Date(s) of Hearing: November 19, 2007
Date of Decision: November 26, 2007
Coram: S. Alidina
For the Claimant(s): Hamsa Kisaka
Tribunal Officer: n/a
Designated Representative: n/a
Counsel for the Minister: n/a
XXXXX XXXXX XXXXX is a citizen of Mexico. He claims to be in need of refugee protection pursuant to sections 96, 97(1)(a) and 97(1)(b) of the Immigration and Refugee Protection Act (IRPA).
The claimant alleges that he worked as a XXXXX at his family XXXXX during the daytime and worked as a XXXXX XXXXX in the evenings. An individual known as XXXXX XXXXX XXXXX, who belonged to a gang involved in drugs, wanted the claimant to work with him. By doing so, XXXXX told the claimant that he would be able to turn his family XXXXX business into a franchise and would personally become rich.
Because the claimant refused to work with XXXXX, he was targeted by him and his accomplices. XXXXX and his accomplices used guns to issue death threats to the claimant. Towards the end of XXXXX 2006, the claimant made one attempt to file a report against XXXXX and his accomplices with the judiciary police, but he received no assistance from them because of lack of sufficient evidence. The claimant felt that state protection from Mexican state authorities would not be forthcoming since XXXXX was associated with corrupt members of the security forces.
The determinative issue in this case is state protection. In making the assessment in this claim, the panel considered the claimant's oral and written testimony, his counsel's submissions and all of the other documentary evidence entered at the hearing. The panel particularly considered the documentary evidence pertaining to measures dealing with crime, including drug related crime and corruption, as well as evidence about the police, the availability of mechanisms for lodging complaints and, in general, the level of democracy in Mexico.
Based on the evidence adduced and for the following reasons, the panel finds that there is adequate state protection for the claimant should he be returned to Mexico. The panel finds that the claimant has not met the burden of establishing "clear and convincing" proof of lack of state protection for individuals like him in Mexico.
The law states that there is a presumption that a state is capable of protecting its citizens. The claimant may rebut this presumption by providing "clear and convincing" proof of lack of state protection in the country of origin. The claimant must approach his or her state for protection, providing state protection might be reasonably forthcoming. 1
Evidence that protection being offered is not necessarily perfect 2 is not clear and convincing proof of the state's inability to protect its citizens, as no government can guarantee the protection of all its citizens at all times. However, where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact it is not always successful at doing so will not be enough to justify a claim that the victims are unable to avail themselves of protection. 3
When the state in question is a democratic state, the claimant must do more than simply show that he or she went to see some member of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of the democracy of the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all courses of action open to him or her. 4
In this case, the claimant testified that he fears XXXXX and his accomplices, some of whom were police officers. With respect to the case at bar, towards the end of XXXXX 2006, the claimant made one attempt to file a report with the judicial police in Mexico. Despite lack of sufficient evidence against XXXXX, the judicial police told him that they would investigate his case. About one week after making a report with the judicial police, the claimant elected to flee from Mexico. Prior to leaving Mexico, neither the claimant nor his family made any effort to follow-up on his complaint with the judiciary police. In this case, the claimant did not wait long enough to see the outcome of the complaint he filed. The claimant indicated that he was dissatisfied with police action. Although the claimant was dissatisfied with police action, he did not make any effort to seek help from state protection mechanisms other than the judicial police in Mexico.
The claimant admitted having knowledge about the existence of the Human Rights Commissions at federal and state levels that take complaints about police misconduct and situations where citizens' rights are violated. He indicated that he did not seek help from them because of fear; instead, he decided to flee from Mexico to resolve his situation. He testified that he had knowledge about the existence of the Federal Agency of Investigations (AFI) that works under the Attorney General's Office and deals with corrupt state officials, drug traffickers and violent kidnappers, but he did not seek help from them because he did not know that they investigated corruption.
The claimant indicated that he had some knowledge about the existence of the Deputy Attorney General's Office of Special Investigations into Organised Crime (SIEDO) that investigates, among other things, drug trafficking, kidnapping and general crimes. He indicated that even if the SIEDO were able to arrest XXXXX, he would not feel safe in Mexico because XXXXX accomplices would target him.
The claimant denied having knowledge about the existence of the Secretariat of Public Administration and Secretariat of Public Services (SFP), where complaints regarding the misconduct and corruption of public employees are reported. He indicated that he had no knowledge about the Telephone Assistance System for Citizens (SACTEL), a 24-hour hotline that takes complaints about the misconduct of public servants and provides updates of the complaints lodged. Ignorance of the complaints mechanisms is no excuse for the claimant's failure to pursue the avenues available to him in Mexico and taking the extreme measure of seeking protection abroad.
It is reasonable for the panel to expect the claimant to seek out the above state agencies to obtain help from them first prior to seeking protection in Canada. In this case, after filing his first report with the judicial police, he did not make any effort to inquire about the outcome of the complaint he lodged, nor did he make any effort to seek help from other state institutions after he was dissatisfied with the action of the police.
