Categories
All Countries Mexico

2021 RLLR 80

Citation: 2021 RLLR 80
Tribunal: Refugee Protection Division
Date of Decision: November 25, 2021
Panel: Rupinder Nirman
Counsel for the Claimant(s): Marianne B Lithwick
Country: Mexico
RPD Number: TC0-02951
Associated RPD Number(s): TC0-03020 / TC0-03037
ATIP Number: A-2022-01778
ATIP Pages: N/A

REASONS FOR DECISION

[1]       The principal claimant, XXXX XXXX XXXX XXXX, and the minor claimant, XXXX XXXX XXXX XXXX, the female claimant, XXXX XXXX XXXX XXXX  claim to be citizens of Mexico, and are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

Joined Claims

[2]       These claims were joined in accordance with Rule 55 of the Refugee Protection Division

(RPD) Rules.[2]

Designated Representative

[3]       The principal claimant, XXXX XXXX XXXX XXXX was appointed the designated representative of the minor claimant.

ALLEGATIONS

[4]       The facts and events alleged in support of the claim are set out in the claimants’ Basis of Claim (BOC)[3] forms. To summarize, the principal claimant fears for his and his family’s life by the hands of few corrupt police officers. The principal claimant started a XXXX in 2008, and four people came to the PC’s business and asked for derecho de suelo (payment to carry on a business). The PC was injured by one of the police officers in 2011. In 2012, the PC moved to Pachuca, Hidalgo, while his family remained in Mexico City. For four years, nothing happened, and the PC returned to Mexico City in 2018 and restarted the business. The PC was again threatened. In 2018, the PC’s wife and daughter was outside their home and some men attempted to kidnap the PC’s daughter.

[5]       In XXXX 2019, the PC came to Canada. While in Canada, his wife and daughter saw people following them. The PC went back to Mexico and brought his entire family back on XXXX 2019. The claimants filed for refugee protection on February 5, 2020.

DETERMINATION

[6]       Having considered the totality of evidence, I find that the claimant is a person in need of protection as he would be subjected personally to a risk to his life or a risk of cruel and unusual treatment or punishment or to a danger of torture should he return to Mexico under section 97(1) of the IRPA.

ANALYSIS

Identity

[7]       The claimants’ personal identities and Mexican nationality was established based on certified true copies of their Mexico-issued passports in Exhibit 1 and their testimony. I am satisfied, based on a balance of probabilities, that the claimants have established their identity.

Nexus

[8]       The PC ran a business and was targeted by corrupt police officer for extortion. The police officer demanded money for running the business. When the PC did not pay them, they targeted him and his family. The claimants were not targeted by reason of his race, nationality, political opinion, religion, or membership in a particular social group. I find, therefore, that there is no nexus to a Convention ground and that the claimant does not have a well-founded fear of persecution pursuant to section 96 of the IRPA. The claimant’ s allegations are more properly assessed under subsection 97(1) of the IRPA.

Credibility

[9]       I find that the claimants were credible.  The principal claimant provided details of the harm that he and his family experienced in a credible and consistent manner. He provided direct answers to the questions asked, with additional and spontaneous details. He was not overly pensive about his answers, nor was evasive when questioned. Furthermore, his evidence was free of material omissions or inconsistencies, and his testimony was consistent with his narrative.

[10]     In presuming the claimants to be truthful, I find that there is no foundation to rebut that presumption and I accept all of the evidence of the claimant.

[11]     The principal claimant stated that his problem started in 2008 when he was to pay derecho de suelo, a payment to carry on a business by four unknown people. The principal claimant did not pay the money to carry on his legitimate business. At that time that the principal claimant did not know that the people who threaten them were actually police officers. However, he later learned that truth. The principal claimant answered in a detailed and a straightforward manner without any embellishment. Therefore, I find on a balance of probabilities that the problems that the PC alleges did actually happen.

[12]     In 2011, the PC was seriously injured by the police officer because he was not paying his dues to run the business. The PC was hit so hard that he lost one of his testicles due to the injury. The panel did not go into the detail of the injury as it was a sensitive and emotional topic. However, the claimant answered in detail about the circumstances that led to the police officers injuring the PC. The PC answered in a straightforward manner without any embellishment, and as such I find on balance of probabilities that he is a credible witness.

[13]     The PC was asked about the incident in 2018 and 2019 when his wife and daughter was threatened to be kidnapped. The PC described the incident in detail and they were in line with his narrative. Therefore, on a balance of probabilities, I find the PC’s daughter and his wife were also threatened by the police officers for not paying the bribe money.

[14]     The claimants provided corroborating evidence such as daughter’s school documents, supporting letter from friends and family, medical documents, psychiatric assessment, etc., in Exhibits 4 and 5. I give weight to these documents and they corroborate the claimants’ testimonies.

Reavailment to Mexico

[15]     The PC came to Canada in 2019 by himself. I asked the PC that why did he go back if he was safe here in Canada. The PC stated that he thought that he was the problem and the police officers will not go after his family. However, while the PC was in Canada, there was an attempted kidnapping on the PC’s daughter. The PC stated that he went back to discuss with his wife the next steps, whether to move or leave the country. They decided to leave the country. The panel, on a balance of probabilities, find the PC’s response reasonable, and the panel is not making a negative inference regarding his reavailment. The PC was genuinely thought that his family would be safe without him, and once they were attacked his instinct was to go back and be with them.

The claimant faces a personalized risk, not faced generally by others

[16]     I find that the clamant has established, on a balance of probabilities, that he and his family faced the above incidents occurred as alleged. I find, on a balance of probabilities, that the claimants’ faces a personalized risk that is different from the risk faced generally by other citizens of Mexico. I find that the claimant has established, on a balance of probabilities, that he faces a risk to life that is specific to him because of his reluctance to break the rules and pay the extortion money to the corrupt police officers. Accordingly, this claim is assessed under s. 97 of the Act.

Objective Evidence

[17]     The evidence establishes, on a balance of probabilities, on objective basis for the claimant’s risk to life if he was to return to Mexico. The reading of the NPD, along with the claimant’s testimony shows that the corrupt police officers often collude with the cartel to extract money from the businesses.

[18]     The NDP item 2.1 reports:

Significant human rights issues included: reports of the involvement by police, military, and other government officials and illegal armed groups in unlawful or arbitrary killings and forced disappearance; torture by security forces; harsh and life-threatening prison conditions in some prisons; arbitrary arrest and lengthy pretrial detention; violence against journalists and human rights defenders; serious acts of corruption.

[19]     The NDP item 7.15 further states about how police help cartel to track people in Mexico.

The Assistant Professor stated that a large debt or a personal vendetta could motivate a gang to track someone outside their area, and that gangs can use “corrupt law enforcement agents” to obtain information about people they pursue.

[20]     The NDP item 9.5 reports the following on corruption by the Police and Police in collusion with Carte in Mexico:

While both Mexico and the international community have been aware of the gravity of this crisis for some time, little attention has been directed at how the acts of corruption described, in part, here-notably, bribery of public officials and law enforcement officers by organized crime and the collusion it fosters contribute to atrocity crimes.

[21]     The claimant has established an objective basis for his claim and his fears are objectively well-founded.

State Protection

[22]     There is a presumption that a state is capable of protecting its citizens, except in situations where there is a complete breakdown. The PC was asked why he did not go to the police. The PC stated in a straightforward manner that the police officers told the PC that if he reported to the police, it would actually be reporting to one of them. The PC stated that the people who threatened and beaten him were police officers, and he did not want to take chances, and put his family’s life at risk by reporting to the police officers.

[23]     The country documentation for Mexico indicates that, while Mexico does have laws in place which criminalizes official corruption, and even though, some corrupt police officers have been arrested, “the government did not enforce the law effectively.”[4] State agents that commit crimes, including the police, continue to enjoy impunity.[5]

[24]     The NDP item 10.2 reports:

Similarly, an article by KPBS, a San Diego news service (KPBS n.d.), states that “[t]he federal government has said infiltration by organized crime is a problem in many police forces in Sonora and around the country”

The US Department of State’s Country Reports on Human Rights Practices for 2019 observes that “[t]here were credible reports of police involvement in kidnappings for ransom, and federal officials or members of the national defense forces were sometimes accused of perpetrating this crime.”

[25]     Based on my review of the objective evidence, and also in consideration of the claimants’ own particular circumstances and the profile of the agent of persecution, I find that the preponderance of the evidence is clear and convincing and rebuts the presumption of state protection in the claimants’ particular circumstances. I therefore find, on a balance of probabilities, that the claimants have rebutted the presumption of state protection with clear and convincing evidence.

