Citation: 2020 RLLR 153
Tribunal: Refugee Protection Division
Date of Decision: March 11, 2020
Panel: Roslyn Ahara
Counsel for the Claimant(s): Sheau Lih Vong
Country: Mexico
RPD Number: TB7-23117
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000095-000104
REASONS FOR DECISION
[1] XXXX(a.k.a. XXXX) XXXX XXXX (the claimant), who is a citizen of Mexico, is seeking refugee protection, pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1
ALLEGATIONS
[2] The claimant’s allegations are set out fully in her amended Basis of Claim Form (BOC).2 The claimant fears persecution from her family and society generally as a result of her sexual orientation and gender identity. The claimant alleges that she has been verbally, emotionally, and sexually abused by members of her family, and others, during her adolescence and adulthood, in both Mexico and United States (US). The claimant also alleges that she suffered discrimination and violence due to her sexual orientation and gender identity. She further fears harm at the hands of her older brother, who is a violent criminal.
DETERMINATION
[3] The panel finds that the claimant would face a serious possibility of persecution on a Convention ground upon return to Mexico.
ISSUES
Nexus
[4] The claimant alleges that the persecution she faces is due to her membership in a particular social group in Mexico, namely transgender women. The panel accepts that gender identity is a particular social group and has, therefore, assessed this claim against section 96 of the IRPA.
Identity
[5] The claimant’s identity as a citizen of Mexico is established, on a balance of probabilities, as per her passport.3
Credibility
[6] In considering credibility, the panel is aware of the difficulties that may be faced by the claimant in establishing a claim, namely, the setting of the hearing room, and the stress inherent in responding to questions. The panel has also considered the contents of the medical report.
[7] Most importantly the panel has considered and applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guidelines),4 and in this regard it has carefully examined the claimant’s oral testimony in line with the factors to be considered when applying this guideline. The panel examined the challenges faced by this particular claimant.
[8] Although the claimant was not deemed to be a vulnerable person in the absence of medical evidence, the panel made accommodations. Counsel questioned the claimant, and the panel stressed to the claimant that whatever breaks were required, would be granted. In fact, this did occur when the claimant’s demeanour was such that two breaks were immediately suggested by the panel.
[9] The panel considered the factors of mistrust or fear of repercussion by state and non-state actors. More importantly, the panel accepts that the claimant was reluctant to discuss her change in gender identity and therefore, this late information, is not called into question as per the panel’s analysis below.
[10] The panel was also cognizant of the claimant’s XXXX health issues, adding to the marginalization factor. The claimant’s history of social isolation, mistreatment, and lack of social support and XXXX XXXX XXXX XXXX XXXX were considered in terms of the manner in which the claimant testified. The Clinical XXXX Health Assessment submitted was considered; in particular the XXXXof XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the significant impact on the claimant’s experience of emotional and physical violence as a result of her gender identity.5
[11] Since submitting her initial BOC, the claimant has provided new documentation in which she indicates that she has begun identifying openly as a woman.6 She asked that the panel consider her name to be XXXX, and refer to her by the pronouns she and her. The details of why her initial BOC did not reflect this information are described in detail, but in essence, the claimant has had difficulty in expressing her true feelings to counsel until she met with her current counsel in preparation for her hearing. The panel has provided more specific detail in this regard, relating to the SOGIE Guidelines.
[12] The claimant testified that she could not come forward in terms of her gender identity in the US, as she was undocumented and had no support. Even in Canada, according to the claimant, she had trust issues. As enunciated above, the panel accepted the fact that initially the claimant did not disclose her gender identity until the late disclosure with new counsel. She testified that she has considered herself a woman for the past twelve years and has changed her name on Facebook to XXXX.7
[13] She further testified as to why she had re-availed, and as stated above, the panel accepts this as not being determinative of the claim, as there were serious family issues at this time.
[14] She further testified with respect to her reluctance to divulge her female identity with most individuals. More importantly, she explained why she had not taken any steps to express her female identity in the US, due to her lack of documentation and her lack of family support at the time; her father now knows. She elaborated on this that even in Canada, there are trust issues, along with lack of support.
[15] Although delay and re-availment were identified at the hearing along with other issues, in keeping with the SOGIE Guidelines, the panel does not find that these issues detract from the claimant’s credibility. In totality, the panel was satisfied that the claimant’s testimony was credible and that she has identified as a female for 12 years. The panel accepts that the claimant is a transgender woman and that she has a subjective fear of persecution in Mexico.
[16] Moreover, her testimony was corroborated by copious amounts of corroborative evidence, including the late disclosures, anticipating a resumption. These late disclosures included:
- A letter from her friend, SS.
