1711633 (Refugee) - [2019] AATA 3435

1711633 (Refugee) [2019] AATA 3435 (15 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711633
COUNTRY OF REFERENCE:                   Mexico
MEMBER:Nora Lamont
DATE AND TIME OF
ORAL DECISION AND REASONS:         15 August 2019 at 10:36 am (VIC time)
DATE OF WRITTEN RECORD:                4 September 2019
PLACE OF DECISION:  Melbourne
DECISION:
The Tribunal remits the decisions under review with the direction that the applicants satisfy

s.36 (2)(a) of the Migration Act.

CATCHWORDS
REFUGEE – protection visa – Mexico – threat to personal safety - affluent professionals – kidnapping and extortion – rampant gang crimes - relocation unreasonable - decision remitted

LEGISLATION
Migration Act 1958 (Cth), s 36, 91R
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 25 May 2017 to refuse to grant the applicants protection visas under the Migration Act 1958 (the Act).
At the hearing on 15 August 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
This is an oral decision in the application of [Applicants 1-4].
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
The applicants claim to be citizens of Mexico and they have provided copies of their passports to the Department with their application, The Tribunal finds that the applicants are nationals of Mexico and that Mexico is their receiving country for the purposes of the Refugee and Complementary Protection assessments. There is no evidence before the Tribunal to suggest that the applicants’ have any right to enter and reside in any third country for the purposes of section 36(3) of the Act.
The applicants have laid out their claims in their protection visa application, through statutory declarations, submissions and documentation. The primary applicant has also provided oral evidence today before the Tribunals. The applicants’ claims can be summarized as follows:
- Both the primary applicant and the secondary applicant are [occupation] from Mexico
- The primary [and secondary applicants] have been the victims of threats to their personal safety, kidnapping and extortion. The applicants claim to have has to pay large sums of money to comply with the demands of criminal groups
- The applicant claims that while crime rates vary throughout Mexico there is organized crime in each and every region of the country.
The Tribunal has considered the evidence available to the Tribunal to be detailed and consistent and in keeping with the principle of do no further harm the Tribunal has decided the decision can be made orally today.
The Tribunal accepts that the primary applicant and the secondary applicant are [occupation], highly educated and that they had their own business in Mexico prior to arriving in Australia.
The Tribunal accepts that the applicants were targeted due to their wealth and professionalism and that they were subjected to extortion, feared for their safety due to the rampant gang crime and threats of kidnapping in their home area.
The Tribunal finds that the applicants are members of a particular social group “wealthy [occupation] in Mexico, or affluent professionals in Mexico”. The third and fourth applicants the children of the primary and secondary applicants would also form a particular social group as they may be targeted at their parent’s expense or because of their parents and form a particular social group ‘children of wealthy [occupation] in Mexico or children of affluent professionals’. Therefore the Tribunal finds that the applicants’ fears of harm are convention related.
Further, the Tribunal finds that the applicant’s claims are consistent with available country information that indicates kidnappings are a serious problem in Mexico. There are also credible reports of police involvement in corruption and kidnappings for ransom at the state and local levels. DFAT in its latest travel advice issued on 15 August 2019 calls for a high degree of caution overall in Mexico with some areas of the country they advise to exercise a high degree of caution. DFAT also states:
Mexico has high levels of violent crime, especially after dark. Crime rates have been increasing in recent years and are now at their highest level on record. The states of Baja California, Colima, Jalisco, Tabasco and Veracruz have seen particular increases.
Murder, armed robbery, sexual assault and kidnapping are risks. These crimes may occur in popular tourist destinations and beach resorts.
Criminals posing as police officers have committed sexual assault, extortion and robbery. They may drive a fake police car.
Kidnapping is a serious risk in Mexico. It's common in inland and rural areas, including in Mexico City.
Some victims claim police officers are involved in kidnapping.
Express kidnappings target travellers, including those on metro and public transport in Mexico City. Kidnappers force victims to withdraw funds from ATMs before they're released.
Virtual kidnappings target people over the phone. Kidnappers pose as an official, and demand payments for the release of an allegedly arrested family member. [1]
[1] >