Internal Flight Alternative

[26]     I have also considered whether a viable Internal Flight Alternative (IFA) exists for the claimants in Mexico. The police officers have shown a continued interest in the PC and his family. The PC stated that if he moves with his family to another state, the police will have resources to locate him. The NDP item 14.2 corroborates claimants’ claim and stated the following:

According to the website of San Luis Potosf’s Executive Secretariat of the State Council for Public Security (Secretariado Ejecutivo del Consejo Estatal de Seguridad Pública), Plataforma México is a national network that houses forensic databases used by public security personnel, administered by the federal General Coordination of the Secretariat of Public Security (Coordinación General de Secretaría de Seguridad Publica) (San Luis Potosí n.d.).

[27]     Having considered all the evidence, I find that there is a serious possibility of risk to life throughout Mexico for the claimants in their particular circumstances, including in the IFA locations. A viable IFA does not exist for the claimants in Mexico.

CONCLUSION

[28]     Having considered the totality of evidence, I find that the claimants are persons in need of protection as they would be subjected personally to risk to their life or risk of cruel and unusual treatment or punishment or to danger of torture should they return to Mexico under section 97(1) of the IRPA.

[29]     Their claims are, therefore, accepted.

(signed) Rupert Nirman

November 25, 2021


[1] Immigration and Refugee Protection Act, S.C. 2001, c.27, sections 96, 97(1)(a) and 97(1)(b).

[2] Refugee Protection Division Rules (SOR/2012-256), Rule 55.

[3] Exhibit 2.1, 2.2, and 2.3.

[4] Item 2.1

[5] Ibid., at item 7.18.

Categories
All Countries Mexico

2021 RLLR 62

Citation: 2021 RLLR 62
Tribunal: Refugee Protection Division
Date of Decision: June 8, 2021
Panel: Steve Rudin
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Mexico
RPD Number: TC0-03401
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]    MEMBER: So, sir, I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. Now, in the event that written reasons are provided, they may be edited for spelling and grammar, and applicable references to documentary evidence, as well as case law may also be included.

[2]    XXXX XXXX XXXX XXXX is claiming refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.

[3]    The complete story alleging the basis of the claimant’s fear is captured in the claimant’s very detailed Basis of Claim Form and amendments, which can be summarized as follows:

[4]    Claimant alleges that he fears returning to Mexico because he will face persecution or harm based on his sexual orientation.

[5]    Growing up as a child in a Catholic family in Merida in the State of Yucatan, Mexico, the claimant alleges that at an early age he realized that he was gay, but could not freely express his homosexuality in a society that he described as homophobic.

[6]    The claimant alleges that he has been forced to supress his attraction to other men because he never felt safe or comfortable to do so. As well, he was urged by his family to participate in masculine activities such as sports.

[7]    The claimant maintains that he was often the subject of ridicule in school where he was accused of exhibiting feminine behaviours.

[8]    When he was eight years old the claimant disclosed in confession his preference for males to his priest who told him that there was something terribly wrong with him, and that if he was gay he would go to hell.

[9]    Based on pressures from family, school, and church, the claimant alleges that he considered suicide, but did not have the courage to act on that impulse.

[10]  Although there were constant rumours about the claimant’s sexual orientation, he never admitted to being gay.

[11]  In January of 2004, claimant enrolled in an XXXX program. After graduation in 2009, he began to work at the XXXX XXXX XXXX XXXX XXXX XXXX It was there that the claimant alleges he learned that although there were prohibitions against discrimination based on sexual orientation, homophobic views among managers and employees were still prevalent.

[12]  Based on the culture the claimant felt at XXXX, he left in 2010 and took a position at XXXX in Merida, Mexico where he alleges he confronted the same homophobic attitudes.

[13]  In July 2017, the claimant began to attend therapy from a XXXX XXXX XXXX.

[14]  In October of 2010, the claimant alleges he was invited to a party by his manager, Did not want to attend, and is because of his refusal to attend his co-workers came to his home and physically assaulted him. The claimant called police who attended and were told by the claimant’s attackers that he had inappropriately touched them, and according to the claimant he was told by the police that he deserved what he got. He received medical treatment for his injuries. Filed a complaint with the company but received no response.

[15]  Upon the recommendation of his psychologist in January 2019, the claimant quit his job and in February 2019 traveled to Toronto, Canada where he attended a one month English as a second language program. While in Canada, the claimant observed that the Canadian society appeared to be far more accepting of the LGBTIQ community, and extended his visitor’s visa until January 2020.

[16]  The claimant alleges that he was unaware that his sexual orientation was a ground to make an application for refugee protection, and was only in October 2019, when he happened to run into a Spanish speaking man that he learned that the individual was also gay, and connected him to Culture Link who assisted the claimant in obtaining legal services and making his application for refugee protection in January of 2020.

[17]  Counsel, this is the part that I think you may want to interpret to the claimant.

[18]  For the following reasons, on a balance of probabilities, the panel finds that the claimant would face a serious possibility of persecution on a Convention ground and therefore the panel finds that the claimant is a Convention refugee and has a well-founded fear of persecution should he return to Mexico.

[19]  I will … I will now, hopefully briefly, provide the reasons for making this determination.

[20]  On a balance of probabilities, I find that the claimant is a citizen of Mexico. The claimant established his citizenship by providing a copy of his passport issued by the Government of Mexico.

[21]  The hearing was conducted by video-conference, thus, I did not have an opportunity to review the original passport or other documents. However, I note that there are no concerns raised by any of the officials who had access to the original documents.

[22]  In assessing this claim I focused on the credibility of the claimant’s allegations. The risk of harm he might face upon his return to Mexico because of his sexual orientation.

[23]  I’m cognizant of the difficulties that any claimant faces in establishing a claim. These include the cultural factors, the stress of responding to oral questions through an interpreter, and this is compounded by the fact that this hearing was held remotely using Microsoft Teams, which claimant and counsel had agreed to.

[24]  I also considered the Chairperson’s guidelines on sexual orientation, gender identity and expression when conducting this hearing and assessing the facts in this case, such as the social, cultural context in which the claimant found himself.

[25]  Given the sensitive nature of some of the allegations, my questions were hopefully asked in a sensitive and respectful manner.

[26]  I also considered the psychological assessments that were provided by both Dr. XXXX XXXX(sic) in Mexico, and those of Dr. XXXX XXXX conducted here in Toronto.

[27]  For the following reasons I find the determinative issue in this case to be credibility and the claimant’s sexual orientation. As well, discussed were the issues of State protection and internal flight alternative, the claimant’s delay in making his claim, and the risk of persecution or harm the claimant would face should he return to Mexico.

[28]  In assessing the claimant’s credibility, an issue which is identified in any matter which comes before the Board, I was mindful of the Maldonado decision, which in part says that when a claimant swears to the truth of certain allegations this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.

[29]  I found that the claimant testified in a credible manner. His … there were no relevant inconsistencies in his testimony or contradictions between the testimony and other evidence that was before me. Find that the claimant testified in a spontaneous and detailed fashion.

[30]  Regarding the claimant’s sexual identity. I … I note that it is difficult to definitively establish an individual’s sexual orientation. However, on a balance of probabilities, I find that the claimant has established that he his a … a homosexual male. This finding is based on the claimant’s testimony, his detailed personal feelings and experiences, the relationships that he identified, as well as the letters and photographs that the claimant provided.

[31]  Also, I accept the explanations for the lack of witnesses. Among them the claimant’s initial partner in Canada, as well as his psychologist in Mexico.

[32]  Regarding the delay in claim, I accept that the reasons for this delay were precipitated by his lack of understanding of the system. I do have some concerns that he might not have raised the issue earlier on in his stay of Canada. However, on a balance of probability, I accept as reasonable his explanation for the delay.

[33]  Regarding the risk of persecution or harm that the claimant fears, I … I note that the Federal law prohibits the discrimination of LGBTIQ individuals. However, as counsel pointed out in his very thoughtful and detailed submissions, the law is always not fully implemented.

[34]  Therefore, although Mexico has taken steps towards equality, there are significant cultural and legal barriers that continue to exist.

[35]  According to the objective documentary evidence, and this is in both counsel’s package as well as the Board’s NDP, specifically in the chapters 2.1 which is the DOS report, and chapter 6 regarding sexual orientation, machismo is still embedded in Mexico culture, which increases homophobia and discrimination against sexual minorities.

[36]  This is certainly more prevalent in smaller towns and larger cities, although the acceptance is certainly not uniform.

[37]  And there is evidence that is provided that indicates that there is violence and discrimination ever present in the Mexican society, as well as among Mexican families, and as the claimant had testified, his family are observant practices … practitioners of the Catholic faith, consistent with the claimant’s testimony,

[38]  The objective evidence also indicates that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity. Further, sexual minority students reported discrimination and harassment based on their gender identity. As well, sexual minorities have experienced discrimination as the claimant describes in the workplace.