The documentary evidence indicates that Mexico is a federal republic with a bicameral legislature. It has the federal and state police, divided into preventive and judicial police. The Federal Preventive Police (PFP) maintain order and public security and the Judicial Police serve as the investigative force under the authority and command of the public ministries (prosecutor's offices). The military is responsible for external security but also has significant domestic security responsibilities, particularly in combating drug trafficking and maintaining order. 5 The country also has a number of other state agencies that address criminality, including drug trafficking, kidnapping and corruption in an effort to assist citizens to obtain state protection.
The claimant, living in a democratic country, is obliged to attempt to seek protection from the state agencies of the country of his nationality first, prior to seeking international protection.
In this case, the claimant did not make any attempt to seek protection against XXXXX and his accomplices from state institutions other that the judicial police, after he was dissatisfied with the police response. The claimant had the ability to, but elected not to, avail himself of state protection from the state agencies other than the judicial police in Mexico. Therefore, the panel finds that the claimant simply did not reasonably exhaust courses of action open to him to obtain state protection in Mexico, and, hence, he has not discharged the onus of showing clear and convincing proof of the state's inability or unwillingness to protect him.
Also, the documentary evidence 6 contrasts markedly with the claimant's allegations of lack of state protection for persons like him in Mexico. In this case, the panel prefers to give more weight to the documentary evidence, prepared by reputable sources having no interest in the outcome of this case, describing country conditions and availability of state protection mechanisms, than to the claimant's testimony. Based on the documentary evidence, the panel does not have persuasive evidence to believe that the claimant would not receive state protection against XXXXX and his accomplices should he return to Mexico.
For example, sources have reported that all 31 states in Mexico maintain a preventive and judicial police force. There are about 90,000 state-level preventive police and 26,185 judicial police across the country. The judicial police were the law enforcement branch of the state-level Public Ministry (MP) and Justice Attorney General's Office (PGJ) and is responsible for investigating and prosecuting local criminal offences. 7 The PFP oversees security issues such as robbery, kidnapping and trafficking. The coordination for Federal Support Forces contains special operations and emergency response and the Regional Security Coordination supervises 34 regional commands. 8
Documentary evidence 9 indicates that the Mexican Government continues to push forward with federal police reform by focusing on rigorous new recruiting, training and vetting measures. The PFP has internal regulations with disciplinary measures that classify transgressors and apply sanctions, including removal, suspension or dismissal. To enforce police internal rules, a collegiate organ, headed by Internal Affairs General Co-ordinator decides whether there is responsibility or not. The Attorney General's Office (PGR) provides three offices to control its members. The first office is in charge of testing the institution's public official's adherence to legality, professionalism and impartiality.
Based on the documentary evidence, the panel does not find lack of police protection for victims of crime. The panel is not persuaded that the police did not assist the claimant given that they receive training prior to joining the police force and are subjected to disciplinary measures for their misconduct. The panel is not persuaded that the MP, the PGJ and/or the PFP would not have assisted the claimant had he sought their help.
Documentary evidence 10 indicates that in January 2003, the Special Prosecutor for Crimes Against Health was disbanded and subsequently replaced by the Deputy Attorney General's office for Special Investigations into Organized Crime (SIEDO) in August 2003. In August 2003, a major reorganization of the PGR was undertaken and all offices involved in fighting drug-trafficking and organized crime were consolidated under the SIEDO.
The SIEDO is divided into six units and is mandated, among other things, to investigate and prosecute members of organised crime including crime against health (narcotics possession and trafficking), kidnapping, assaults and vehicle thefts. There is no persuasive evidence to suggest that the SIEDO would not have assisted the claimant against XXXXX and his group, given that they have disbanded four gangs, assisted in the joint USA/Mexico investigation to arrest members of organised crime groups, and, in August, their investigations resulted in the arrest of six members of a criminal organisation. 11
Enacted in November 1996, Article 34 of the Federal Law Against Organised Crime outlines that the Federal Attorney General's office must provide support and sufficient protection for judges, experts, witnesses, victims and other persons involved in legal proceedings. The PGR agency responsible for witness protection is the SIEDO. In November 2005, a Mexico City based newspaper reported that from 1997 to 2003, the SIEDO protected 252 witnesses at a total cost of 32,426,512 pesos. 12 The panel does not find that th SIEDO would not have provided witness protection to the claimant had he complained about XXXXX and his group's drug trafficking activities.
Documentary evidence 13 indicates that throughout 2006, the Fox Administration cooperated with the US law enforcement counterparts at levels unmatched by previous Mexican governments. Significant Mexican counter-narcotics enforcement actions in 2006 included sophisticated organised crime investigations, marijuana and poppy eradication, strong bilateral cooperation on drug interdiction and the arrests of several major drug traffickers. During 2006, the AFI investigated and arrested drug traffickers, violent kidnappers and corrupt officials. Over 1700 AFI agents received training on how to conduct raids of methamphetamine labs. The US law enforcement agencies provided the AFI with basic equipment and instructions and advanced contraband detection training on three mobile Vehicle and Cargo Inspection System vehicles deployed in 2006 to inspect trucks for drugs, explosives and other contraband. In 2006, the Government of Mexico (GOM) seized 1,220 vehicles, 46 maritime vessels and 15 aircrafts and arrested 11,579 persons on drug related charges, including 11,493 Mexicans and 86 foreigners.