In its 2014 report on human rights[2], the US Department of State noted “significant human rights-related problems included police and military involvement in serious abuses, such as unlawful killings, porch, disappearances, and physical abuse. Impunity and corruption remained serious problems, particularly at the State and local levels, in the security forces, and in the judicial sector. Organised criminal groups persisted in perpetuating high levels of kidnapping and violence against journalists and others that limited freedom of expression…… Impunity for human rights abuses remained a problem throughout the country with extremely low rates of prosecution for all forms of crime. Neither general information about government investigations of the human rights allegations nor information about specific cases was easily available to the public…. There were numerous reports the government or its agents committed arbitrary or unlawful killings, often with impunity. Organised criminal groups were also responsible for numerous killings, often acting with impunity and in league with corrupt state, local, and security officials…. There were reports of forced disappearances by security forces along with hundreds of complaints of disappearances related to organise crime. Most occurred in the course of sanctioned security operations. While the Federal criminal code classifies forced disappearances as a crime, it does not constitute a crime in several local penal codes…. As of August 31, the CNDH [Mexico’s National human rights commission] processed 445 complaints of rule or degrading treatment and 552 complaints of torture. The CNDH issued 10 recommendations in cases of fraud and degrading treatment and to recommendations in cases of torture…. Treatment and physical conditions in prisons and detention centres will often harsh and life-threatening, most notably in State level presence, due to corruption, overcrowding, prisoner abuse, alcohol and drug addiction, a loss of security and controlled….”
[2] US Department of State, country reports on human rights practices, Mexico 2014
The Tribunal also notes that further in the 2014 report on human rights that there is corruption within the justice system. The Tribunal is therefore not satisfied that the applicant’s will be afforded adequate state protection.
The Tribunal has considered if the applicant’s fear is localised and/or whether they could relocate to other parts of Mexico. Consideration of the reasonableness and practicability of relocation presupposes that there is already a place in the country of nationality where an applicant is usually based and from which he or she might move to another part of that country in order to avoid persecution.[3] The principle upon which relocation operates is that there is an area in the applicant’s country where he or she may be safe from harm.[4] The issue is therefore whether it would be reasonable to expect an applicant to relocate if the circumstances indicate that there is an area where, objectively, there is no appreciable risk of the occurrence of the feared persecution, that is, where the feared persecution is localised rather than nation-wide.
[3] SZRKY v MIAC (2012) 132 ALD 525 at [24] (upheld on appeal: SZRKY v MIAC (2013) 141 ALD 328).
[4] MIBP v SZSCA (2014) 254 CLR 317 per French CJ, Hayne, Kiefel and Keane JJ at [25].
Whilst country information about Mexico is arguably general, it does however support that the applicant’s claim that his apprehended fear is not localised. The Tribunal is satisfied that country information supports the applicant’s claim that his well-founded fear extends to other areas in Mexico. On the basis of the available information, the Tribunal is satisfied that internal relocation is not an option because there is a risk that the non-state actor will persecute the applicant in other areas of Mexico. The Tribunal is satisfied that there is a real chance that the applicant would be targeted in other areas of Mexico and that country information supports a finding that he would not receive adequate state protection.
Cumulatively the Tribunal is satisfied that the applicants have a well-founded fear of persecution if they were returned to Mexico now or in the reasonably foreseeable future and it is unreasonable for the applicants to relocate within Mexico.
The Tribunal considers that the persecution which they are at risk of suffering involves serious harm as required by s.91R(1)(b) of the Act, in that it involves significant physical harm, harassment or ill-treatment. The Tribunal finds that the applicants’ membership of a particular social group, would be the essential and significant reason for the persecution as required by s.91R(1)(a) of the Act. On the evidence before it, the Tribunal is satisfied that the persecution they are at risk of suffering involves systematic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves selective harassment for a Convention reason.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a) .
DECISION
The Tribunal remits the decisions under review with the direction that the applicants satisfy s. 36(2)(a) of the Migration Act.
Nora Lamont
Member