[39]  Based on this systemic discrimination and the incidents of discrimination and harassment that the claimant has experienced, I do find that the cumulative effect of these acts of discrimination and harassment do rise to the level of persecution.

[40]  Considering the aspect of State protection. As counsel pointed out in his submissions, adequate and effective separate does not exist uniformly throughout Mexico, and it even in jurisdiction where there’s some safe havens for the LGBTQI community, this is not uniformly practiced outside of that particular bubble.

[41]  As well in the issue of internal flight alternative, I find that the … the panel … that the claimant would face a serious possibility or certainly more than a mere possibly of persecution should he attempt to locate in Mexico City.

[42]  As well, as the claimant testified, he would be able to find work and a place to live, but this would not protect him from facing again, persecution or potential harm in Mexico City. This in spite of the fact that there are gay friendly areas.

[43]  So, based on the preponderance of evidence, the claimant’s testimony is very consistent with the objective evidence that is provided in the National Documentation Package.

[44]  So, based on the preceding reasons and the totality of the evidence and cumulative findings that I have just indicated, I find that the claimant has satisfied the burden of establishing that he faces a serious possibility of persecution should he return to Mexico, and therefore find that the claimant is a Convention refugee and his claim is accepted.

[45]  So, that effectively concludes the hearing, unless you would like to explain to the claimant what has transpired. I think … just judging from his reaction I think he understands what’s been said.

[46]  CLAIMANT: Yes. Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Mexico

2021 RLLR 53

Citation: 2021 RLLR 53
Tribunal: Refugee Protection Division
Date of Decision: October 27, 2021
Panel: S. Seevaratnam
Counsel for the Claimant(s): Amedeo Clivio
Country: Mexico
RPD Number: TC1-04681
Associated RPD Number(s): TC1-04721
ATIP Number: A-2022-01594
ATIP Pages: N/A

REASONS FOR DECISION

[1]       The claimants, XXXX XXXX XXXX XXXX(principal claimant) and his partner  XXXXX XXXX XXXXX XXXXX (associate claimant), claim to be citizens of Mexico and they are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       The principal claimant alleges he fears returning to Mexico as a member of a particular social group, a bisexual. The associate claimant alleges he fears returning to Mexico as a member of a particular social group, a gay man. They fear persecution from their homophobic community. The claimants also fear returning to Mexico due to the Cartel Jalisco Nueva Generación (CJNG) who they believe work in collaboration with the corrupt police and the Mexican government. The claimants are two young men in a same-sex relationship since 2015.2

[3]       The panel has carefully considered the Chairperson’s Guideline 9 on Proceedings Before the Immigration and Refugee Board Involving Sexual Orientation and Gender Identity and Expression, prior to assessing the merits of this claim.3

ALLEGATIONS

[4]       The details of the allegations are outlined in the principal claimant’s (PC) Basis of Claim (BOC) Form4 and the associate claimant’s (AC) Basis of Claim (BOC) Form.5 A synopsis of the allegations is as follows.

[5]       XXXX (PC) testified that his father, in 2007 or 2008, started working as a – XXXX XXXX XXXX in Mexico City.6 He explained that his father started storing electronics, weapons, and other valuables in their garage.7 The PC stated that his father was a corrupt XXXX XXXX who maintained links to the CJNG cartel.8 He stated that in 2013, members of the cartel, disgruntled with his father, came to their home in search of him. When they were unable to locate him, they kidnapped his older brother XXXX.9 Later, his father secured XXXX release from the cartel, but he arrived home severely bruised.10 XXXX explained that XXXX was clearly beaten and tortured. The claimants fear similar reprisals.

[6]       The PC stated that his father left the XXXX XXXX in 2015, for reasons unknown.11 However, his father continued to work with the cartel XXXX XXXX XXXX XXXX.12

 [7]      XXXX testified that his father dislocated his elbow when he caught him smiling at a young male in public.13 The PC explained that on another occasion, when he was about 15, he and his friend XXXX went to workout at a gym behind their school. As they exited the gym, a police cruiser drove by and noticed them exchanging a kiss. XXXX stated that he and XXXX were immediately taken in the police cruiser, reprimanded for their conduct, and held overnight in detention at the police station. They were warned not to engage in same-sex amorous behaviour.14

[8]       XXXX (AC) explained that his family members are traditional and religious. He explained that the community is homophobic. Both claimants testified that they tried to keep their sexual orientation a secret in Mexico in order to avoid becoming victims of violence perpetrated by members of society.15

[9]       The AC stated that he was attracted to a male classmate who rejected his advances. This led to him being verbally abused, bullied, and ostracized at school among his peers.16 On another occasion, at age 14, the AC was walking hand in hand with his boyfriend. They were threatened by passengers in a vehicle driving by and became the potential victims of a physical assault.17

[10]     Both claimants testified they have suffered numerous acts of discrimination in several aspects of their lives which they believe amount to persecution. They explained that the police in Mexico reflect the homophobic society and protection is unavailable for bisexual or gay men within Mexico. They fear physical and verbal abuse by society. They believe they are at a grave risk of suffering violence if they were to disclose their sexual orientation.

[11]     On December 12, 2018, the claimants were pursued by members of the CJNG cartel.18 The criminal cartel shot twice in their direction, but the claimants were able to escape.19 Fearing for their life, they fled their country of nationality and sought refuge in Canada. 20

DETERMINATION

[12]     The panel finds the claimants to be Convention refugees. The panel’s reasons are as follows.

IDENTITY

[13]     In Exhibit 5, the claimants have provided copies of their passports issued by the government of Mexico.21 In addition, the associate claimant has provided a copy of his Mexican electoral voter’ s card.

[14]     The panel finds the claimants to be nationals of Mexico. The panel is satisfied with their identities as members of the LGBTQ community.

CREDIBILITY

[15]     The panel is guided by the leading jurisprudence on the issue of credibility. Maldonado22 stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.

[16]     The panel has carefully assessed the totality of the claimants’ sworn viva voce evidence, their personal and country condition documents corroborating their testimony, specifically the information they have provided in their Basis of Claim (BOC) Forms and narratives,23 the letter detailing the circumstances faced by XXXX (PC) by his stepmother, XXXX24 photos,25 and country conditions regarding LGBTQ people in Mexico and the CJNG cartel.26

[17]     The panel finds the claimants to be credible and trustworthy witnesses. Their oral testimony was candid and straightforward. Accordingly, the claimants have established their subjective fear of persecution based on their sexual orientation and membership in a particular group, family of a corrupt XXXX.

WELL-FOUNDED FEAR OF PERSECUTION

Sexual Orientation

[18]     The panel has sought guidance from reliable and reputable documentary evidence regarding the current plight of bisexual and gay men in Mexico.

[19]     The US Department of State (DOS) Mexico Country Report on Human Rights 2020 states as follows:

According to the OHCHR, in the first six months of the year, there were 25 hate- crime homicides committed against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons. Federal law prohibits discrimination against LGBTI individuals. A Mexico City municipal law provides increased penalties for hate crimes based on sexual orientation and gender identity. Civil society groups claimed police routinely subjected LGBTI persons to mistreatment while in custody. Discrimination based on sexual orientation and gender identity was prevalent, despite a gradual increase in public acceptance of LGBTI individuals, according to public opinion surveys. There were reports the government did not always investigate and punish those complicit in abuses, especially outside Mexico City. On July 24, Mexico City passed a local law to ban LGBTI conversion therapy. A CNDH poll conducted in 2019 found six of every 10 members of the LGBTI community reported experiencing discrimination in the past 12 months, and more than half suffered hate speech and physical aggression. In July the federal government’s National Commission to Prevent Discrimination wrote a letter condemning the Roman Catholic diocese of Mexicali for inciting homophobia by calling for anti-LGTBI protests.27

[20]     LGBT+ people have strong legal protections, but they are not uniformly enforced.28

[21]     A Response to Information Request (RIR) on the situation of sexual and gender minorities finds that according to sources, machismo is still embedded in Mexican culture, which increases homophobia and discrimination against sexual minorities.29

[22]     Sources indicate that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity.30

[23]     A Response to Information Request (RIR) on the situation of sexual minorities including in Mexico City states as follows: The website of the Attorney General’s Office (Procuraduria General de la Republica, PGR) cites the President of the National Council for the Prevention of Discrimination (Consejo Nacional para Prevenir y Eliminar la Discriminación, CONAPRED) as stating that in Mexico, [translation] “discrimination on the basis of sexual orientation and gender identity continues to be a structural phenomenon with extensive social roots”. In correspondence with the Research Directorate, a representative from the Executive Commission of Attention to Victims (Comisión Ejecutiva de Atención a Victimas – CEAV), a federal agency that supports those who have been victims of a federal crime or whose human rights have been violated (Mexico n.d.a), stated that crimes against sexual minorities are [translation] “constant … and in many cases are motivated by prejudices”. Sources indicate that despite an increase in public tolerance of sexual minorities, discrimination against sexual minorities was prevalent.31

[24]     Agencia EFE cites LGBT organizations as stating that [translation] “‘persistent homophobia has been promoted in large part by members of the Catholic Church”.32

[25]     In an article dated May 15, 2020, in Reuters, titled “Mexico sees deadliest year for LGBT people in five years,”33 states that in 2019, 117 members of the LGBT community were killed which is a one third increase from 2018 and the highest since 2015.34 The article further states that the victims were found handcuffed, stabbed repeatedly, and in public places.35

[26]     The Inter-American Commission on Human Rights (IACHR), an autonomous organ of the Organization of American States that promotes and protects human rights in the American hemisphere describes in a November 2015 report on violence against LGBT persons in the Americas, among other states, Mexico.36 For instance, same-sex couples showing public displays of affection are also a frequent target of police abuse and arbitrary detention by state agents – often with excessive use of force or verbal abuse- because of what is considered ‘immoral behavior’ in public spaces.37

[27]     Counsel’s documentary evidence package highlights numerous incidents of murder committed upon innocent members of the LGBT community solely motivated by society’s homophobic attitudes.