The latest documentary evidence indicates that, according to "The Economist", the AFI is a relatively clean police force that is proving to be more effective than any other police body.
Based on the aforementioned documentary evidence, the panel finds that the Mexican authorities are making serious efforts to fight illegal drug trafficking, and they have had success in their endeavours. The panel is not persuaded to believe that the GOM is not acting against drug traffickers like XXXXX and his accomplices, and, therefore, the panel is not persuaded to believe that the claimant would not have received assistance from the AFI had he been to seek their help.
The claimant, in his testimony, indicated that there was corruption within state agencies in Mexico. He felt that some police officers were in cahoots with XXXXX and his group.
Although corruption was an ongoing problem in Mexico, the Government of Mexico continued to promote anticorruption efforts. Former President Fox and other senior officials have demanded that all agencies, departments and government institutions, including the Mexican military services, adhere to strict enforcement of anticorruption measures. 14
Documentary evidence 15 indicates that during 2006, the Fox Administration strictly targeted corruption. Aggressive investigations, better pay and benefits for employees and better selection criteria for Federal government employment have all deterred corruption. In 2006, the Secretariat of Public Administration reported that 3,597 inquiries and investigations into possible malfeasance or misconduct by 2,693 federal employees resulted in the dismissal of 202 federal employees, the dismissal of an additional 743 employees with re-employment restrictions, the suspension of 953 employees, 1040 reprimands, the issuance of eight letters of warning and the imposition of 651 economic sanctions. During 2006, the AFI was also involved in investigations and arrests of corrupt government officials.
Documentary evidence 16 indicates that the government has enacted strict laws attacking corruption and bribery, with average penalties of 5 to 10 years in prison. Although enforcement of corruption was a challenge, officials have been sentenced and punished with imprisonment and fines. The Fox administration has issued over 13,000 sanctions against public servants, resulting in 1,297 dismissals, 278 indictments and 53 convictions. The Mexican chapter of Transparency International reported that the country's national corruption index had decreased from 10.5 in 2001 to 8.5 in 2003.
At the federal level, in addition to the National Human Rights Commission, the Secretariat of Public Administration (SFP) offers various services to citizens wishing to report acts of corruption such as bribery. Citizens may lodge complaints in person at an SFP office or at the office of the PGR.
There is also the SACTEL. The SACTEL has a 24-hour hotline service operating 365 days a year recording complaints made by citizens against public servants. The SACTEL then forwards complaints to the local comptroller's office for investigation. Government authorities in Mexico have lauded the progress being made by federal-level, anti-corruption programs.
The National Human Rights Commission (CNDH) and the State Human Rights Commission (CEDH) are government-funded organisations that provide recourse to those citizens who wish to file a human rights violation or complaint against a civil servant. Specifically, the CNDH receives complaints related to acts or omissions by federal public servants that have allegedly resulted in a violation of an individual's rights. The CEDH receives complaints related to acts or omissions by state or municipal servants within their respective states that have allegedly resulted in a violation of an individual's rights. Both these bodies, after investigating a complaint, issue recommendations to the authorities under whose jurisdiction the public servant in question works. 17
In this case, the claimant had knowledge of the existence of the Human Rights Commissions in Mexico, but he made no efforts to seek their help.
The claimant could have also filed a complaint with the General Comptroller's Citizen Assistance Directorate that addresses misconduct of Federal District public servants, 18 if he felt that the police were in cahoots with XXXXX and his group.
Based on the evidence adduced, the panel is not persuaded to believe that there is lack of action by the state authorities against corrupt government officials, including the police. In this case, the claimant made no effort to seek help from the aforementioned state agencies to address corruption after he felt the police were in cahoots with XXXXX and his group. There is no persuasive evidence to suggest that the Human Rights Commission would not have ensured that adequate state protection was available to the claimant had he been to seek their help.
The panel does not disagree that criminality, corruption, kidnapping and drug trafficking continues to be problems in Mexico. However, based on the totality of the evidence adduced, the panel finds that Mexico is making serious efforts to contain these crimes in order to protect its citizens who become victims of these crimes.
Based on the totality of the evidence adduced, the panel finds that adequate, though not necessarily perfect, state protection is available to the claimant in Mexico. The claimant, living in a democracy, simply did not reasonably exhaust courses of action available to him prior to seeking international protection.
Since adequate state protection is available to the claimant, the panel finds that there is not a serious possibility that he will face persecution or that, on a balance of probabilities, he would be subjected personally to a risk to his life, a risk of cruel and unusual treatment or punishment, or a danger of torture, should he return to Mexico.
Accordingly, the panel determines that XXXXX XXXXX XXXXX is neither a Convention refugee nor a person in need of protection. The Refugee Protection Division, therefore, rejects his claim for refugee protection.
"S. ALIDINA" [Signature]
November 26, 2007