting you. I find it reasonable to believe that these interactions could provide the AOP with details as to your location.

Internal flight alternative

[14]     I have considered whether a viable internal flight alternative (IFA), exists for you and the male claimant.

[15]     I acknowledge that the complicating concern in this situation is that you have children with the AOP and at this time the AOP has taken custody of the children. In your BOC narrative, as well as your testimony you confirm that should you return to Mexico you will continue to make efforts to contact your children and seek some form of custodial relationship.

[16]     The female claimant testified that in the past the AOP has threatened to kill her or the children if she starts custody proceedings against him. The panel acknowledges Counsel’ s submission that if the female claimant initiates legal proceedings in Mexico, she would have to face the AOP, and he would be able to easily locate her.

[17]     The Federal Court has found that the Board cannot find an IFA is available or reasonable where a condition of its viability is that the claimant does not try to get custody of her children. The Court in Calderon8 found it would be “unduly harsh and unreasonable to expect the [claimant] to foreswear any efforts or attempts to re-secure custody of her young children.” That particular case involved a similarly situated claimant from Mexico.

[18]     I find in considering the fact that you will and should pursue custody of your children that there are no other parts of the country, where you would not face a risk to your life or a risk of cruel and unusual treatment or punishment. Hence the concept of a viable IFA will not stand.

State Protection

[19]     The objective documentary evidence states:

The Bertelsmann Stiftung mentions in its 2016 Mexico Country Report that there are “thousands of unresolved crimes of violence against women in many regions….” In its world report covering the year 2015, Freedom House notes that perpetrators of domestic violence “are rarely punished.” The report continues to state: “Implementation of a 2007 law designed to protect women from such crimes remains halting, particularly at the state level, and impunity is the norm for the killers of hundreds of women each year.”9

[20]     The panel finds that the documentary evidence supports a finding that state protection in respect of gender-based violence in Mexico can be described as limited at best. The literature describes efforts to address a long-standing culture of acceptance of domestic abuse, but despite strong existing legislation protecting women’s rights and preventing violence against women, enforcement varies widely and largely depends on social norms, pointing to potential gaps between the de jure laws and the de facto practices.10

[21]     The panel finds that in the particular circumstances of this claim that adequate state protection would not be reasonably forthcoming.

CONCLUSION

[22]     Based on the analysis above, I conclude that you are persons in need of protection. Accordingly, I accept your claims.

(signed)           R. Bebbington

March 12, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, sections 96 and 97(1).
2 Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
3 Exhibit 3, Basis of Claim (BOC) Form, TB9-14699, received June 6, 2019.
4 Exhibit 5, BOC Amendments, received February 2, 2020; Exhibit 8, BOC Amendments, received February 3, 2020.
5 Exhibit 6, Claimant’s Personal Disclosure, received January 27, 2020, at pp. 25-31.
6 Ibid., at pp. 16-24.
7 Ibid., at pp. 32-46.
8 Calderon, Sonia Blancas v. M.C.I. (F.C., no. IMM-5367-08), Near, March 8, 2010, 2010 FC 263, para. 17.
9 Exhibit 3, National Documentation Package (NDP) for Mexico (August 30, 2019), Item 5.3, s. 3.
10 Ibid., Item 5.11, s. Protecting Women from Violence.