[28]     Several articles in counsel’s documentary package find as follows:

On April 8, 2019, three young gay men were violently beaten for defending themselves against homophobic insults uttered by their aggressors in Guadalajara.38 One of the young men suffered traumatic brain injury.39

On February 5, 2019, a primary school teacher, who worked in Puebla, was found stabbed to death in his home for being gay.40 His close friends described him as a committed and sensitive person.41 In addition to teaching, he was a dance coach, a costumer for a youth group who was dedicated to humanitarian efforts and charity causes for children in Puebla.42

On July 26, 2018, a gay pageant winner was tortured and assassinated in Veracruz.43 The media report indicates that the gay queen was found half nude with signs of torture wearing a barbed-wire necklace.44

On June 19, 2018, three LGBT activists were murdered after being kidnapped from a bar in a popular tourist spot Taxco which is between Mexico City and Chilpancingo.45 Images from the local press suggest that the men were shot in the back of their heads and tortured before they were killed.46

[29]     Sources indicate that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity.47

[30]     On the issue of education, sources indicate that “sexual minority students reported discrimination and harassment based on their gender identity or sexual orientation at school and that the use of homophobic slurs in school is common.”48

 [31]    This is similar to the experiences of the AC, XXXX who was verbally abused, bullied, and physically assaulted for being gay. In addition, XXXX experience of being detained by the police overnight for a kissing his friend XXXX is corroborated in the media reports.49

[32]     The National Documentation Package (NDP) for Mexico states that,

In 2013, the state of Nuevo Le6n passed the Law to Prevent, Address and Eradicate Discrimination and Harassment and Violence in Schools. However, the representative from Fundaci6n Trans Amor noted that educational institutions have refused to enforce it. In 2019, Desastre, a Mexican news website on LGBTI issues, reported a case of two lesbian students facing harassment and physical aggression at a University in Nuevo León, wherein the school responded by suspending the two victims. 50 [footnotes omitted]

[33]     The NDP further sates,

According to the national study on LGBTI discrimination in the workplace by CEAV [Comisi6n Ejecutiva de Atenci6n a Victimas], and Fundaci6n Arcoiris [Fundaci6n Arcoiris por el Respeto a la Diversidad Sexual], which was completed by 3,451 respondents across the country, 30 percent of respondents reported that being LGBTI was an obstacle to employment occasionally, 21 percent said frequently, and 10 percent said always, while 30 percent estimated that it was never an obstacle. The report states that some employers ask job candidates questions about sexual orientation, pregnancy, and HIV status.51 [footnotes omitted]

Other sources indicate that sexual minorities experience discrimination in the workplace …… “many” LGBTI people hide their sexual orientation or gender identity at work out of fear that it will have a negative impact on their career.52 [footnotes omitted]

In the 2018 national study on discrimination of LGBTI people in the workplace by CEAV and Fundación Arcoiris, 43 percent of respondents reported being harassed, bullied or discriminated against in the workplace….53 [footnotes omitted]

For respondents who disclosed their gender identity to their boss, 66 percent reported “total support” and 25 percent reported “rejection.”54 [footnotes omitted]

[34]     Sources indicate “that sexual minorities reported experiences of discrimination related to their gender identity or sexual orientation when accessing medical services.”55

[35]     Accordingly, the panel finds that the PC is at risk of persecution due to his membership in a particular social group, a bisexual. The AC is at risk of persecution due to his membership in a particular social group, a gay man.

Cartel Jalisco Nueva Generación (CJNG)

[36]     The US Department of State (DOS) Mexico Country Report on Human Rights 2020 states as follows:

Impunity and extremely low rates of prosecution remained a problem for all crimes, including human rights abuses. The government’s federal statistics agency estimated 94 percent of crimes were either unreported or not investigated. There were reports of some government agents who were complicit with international organized criminal gangs, and there were low prosecution and conviction rates in these abuses.56

Organized criminal elements, including local and transnational gangs, and narcotics traffickers, were significant perpetrators of violent crimes and committed acts of homicide, torture, kidnapping, extortion, human trafficking, bribery, intimidation, and other threats, resulting in high levels of violence, particularly targeting vulnerable groups. The government investigated and prosecuted some of these crimes, but the vast majority remained in impunity. 57

[37]     The current NDP highlights the use of family members by cartels to settle scores or silence individuals. This is relevant to the claimants’ fear because of XXXX father who commenced his links with the CJNG during his career as a XXXX Item 7.13 indicates as follows:

Meanwhile, the fact that Coronel was now viewed as a traitor by his former associates in the Beltnin Leyva family, led to the murder of his 16-year-old son, Alejandro, in April 2010.58

The CJNG is also believed to be responsible for serious atrocities, including the rape and murder of a rival’s alleged 10-year-old daughter in 2013, and the filmed murder of a man and his young son, killed by detonating explosives strapped to their bodies.59

Building further enmity between the CJNG and Sinaloa, Ivan and Jesus Alfredo Guzman, the youngest sons of “El Chapo” Guzman were kidnapped when they ventured into CJNG’s Jalisco turf in August 2016.60

[38]     While NDP item 7.12 states:

In August 2016, two of the sons of Sinaloa Cartel leader, Joaquin Guzman Loera, alias “El Chapo,” were briefly kidnapped by the CJNG.61

[39]     The evidence establishes that cartels routinely use family members as a weapon and tool against those they wish to harm and intimidate, as a way to punish what cartels view as noncompliance or defiance.62

[40]     Accordingly, the panel finds that the claimants also face a serious risk of persecution due to their membership in a particular social group, family of corrupt XXXX XXXX. Thus, the claimants have established the objective basis for their well-founded fear of persecution.

STATE PROTECTION

[41]     There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.63

[42]     A Response to Information Request indicates that in in 2015, Mexico’s Supreme Court (Suprema Corte de Justicia de la Naci6n, SCJN) “issued a ruling that bans on same-sex marriage were unconstitutional.”64

[43]     According to sources, machismo is still embedded in Mexican culture, which increases homophobia and discrimination against sexual minorities …. Sources state that in smaller towns and rural areas, there is less acceptance than in cities.65

[44]     With regards to societal attitudes in Mexico,

Diario de Yucatan, a newspaper based in Yucatan, reported in May 2019 that a couple was denied service at a restaurant in Monterrey for being gay; according to the source, the couple entered the restaurant holding hands and were told to leave because it is a “family environment.”66

Sources indicate that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity.67

[45]     The 2021 Freedom in the World report for Mexico states that,

Mexico’s justice system is plagued by delays, unpredictability, and corruption, which often lead to impunity for perpetrators of crimes.68

Widespread bribery, limited capacity, and weak coordination undermine the lower courts’ and law enforcement’s integrity. According to a December 2020 government report, the vast majority of crimes committed in 2019 went unreported, largely because underpaid police were viewed as either inept or in league with criminals. When investigations were conducted, only a tiny handful of crimes ended in convictions.69

Mexicans are subject to the threat of violence at the hands of multiple actors, including individual criminals, criminal gangs that operate with impunity, and police officers who are often susceptible to bribery. A missing-persons registry­ which continues to grow despite increased government efforts in recent years­ reflects an epidemic of enforced disappearances. Mexicans in police or military custody are at risk of torture by the authorities and must also navigate a prison system that respects neither due process nor physical safety.70

[46]     In the NDP for Mexico,

Sources state that sexual minorities have reported cases of violence or aggression by the police and of being detained for their LGBT status…. According to a report on discrimination of LGBTI people regarding access to justice and security by the CEAV and Fundación Arcoiris, 31 percent of transgender women respondents and 15 percent of homosexuals said they had been detained because of their LGBTI status.71 [footnotes omitted]

According to sources, the government does not adequately investigate crimes against sexual minorities.72

The report on discrimination against LGBTI people regarding access to justice and security notes that “the high percentage of people who don’t report the aggressions or crimes is alarming,” and indicates that the two main reasons for not reporting are mistrust and alleged inaction of the authorities.73

[47]     The claimants emphasized that despite the ruling by Mexico’s Supreme Court, in 2015, progress has been slow. They testified that the reality the LGBT people face daily are primarily a homophobic society accompanied by a homophobic and corrupt police force.