- A copy of her Facebook page in which her name is indicated as XXXX XXXX, not XXXX.
- A certificate from a XXXX Health Counsellor.8
- The claimant’s BOC has been amended to reflect her gender identity. This evidence was preceded by letters from former partners, photographs, a letter from 519, BOC amendments, a letter corroborating her relationship with XXXX in the U.S, a legal opinion to apply for asylum in the U.S., photographs, and a clinical report indicating that the claimant suffers from XXXX XXXX XXXX XXXX XXXX.9
- A letter from the Toronto Western Family Health Team dated XXXX XXXX XXXX 2020, indicating a referral to the Gender Identity Clinic.10
[17] The panel acknowledges that much of the above disclosures were submitted on the day of the hearing, in fact, during lunch prior to the afternoon hearing. However, the panel had the opportunity to analyze the claimant’s testimony, in conjunction with further study of this new evidence, coupled with the objective evidence before rendering its decision.
[18] The panel received a motion for recusal subsequent to the hearing,11 which was refused. The panel notes that there was some confusion caused by the late disclosure, and by the panel having received materials at the last minute. However, as noted above, the panel has had the opportunity to consider all the disclosure carefully after the hearing in accordance with the SOGIE Guidelines. For these reasons, the panel finds that a reasonable, fully-informed person, thinking the matter through, would conclude that it is more likely than not that the decision maker in this case would act fairly in the circumstances.
Objective basis
[19] Transgender women in Mexico still face pervasive persecution based on their identity gender identity and expression. It notes the following:
Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly women.
[…]
Transgender women continue to face beatings, rape, police harassment, torture and murder in Mexico.12
[20] It is reasonable to conclude from a review of the country conditions that while there has been some improvement in terms of attitudes towards LGBTQ issues, there is still a long way to go, particularly for persons with the claimant’s profile.
[21] While unprecedented political and legal gains have been made in Mexico, the social environment in most of Mexico remains repressive, and often dangerous. Machista ideals of manly appearance and behavior contribute to extreme prejudices against sexual minorities, and often to violence against them.
[22] Moreover, as the claimant testified, she is fearful of the police. This is also supported in the documentary evidence. In this regard, the panel has considered the personal circumstances of this claimant which includes her age and health status, along with her history which is well documented. The panel further accepts that in the particular circumstances of this claimant, it may be unreasonable for her to approach the state for protection, keeping in mind that the state protection must be adequate at the operational level.
[23] Furthermore, issues such as employment, secure housing, access to medical treatment as well as treatment related to the transition process must be considered, along with mental health issues and equal access to social services:
Vulnerable communities, including transgender women, are often victims of drug cartel and gang violence. Transgender women fall victim to cartel kidnappings, extortions, and human trafficking. One transgender woman described how cartel members forced her into sex work in Merida. Another transgender woman was targeted for rape and robbery while traveling by bus. In another case, a transgender woman named Joahana in Cancun was tortured to death by drug traffickers who carved a letter “Z” for the Zeta cartel into her body. If a cartel targets a transgender woman, it is nearly impossible to escape the cartel’s power. An immigration attorney in the U.S. described in an interview how his transgender female client unknowingly dated a cartel member. After doing so, she could not escape persecution from the cartel.13
[24] A recent Response to Information Request further notes that:
Amnesty International (AI) indicates that enforced disappearances, including those committed by state and non-state actors, are “widespread” …
[…]
The U.S. Country Reports 2016 indicates that the investigation, prosecution and sentencing for disappearance-related crimes “remained rare”… AI characterizes the investigation of disappearances as “flawed and unduly delayed,” with authorities failing to immediately search for victims… 14 [footnotes omitted]
[25] The documentation indicates that antidiscrimination laws do not prohibit discrimination on the basis of gender identity. The lack of protection leaves transgender women especially vulnerable to employment discrimination. Transgender women, in Mexico often lack access to gender health care and are generally denied the ability to change their name and/or gender on ID documents to match their gender presentation. It is indicated that:
It should be noted that transgender people cannot simply “hide” who they are and thereby escape persecution by living in accordance with their birth-assigned gender role. Gender dysphoria is a serious condition, recognized by every major medical association, the only treatment for which is to live in accordance with the gender with which they identify, rather than the gender assigned at birth. Attempting to suppress one’s gender identity can have dire health consequences. Moreover, a person’s gender identity is a fundamental component of identity, which cannot be required to be changed or hidden as a condition of protection under asylum laws.