[48]     The NDP74 and the documents submitted by the claimant75 make clear that there is widespread discrimination against the LGBTI community, and the state (police) is complicit in the hate crimes perpetrated against members of the LGBTQ community. The documentary evidence highlights the lack of the availability of effective protection for members of the LGBT population. It is evident that state protection is not forthcoming for the claimants due to their sexual orientation.

[49]     In these circumstances, it is clear and convincing evidence that the state is unable or unwilling to protect the claimant. Accordingly, the panel finds that the claimants have met their burden of proof, on a balance of probabilities, and that the presumption of state protection has been rebutted.

[50]     Given the corruption among police officers, and the government of Mexico, the PC testified that protection would not be forthcoming. XXXX testified that his father was co- operating with the CJNG corrupt practices. Accordingly, these criminal gangs are able to exert power and control among the complicit security forces. Thus, state protection is an illusion.

[51]     Objective documentary evidence states that, “[s]ources report that the various police forces in Mexico at the municipal and state level lack human and material resources in order to properly investigate crimes committed in their jurisdiction.”76

According to National Survey on Victimization and Perception of Public Security (Encuesta Nacional de Victimizaci6n y Percepci6n sobre Seguridad Publica) the ENVIPE 2019, 93.2 percent of all crimes committed were either not reported or not investigated. The same source lists the following reasons given by respondents for not reporting a crime:

  • 63.2 percent blamed the police, giving the following reasons: reporting a crime was a waste of time, lack of trust in the authorities, difficulties and length of the process, the authorities’ hostile attitude, or the fear of being victims of extorsion.
  • 36.2 percent of victims gave other reasons to not report a crime, such as fearing the aggressor, the crime being not important, or lacking proof.

Regarding trust in law enforcement institutions, in 2019, 55.2 percent of the respondents thought that the federal police was corrupt, while 60.6 percent had the same perception of the Attorney General’s Office, 64.1 percent of the state police, 65.5 percent of the state Attorney General, 67.9 percent of the municipal police and 68.4 percent of the judges.77 [footnotes omitted]

The CJNG has proven itself ready to challenge the government directly. CJNG forces have ambushed police killing more than 15, targeted federal police in ambushes in which five died, and even downed a Mexican military helicopter in a direct confrontation.78

[52]     The US Department of State (DOS) Mexico Country Report on Human Rights 2020 states as follows:

Significant human rights issues included: reports of the involvement by police, military, and other government officials and illegal armed groups in unlawful or arbitrary killings and forced disappearance; torture by security forces; harsh and life-threatening prison conditions in some prisons; arbitrary arrest and lengthy pretrial detention; violence against journalists and human rights defenders; serious acts of corruption; impunity for violence against women; violence targeting persons with disabilities and lesbian, gay, bisexual, transgender, and intersex persons; and the existence of the worst forms of child labor.79

[53]     The Jalisco Cartel New Generation (Cartel Jalisco Nueva Generación – CJNG) is a criminal group that has evolved as a result of killings, captures and rifts in older cartels. It is known for its aggressive use of violence and its public relations campaigns. Despite the capture of certain top leaders, it is now Mexico’s foremost criminal threat and appears set to continue expanding.80

[54]     In April 2015, the CJNG killed 15 Mexican police officers during an ambush in Jalisco state, one of the single deadliest attacks on security forces in recent Mexican history. The group was also blamed for an attack in March 2015 that killed five federal police. Additionally, Mexican officials have previously indicated that the group possesses highly sophisticated armament, including machine guns and grenade launchers were used to conduct the March 2015 attack. In May 2015, the group continued its deadly streak, shooting down a military helicopter on May 1 and launching a wave of violence across Jalisco.81

[55]     According to an Amnesty International report 2020/2021, titled Mexico State of the World’s Human Rights finds that, “[e]nforced disappearances by state agents and disappearances committed by non-state actors continued to be a concern; those responsible enjoyed almost total impunity.”82

[56]     Mexico. World Report 2021: Events of 2020 indicates:

The criminal justice system routinely fails to provide justice to victims of violent crimes and human rights violations. Only 1.3 percent of crimes committed in Mexico are solved, the nongovernmental group Impunity Zero reports. Causes of failure include corruption, inadequate training and resources, and complicity of prosecutors and public defenders with criminals and other abusive officials. A 2018 reform intended to give prosecutors increased independence has not been properly implemented, local human rights and rule-of-law groups report.83

However, prosecutors and police neglect to take even basic investigative steps to identify those responsible for enforced disappearances, often telling families of the missing to investigate on their own. The CNB reported that over 7,000 people disappeared in 2019. That year, the Attorney General’s Office opened only 351 investigations into disappearances and prosecuted only 2.84

[57]     Bertelsmann Stiftung’s Transformation Index (BTI) 2020, indicates that,

At the state level, the judiciary is totally bound to the local executives. All the governors that have been accused of fraud and corruption have been able to escape trial. Furthermore, there have been very few cases where corruption by a party, union, Congress leader or functionary is brought to justice, despite rampant corruption. 85

The situation has worsened dramatically in those places where the drugs war is intense. The situation has been aggravated by the number of people in those regions that have been disappeared. We do not know if they were abducted by criminal gangs, the army or the police. The most recent estimate is that 37,000 people have been disappeared.

As a consequence of impunity and the fact that official forces are in many cases involved in criminal acts, people who are victims of crime rarely report the crime to the police. People are afraid that as the police may be involved, they will be victimized again or because they feel it is useless. 97% of crimes go unsolved and thus unpunished.86

[58]     The report further indicates that, “[h]uman rights advocates have consistently expressed concern about a lack of accountability for rights abuses committed by members of the military, including torture, forced disappearances, and extrajudicial executions.”87

[59]     Counsel’s country condition package highlights a media report which indicates an entire police department in Mexico’s state of Chihuahua was arrested due to corruption.88

[60]     The panel finds that the claimants fear persecution or serious harm at the hands of organized criminal group, CJNG. Therefore, based on the objective and current documentary evidence,89 the claimants cannot avail themselves of the protection of the authorities. The security forces are complicit.

[61]     The National Documentation Package (NDP) for Mexico90 and the documents submitted by the claimant91 make clear that the state is ineffective and in these particular circumstances, there is clear and convincing evidence that the state is unable or unwilling to protect the claimants. Accordingly, the panel finds that the claimants have met the burden of proof, on a balance of probabilities, and the presumption of state protection has been rebutted.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[62]     The Federal Court of Appeal established a two-part test for assessing an IFA in Rasaratnam and Thirunavukkarasu: As per Rasaratnam,

(1)       “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”92 and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.

(2)       Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claim, for him to seek refuge there.93

[63]     The claimants bear the burden of proof to demonstrate that they would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment94 in all of Mexico.

Sexual Orientation

[64]     The claimants faced verbal abuse throughout their youth at school and within their community due to entrenched homophobic attitudes. The claimants testified that given the homophobic attitude of Mexican society, reinforced by the Catholic church, the police, and the state authorities, they would not be able to live safely and openly as a bisexual and gay couple in Mexico. The claimants testified that they intend to spend their future together and they have taken the preliminary steps towards arranging their marriage in Canada.

[65]     The AC testified that. as a XXXX XXXX he has travelled to a variety of regions within Mexico. He stated that the treatment of gay men and the homophobic attitudes prevailed.

[66]     The objective and reliable documentary evidence from a variety of reputable and current sources indicates that a viable internal flight alternative is unavailable for the claimants, a same­ sex couple.95

[67]     Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout Mexico.

Jalisco New Generation Cartel (CJNG)

[68]     Documentary evidence indicates that the cartel has expanded rapidly, and the CJNG now has some sort of presence in every part of Mexico, except Sinaloa and the Golden Triangle of heroin production. 96

[69]     On the issue of the geographic spread of the CJNG in Mexico, the documentary evidence indicates that there is no greater evidence to support the notion of the CJNG as highly resilient and powerful organization than to chronicle its rapid geographic spread throughout Mexico. In a relatively short rise from 2010 to early 2018, the CJNG developed a documented presence in 24 of 32 Mexican states; when including alliances and small cells the count includes all 32 Mexican states.97

[70]     A Response to Information Request states that according to the Assistant Professor, cartels use family networks and private investigators to track people, as well as property records in the US and Mexico and placing GPS trackers on cars.98

The Assistant Professor stated that in order to extend their influence beyond their areas of operation, cartels rely on the “representation” they have in other areas.99 Reports that the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generaci6n, CJNG), a splinter group of the Sinaloa Cartel, has developed “strategic alliances” with groups in other regions, including Los Zetas and Gulf Cartel splinter groups along the Gulf Coast.100

[71]     The claimants stated that the police are complicit and would enable the cartel to find them.

[72]     The RIR further finds that the Assistant Professor stated that a large debt or a personal vendetta could motivate a gang to track someone outside their area, and that gangs can use “corrupt law enforcement agents” to obtain information about people they pursue.101

[73]     Documentary evidence indicates on the CJNG cartel indicates as follows:

Area of influence: present in 27 Mexican states and “asserts control over the ports of Veracruz, Mazanillo, and Lazaro Cardenas.” It has a presence in every part of the country, and is the “dominant criminal actor in Jalisco, Nayarit and Colima, at the port of Lazaro Cardenas in Michoacan, in the eastern state of Veracruz and in the oil-rich central region of Guanajuato, Puebla, Querétaro and Hidalgo”

Alliances: Tijuana Cartel Nueva Generation, a faction of the Juarez Cartel.102

[74]     Accordingly, the objective documentary evidence before the panel indicates that there is a serious possibility of persecution throughout Mexico from the CJNG. As a result, there is no viable IFA where the claimants could reside without a risk to their lives or their safety.

[75]     Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout Mexico. Thus, given the particular circumstances of the claimants, a same-sex couple and having family ties to XXXX father, a former XXXX XXXX having worked in alliance with the CJNG, the claimants are known to the organized criminal cartel and their corrupt counterparts within the police force, thus, an internal flight alternative is unavailable.

CONCLUSION

[76]     The claimants, XXXX XXXX XXXX XXXX, and his partner XXXX XXXX XXXX XXXX have established that there is a reasonable chance of persecution, based on their sexual orientation if they were to return to their country of nationality, Mexico, today. They have also established that there is a reasonable chance of persecution due to their membership in a particular social group, family of corrupt XXXX, if they were to return to Mexico today.

[77]     Therefore, the panel finds the claimants to be Convention refugees.

(signed) S. Seevaratnam

October 27, 2021

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, sections 96 and 97(1).

2 Exhibit 2, Basis of Claim (BOC) Form -TCl-04681, Narrative, at para. 17.

3 Chairperson ‘s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.

4 Exhibit2, BOC Form -TCl-04681.

5 Exhibit 3, Basis of Claim (BOC) Form – TCl-04721.

6 Exhibit 2, BOC Form -TCl-04681, Narrative, at para. 8.

7 Ibid., at para.9.

8 Ibid., at para. 2.

9 Ibid., at para. l 1.

10 Ibid., at para.12.

11 Ibid., at para.16.

12 Ibid.

13 Ibid., at para.13.

14 Ibid., at para.3.

15 Ibid.

16 Exhibit 3, BOC Form – TCl-04721, Narrative, at para.5.

17 Ibid., at para.6.

18 Exhibit 2, BOC Form -TCl-04681, Narrative., at para.18.

19 Ibid., at paras. 18-19.

20 Exhibit 1, Claim referral information from CBSA/IRCC.

21 Exhibit 5, ICAC-Scheduling ready package dated June 8, 2021.

22 Maldonado, Pedro Enrique Juarez v. MCI (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).

23 Exhibit 2, BOC, received March 8, 2019.

24 Exhibit 7, Disclosure received October 21, 2021, Package 1, Personal Evidence, 3 items 7 pages, items 1-2.

25 Exhibit 10, Disclosure received October 21, 2021, Package 4, photos of the claimants in Mexico and Canada, 23 pages.

26 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages.

27 Exhibit 4, National Documentation Package (NDP) for Mexico (September 29, 2021), item 2.1., s. 6 – Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity.

28 Ibid., item 2.8, s.F4.

29 Ibid., item 6.2, s.2.1

30 Ibid.

31 Ibid., item 6.4, s.2.

32 Ibid.

33 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages., item 13, at p. 44.

34 Ibid.

35 Ibid.

36 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.1.

37 Ibid., at p.20.

38 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages., item 15, at p. 56.

39 Ibid.

40 Ibid., item 17, at p. 62.

41 Ibid., at p. 30.

42 Ibid.

43 Ibid., item 18, at p. 64.

44 Ibid.

45 Ibid., item 19, at p. 66.

46 Ibid.

47 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.2, s. 2.1.

48 Ibid.

49 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages, item 11, at p. 41.

50 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.2., s. 2.1.

51 Ibid., item 6.2, s. 3.

52 Ibid.

53 Ibid.

54 Ibid.

55 Ibid., S. 4.

56 Exhibit 4, NDP for Mexico (September 29, 2021), item 2.1. s. Executive Summary.

57 Ibid.

58 Ibid., item 7.13, at p.5.

59 Ibid., at p.13.

60 Ibid., at p.17.

61 Ibid., at item 7.12.

62 Ibid.

63 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

64 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.2, s. 1.2.

65 Ibid., S. 2.1.

66 Ibid.

67 Ibid.

68 Ibid., item 2.8, s. F2

69 Ibid.

70 Ibid., s. F3.

71 Ibid, item 6.2, s. 6.

72 Ibid., S. 7.

73 Ibid.

74 Exhibit 4, NDP for Mexico (September 29, 2021).

75 Exhibits 6, Country Conditions, received October 12, 2021, 21 items, 117 pages.

76 Exhibit 4, NDP for Mexico (September 29, 2021), item 7.18, s. 3.1.

77 Ibid., S. 3.3.

78 Ibid., item 7.17, s. State Confrontation.

79 Ibid. item 2.1, s. Executive Summary.

80 Ibid., item 7.12 at p. 1.

81 Ibid., at p. 2.

82 Ibid., item 2.2, s. Enforced Disappearances.

83 Ibid., item 2.3, s. Criminal Justice System.

84 Ibid., s. Disappearances.

85 Ibid., item 1.10, s. 3.

86 Ibid.

87 Ibid., s. F.3.

88 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages, item 7, at p.30.

89 Exhibit 4, NDP for Mexico (September 29, 2021).

90 Ibid.

91 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages.

92 Rasaratnam, Sivaganthan v. MEI (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported:

Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.

93 Thirunavukkarasu, Sathiyanathan v. MEI (F.C.A., no. A-81-92), Heald, Linden, Rolland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

94 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, section 97(1) (b) (ii).

95 Exhibit 4, NDP for Mexico (September 29, 2021); Exhibit 6, Country Conditions, received October 12, 2021, 21

items, 117 pages.

96 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.12., Geography.

97 Ibid., item 7.17., at p.27.

98 Ibid., item 7.15, s. 4.2.

99 Ibid.

100 Ibid.

101 Ibid.

102 Ibid., item 7.18, s. 2.1.2.

Categories
All Countries Mexico

2019 RLLR 218

Citation: 2019 RLLR 218
Tribunal: Refugee Protection Division
Date of Decision: October 22, 2019
Panel: David D’Intino
Counsel for the Claimant(s): Clement Osawe
Country: Mexico
RPD Number: TB8-15170
Associated RPD Number(s): TB8-15187
ATIP Number: A-2020-00859
ATIP Pages: 003052-003066

REASONS FOR DECISION

[1]       XXXX XXXX XXXX XXXX (the principal claimant) and her son XXXX XXXX XXXX XXXX (minor claimant) are both Mexican citizens and claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1

DESIGNATED REPRESENTATIVE

[2]       The principal claimant was appointed as the designated representative for the minor claimant. Their claims were heard jointly pursuant to rule 55 of the RPD Rules.

ALLEGATIONS

[3]       The claimants’ allegations are fully set out in the principal claimant’s basis of claim (BOC) form and attached narrative.2 To summarize, the principal claimant alleges that her son faces a serious possibility of persecution or a risk to life or of cruel and unusual punishment or treatment in Mexico on account of his diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX.

DETERMINATION

[4]       The principal claimant is neither a Convention refugee under s. 96 nor a person in need of protection under s. 97(1), as she has failed to demonstrate a serious possibility of persecution on a Convention ground, or a personalized, forward-facing risk to life or of cruel and unusual treatment or punishment on a balance of probabilities.

[5]       The minor claimant is a Convention refugee under s. 96. He has established a serious possibility of persecution on a Convention ground, as a member of a particular social group, persons with XXXX XXXX XXXX XXXX XXXX XXXX

DETERMINATIVE ISSUES

[6]       The determinative issue for the principal claimant was a nexus to the Convention and generalized risk under s. 97.