As noted, only Mexico City permits transgender people to legally change their name and gender to correspond to their gender identity. Even where such mechanisms are technically available, however, legal name changes are not accessible in practice for many transgender women. This is in part due to “lengthy delays and high costs-at least six months and approximately 70,000 pesos… are required, and completion sometimes depend[s] on the ‘good will’ of some civil servants.”…
[…]
Transgender women lack adequate health care in Mexico. Many transgender women resist seeking medical help because they must disclose their transgender status and subsequently face hostility and threats of violence from medical providers. Medical care providers often do not want to provide medical attention to transgender patients. Providers have mocked and humiliated transgender patients using offensive language, threats, aggression, and hostility. Consequently, transgender women do not routinely access preventive or emergency care.
In particular, medical care to support gender transition-such as hormones or surgeries-is almost entirely unavailable to most transgender women in Mexico. While medical authorities uniformly recognize the medical necessity of transition related treatment, such care is not covered under Mexico’s national health plan and licensed providers (for those who can afford to pay out of pocket) are scarce. Even where it is available, such care can be prohibitively expensive for transgender women already suffering the effects of economic marginalization discussed earlier. Without access to gender-affirming medical care, many transgender women permanently damage their skin and muscles by injecting dangerous black-market feminizing liquid silicone or other fillers.15
[26] Further documentation notes that:
The May 2016 report of the Cornell Law School LGBT Clinic and the Transgender Law Center also specifies that there are “no federal laws that explicitly protect transgender individuals from discrimination on the basis of their gender identity (i.e., their transgender status) as opposed to sexual orientation”…
[…]
In a short overview of, among others, hate crime legislation in different countries, the same report indicates, however, that in Mexico there is no such legislation. The report, in contradiction to the above cited explanation, states that the federal law neither criminalises hate speech nor hate crimes. The report in this context mentions article 149 Ter of the Federal Criminal Code of Mexico which refers to discrimination…
[…]
In its query response about the situation and treatment of sexual minorities, particularly in Mexico City, Cancun, Guadalajara, and Acapulco of August 2015, the Immigration and Refugee Board of Canada (IRB) writes:
“A report on crimes against transgendered women sent to the Research Directorate by a representative at the Support Centre for Transgender Identities… , an NGO that advocates for the rights of transgendered women in Mexico… , indicates that transgendered women are discriminated against by the police and judicial authorities … The representative from Colectivo León Gay, A.C. indicated that LGBT persons are [translation] ‘frequently’ harassed and arbitrarily detained due to their physical appearance, the way they dress, or for expressing affection in public… The representative also indicated that they are barred from assembling in public because they are seen as ‘engaging in prostitution or giving a ‘bad example’ or ‘bad image’ to society’ … 16 [footnotes omitted]
[27] In light of the cited documentary evidence regarding similarly situated persons in Mexico who did not receive adequate state protection, there is sufficient evidence before this panel to conclude that, despite efforts made by the state, at this time, the state is not able to offer adequate protection to transgender individuals like the claimant. Accordingly, the panel finds that there exists clear and convincing proof that state protection is not available to transgender individuals like the claimant in Mexico. The panel, therefore, finds that the claimant has rebutted the presumption of state protection and has established that her fear is objectively well-founded since the harm she fears cumulatively amounts to persecution.
[28] With respect to an internal flight alternative (IFA), it is clear from the documentary evidence that societal prejudices against transgender persons are found all over Mexico, including Mexico City. There is blatant disregard for the safety as well as the wellbeing of transgender individuals like the claimant. Homicides and assaults against these groups continue under a backdrop of religious and cultural tolerance and moral condemnation. Based on the evidence adduced, the panel finds that there is no viable IFA for transsexual/transgender persons in Mexico City, or for that matter any part of Mexico.
[29] Based on the totality of the evidence adduced, the panel finds that there is a serious possibility, based on her evidence, that she would be persecuted due to her gender identity should she return to Mexico.
CONCLUSION
[30] Accordingly, the panel accepts the claimant as a Convention refugee.
(signed) Roslyn Ahara
March 11, 2020
1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC).
3 Exhibit 1, Package of Information from the Referring CBSA/CIC, Certified True Copy of Passport.
4 Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(l)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
5 Exhibit 4, Personal Disclosure #1, at pp. 28-34.
6 Ibid., BOC Addendum.
7 Exhibit 6, Personal Disclosure #3, at pp. 3-5.
8 Ibid., at pp. 1-6.
9 Exhibit 4, Personal Disclosure #1.
10 Exhibit 8, Personal Disclosure #4, at p. 1.
11 Exhibit 7, Recusal Application.
12 Exhibit 3, National Documentation Package (NDP) for Mexico (August 30, 2019), item 6.3.
13 Ibid.
14 Ibid., item 7.18.
15 Ibid., item 6.3.
16 Ibid., item 6.1.