ANALYSIS

Identity

[7]       The claimants’ personal identities as nationals of Mexico were established on a balance of probabilities by their Mexican passports3 and birth certificates4.

Exclusion 1(F)(B)

[8]       On the first date of the hearing, the principal claimant had not provided a consent or family court from Mexico allowing the minor claimant to leave the country and satisfy me that exclusion under article 1(f)(b) was not an issue.

[9]       On that basis, I granted an adjournment to allow the principal claimant to obtain a consent letter signed by the minor claimant’s father and provide that to the Board.

[10]     Subsequently, on XXXX XXXX XXXX 2019, I received said letter5 from XXXX XXXX XXXX who is XXXX father. This latter satisfied my concerns such that I was able to determine that exclusion under article 1(f)(b) was no longer an issue.

Credibility

[11]     The principal claimant provided testimony on behalf of her son, who is XXXX XXXX XXXX and has significant XXXX deficits. The principal claimant was a credible witness. Her evidence was straightforward and consistent with that of her narrative. She did not embellish her evidence and her testimony was free from any material omissions or contradictions.

[12]     As such, I make the follow findings of fact:

  1. When XXXX was approximately XXXX years of age, the principal claimant began to suspect he had some XXXX difficulties. He was only able to speak about ten words; he was not able to get rid of diapers and would become aggressive when he was in places with many people around;
  2. In approximately 2011, the principal claimant enrolled her son in the XXXX program which is an educational program in Mexico City for children with XXXX. He was diagnosed accordingly by the program and was assigned to a therapy center;
  3. After a few weeks in the program, XXXX expressed a reluctance to return there and the principal claimant indicates that he regressed to soiling himself. The principal claimant confronted the teachers and the headmaster at the school and was told XXXX was not following the rules and was disrupting classes;
  4. As a result, XXXX would come home with scratches or irritation on his body. While the school did not admit that their staff was responsible for these marks, the principal claimant felt that the headmaster was communicating “with a smirk or a smile” that they were acknowledging responsibility;
  5. The principal claimant kept XXXX in the program for a while to see if things improved but when they did not, she removed him from XXXX the following year when he was XXXX years old;
  6. When XXXX was XXXX years old, the principal claimant registered him at XXXX XXXX a government funded school for children with disabilities. XXXX remained in that program for one year. There was a ratio of about one teacher for every ten to thirteen children, and the minor claimant was very nervous there. He would be screamed at for not complying with the teachers directions and would start to cry;
  7. After removing him from XXXX XXXX the principal claimant did not enroll XXXX in any further programming;
  8. The principal claimant does not receive any financial assistance for XXXX from the child’s father. She had worked as a XXXXand aXXXX XXXX until the age of XXXX in Mexico and stopped working when she married. Subsequent to that, she sold XXXX XXXX from home and also worked at a XXXX XXXX or similar business;
  9. The principal claimant has been on a waiting list in Mexico for government assistance for her son since 2012. Her application has not yet been decided on. She was able to pay a small amount for the XXXXandXXXX XXXX programs from her own earnings, but was unable to afford more expensive therapies through the Mexico City XXXX XXXX;
  10. The principal claimant alleges XXXX is discriminated against by friends and family. For example, her friends don’t allow their children to interact with XXXX out of fear. Her sister and brother-in-law physically abused XXXX when she would leave him in their care to go to work;
  11. The principal claimant has two other children, XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX XXXX who reside with her spouse, from whom she is separated. Those children “cannot stand” their brother and do not help with his care;
  12. Parents and members of the community would keep their distance from the minor claimant or give him odd looks. Children his age would mock him and push him around;
  13. The principal claimant fears that if returned to Mexico, XXXX would be physically and XXXX mistreated and could end up “disappeared” – Mexican parlance referring to being kidnapped or killed and never found;

NEXUS

[13]     I find that the minor claimant has a nexus to the Convention as a member of a particular social group, persons with XXXX XXXX XXXX. Relying on the Supreme Court of Canada decision in Ward6, I find that the minor claimant’s diagnosis on the XXXX XXXX constitutes “an innate and unchangeable characteristic” for which the principal claimant alleges he is being persecuted by Mexican society in general. XXXX XXXX XXXX XXXX XXXX XXXX is classified as a neurodevelopmental disorder in the Diagnostic and Statistical Manual of Mental Disorder version 5 (DSM V) which is published by the American Psychiatric Association.7

[14]     I find that the principal claimant does not have a nexus to the Convention, as she has not alleged a serious possibility of persecution by reason of her race, nationality, ethnicity, political opinion, religion or membership in a particular social group. I likewise find that the NDP for Mexico8 does not support a serious possibility that she would be persecuted as a member of XXXX family nor did she make such allegations.

[15]     The principal claimant did profess a fear of “general instability” in Mexico related to criminal activity. Criminal acts do not generally establish a nexus to a Convention ground.9

[16]     As such I find that her fear is best assessed under s. 97(1) of the IRPA.

Subjective Fear

[17]     As XXXX is non-verbal, the evidence in this claim was entered by the principal claimant on his behalf. I have already found her evidence to be credible on a balance of probabilities. I likewise find that there is no evidence of action or inaction on the part of the claimants that could be seen as being inconsistent with a professed subjective fear of persecution in Mexico.

[18]     Based on those conclusions I do find that the minor claimant has established a subjective fear of persecution on a Convention ground.

Objective Basis

Does the mistreatment of persons with XXXX in Mexico rise to the level of persecution?

[19]     In order to ground a successful claim under s. 96, the principal claimant must demonstrate a serious possibility of persecution to her son, on the basis of his XXXX diagnosis. Therefore, I must consider now whether the mistreatment of her son specifically, and in the broader sense, the mistreatment of persons with disabilities in Mexico generally, amounts to persecution.

[20]     Persecution is a nebulous concept, in that it does not have a neat and tidy definition. Rather, as a concept it is explained more so by the presence of certain factors in a given scenario, or conversely, by what it is not.

[21]     First, to be considered persecution, the mistreatment suffered or anticipated must be serious.10 I then must examine firstly, what interest of the claimant might be harmed and secondly, to what extent the subsistence, enjoyment, expression or exercise of that interest might be compromised. There must be a link between the serious, compromising of interest with the denial of a core human right.11

[22]     I must also consider whether the conduct being complained of rises to the level of persecution, or where it amounts merely to discrimination – the distinction being the degree of serious of the harm involved.12 The Court of Appeal has observed that “the dividing line between persecution and discrimination or harassment is difficult to establish”.13

[23]     A second feature of persecution is that the harm occurs with repetition, persistence or in a systemic way.14 There are however some harms, such as female genital mutilation or death, which imply a degree of permanence such that they cannot be, or are unlikely to be, repeated. It is trite law however, that a claimant need not demonstrate that they have suffered incidents of past persecution to be a successful refugee claimant, as the test is forward-looking.

[24]     Lastly, I must also consider whether acts of discrimination cumulatively amount to persecution against a claimant. Where the RPD considers these incidents individually, but not cumulatively, its commits a reversible error.15

[25]     Turning now to the facts of this case, I must apply the law to the facts to determine whether the treatment XXXX has received in Mexico rises to the level of persecution, such that he has a well-founded fear of same, as contemplated by section 96 of IRPA.

[26]     The first incident concerns his treatment at XXXX XXXX where the principal claimant indicated that XXXX would come home with marks and irritation on his skin and would revert to soiling himself. The agent of persecution in this situation are the instructors and staff at XXXX. The conduct in question is difficult to assess because the minor claimant is unable to express himself due to his XXXX limitations. The principal claimant is effectively deducing what occurred her son based on her observations of his behaviour.

[27]     The principal claimant did not specifically assert that XXXX was mistreated at XXXX because of his diagnosis of XXXX. She in fact was unsure of whether the real cause of this mistreatment was as a result of the staff not having the training or the temperament to deal with the special needs of a child like XXXX XXXX XXXX did not admit to physically disciplining XXXX but rather, retorted that he was disruptive in the classroom or was not obeying the rules.

[28]     I have no reservation in finding that XXXX was physically disciplined at XXXX for some reason and that such treatment was inappropriate and would constitute a criminal offence if committed in Ontario. However, I do not find on a balance of probabilities that such mistreatment occurred by reason of his diagnosis of XXXX.

[29]     The second incident concerns the treatment of the minor claimant at the XXXX program. The principal claimant explained that there would be one teacher for approximately 10-13 children and they would scream at XXXX for not listening to their directions. He would then become upset and would start crying and tell his mother that he wanted to leave.

[30]     The agent of persecution in this instance are the teachers and staff at the XXXX program. Again, due to his XXXX limitations I am unable to hear from XXXX precisely what occurred during this time. In contrast to the incidents at XXXX, the principal claimant in this case was able to observe the yelling at her son by staff at XXXX and thus provide first-hand evidence.

[31]     Compared to the previous incident, the conduct in this case is less severe. The agent of persecution is not the same. While I find that yelling at a child with special needs is repugnant, I do not find that this conduct rises to the level of persecution, as it does not amount to the denial or interference with a core human right.

[32]     The third incident I must consider involved the treatment of XXXX by the principal claimant’s brother-in-law. The principal claimant testified that she would leave XXXX in the care of her sister and brother-in-law for a time while she went to work. She would then start to see bruising on XXXX body, on his cheek and mouth. He would beg his mother not to go. When the principal claimant confronted her sister, the latter claimed to have no seen what happened. The brother-in-law admitted that he “overdid it” and that the child could not clean himself properly and wasted too much toilet paper. The principal claimant stopped having her son cared for by her sister and brother-in-law as a result.

[33]     The agent of persecution in this situation was the principal claimant’s brother-in-law. The degree of harm was most severe in this situation and in my view does rise to a level where one of XXXX core human rights was interfered with – his right to security of the person.

[34]     Much like in the previous two instances, the principal claimant herself has acknowledged the possibility that her son is being mistreated because those caregivers are ill-equipped to deal with a child with his needs. Certainly, caring for a child with special needs requires a certain type of person, one who is blessed with patience, compassion and understanding. It is conceivable that a person who lacks these qualities when placed in a situation where they are caring for 10-13 other children, would become overwhelmed and frustrated. The fact remains however that whomever cares for this child, they mistreat him in some way. Whether they do so out of frustration or because of his disability, the effect on XXXX is the same.

[35]     Cumulatively assessing these incidents, I find that though they involve three different agents of persecution and three differing degrees of conduct, they form a pattern of discrimination or outright abuse which endangers the minor claimant’s security of the person.

[36]     I therefore find that these past incidents cumulatively amount to persecution on a Convention ground. I will now turn to the NDP to analyze whether there is a serious future possibility of persecution for the minor claimant, should they return to Mexico.

[37]     The National Documentation Package (NDP) for Mexico16 is sparse with regard to its analysis of the situation for persons with disabilities in Mexico. Item 2.1, the U.S. DoS Report on Human Rights Practices for 2018 says the following on this issue:

The law prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities. The government did not effectively enforce the law. The law requires the Ministry of Health to promote the creation of long-term institutions for persons with disabilities in distress, and the Ministry of Social Development must establish specialized institutions to care for, protect, and house poor, neglected, or marginalized persons with disabilities.

NGOs reported authorities had not implemented programs for community integration. NGOs reported no changes in the mental health system to create community services nor any efforts by authorities to have independent experts monitor human rights violations in psychiatric institutions. Public buildings and facilities often did not comply with the law requiring access for persons with disabilities.

The education system provided special education for students with disabilities nationwide. Children with disabilities attended school at a lower rate than those without disabilities.

Abuses in mental health institutions and care facilities, including those for children, were a problem. Abuses of persons with disabilities included the use of physical and chemical restraints, physical and sexual abuse, trafficking, forced labor, disappearance, and the illegal adoption of institutionalized children.

Institutionalized persons with disabilities often lacked adequate medical care and rehabilitation services, privacy, and clothing; they often ate, slept, and bathed in unhygienic conditions. They were vulnerable to abuse from staff members, other patients, or guests at facilities where there was inadequate supervision. Documentation supporting the person’s identity and origin was lacking. Access to justice was limited.

[38]     What I take from this report is that while Mexico has well-intentioned legislation on the books, the actual implementation of those laws is lacking and that has in part, led to inadequate conditions and even exploitation of persons with disabilities in institutionalized settings.

[39]     While these observations from institutional settings do not have an immediate factual nexus to the facts before me, I must consider the forward-facing nature of any risk or serious possibility of persecution to the minor claimant.

[40]     Exhibit 7 is a Response to Information Request (RIR) I asked to be commissioned for this claim. It examines the situation in Mexico for persons with autism and intellectual disabilities.

[41]     The RIR notes that an estimated 1 in every 115 children are on the autism spectrum in Mexico, totalling approximately 400,000 children living with the diagnosis throughout the country17.

[42]     According to the RIR18:

A 2008 study on autism and special education policy in Mexico reports the following:

Given the social stigma associated with disability, the incidence of autism among children within the family can magnify many other challenges Mexican families may encounter … . Due to the persistence of folk beliefs and misinformation about the sources of disability, families with children with autism report isolation or distance from other members of their extended family, changed behaviors among siblings, and feelings ranging from depression to burnout. [Lack of sufficient] [e]conomic resources are [a] frequently cited cause of familial stress, as parents attempt to secure the necessary funds to find appropriate support services or treatment for their child. (Tuman, et al. Apr. 2008, 4)

The Mexican government, in its combined second and third periodic reports to the UN Committee on the Rights of Persons with Disabilities, states the following:

Educational institutions are taking steps to raise awareness about persons with disabilities as rights holders. From 2014 to 2017, campaigns were conducted to provide information and raise awareness about different types of disability, such as autism [and] Down syndrome … , and about the Day of Persons with Disabilities, so as to promote harmonious relations and acceptance, eliminate barriers to learning and encourage participation. (Mexico 19 July 2018, para. 55)

Articles published by CE Noticias Financieras similarly mention there has been activities to raise awareness about autism in Mexico, such as conferences (CE Noticias Financieras 7 Sept. 2018) and the World Day of Autism Awareness (CE Noticias Financieras 2 Apr. 2019).

[43]     The RIR notes that there is a new Mental Health bill under review in Mexico, as well as a new general law which would increase protections for persons with XXXX.19 These laws are currently being examined, in part due to concerns raised by Human Rights organizations that certain provisions could violate the rights of concerned persons, for example, by legalizing involuntary admissions to psychiatric facilities or authorizing non-consensual medical treatment.

[44]     Mexico does have a number of publically and privately funded institutions which assist with the diagnosis, treatment and education of persons with XXXX. The RIR lists among them the Centra Integral de Salud Mental (CISAME); Clinica de Autismo; Autisimex; and Clinica Mexicana de Autismo U Alteraciones del Desarrollo20. With the exception of CISAME – of which the principal claimant was aware of and indicated that their services were not free – she was not aware of the existence of these other organizations, most of which are either publically funded or are non-profit organizations.

[45]     I find that there is support in the NDP and the RIR for an objective basis to the principal claimant’s fear, in the sense that inadequate medical care and even outright exploitation of persons in institutionalized settings occurs in Mexico, such that a forward-facing serious possibility of persecution does exist for XXXX.

[46]     XXXX has no cure. XXXX turned XXXXthis XXXX. His challenges persist and he is still non-verbal, possessing a vocabulary of two words. By all accounts he is dependent on his mother for care. I do not have an expert XXXX report before me which could provide a future XXXX for XXXX if he received proper intensive therapy for persons with XXXX. However, I do find that there is likelihood that at some point in his life he could find himself involuntarily admitted to a mental health institution in Mexico.

[47]     In that future hypothetical scenario, there is a serious possibility of persecution on account of his diagnosis, as illustrated in the above quoted portions of the NDP.

STATE PROTECTION

[48]     The NDP supports the conclusion that on the one hand, the government of Mexico has appeared to take the care and rights of persons with disabilities serious by passing various pieces of progressive legislation. On the other hand, it’s most recent mental health bills have been criticized for potentially legalizing involuntary admissions to institutions or authorizing non­ consensual medical treatments, both of which would constitute grave violations of the personal integrity of such persons.

[49]     Furthermore, the NDP is quite unequivocal in that despite the passing of legislation designed to protect persons with mental health challenges or disabilities, serious abuses and outright exploitation of those same persons are still occurring in various institutional settings in Mexico.

[50]     Conservative attitudes and inaccurate assumptions about persons with disabilities persist in Mexico, such that in my view, effective state protection would not be forthcoming nor adequate for the minor claimant.

INTERNAL FLIGHT ALTERNATIVE

[51]     The claimants resided in Mexico City, the capital of Mexico. The RIR I had commissioned for this claim suggests that Mexico City has the most programming and support for persons like XXXX. If the claimant is experiencing persecution in Mexico City, then it is more likely than not that he would experience that persecution throughout Mexico.

[52]     Furthermore, given that he experienced various degrees of discrimination and abuse from various persons and institutions, I find that Mexican society as a whole is an agent of persecution based on their attitudes, fear and discriminatory behaviour towards XXXX and other children like him.

[53]     As such, I find that there is no location within Mexico that is both safe and reasonable for the minor claimant.

CONCLUSION ON THE MINOR CLAIMANT

[54]     I find that the minor claimant is a Convention refugee under s. 96, as he has established a serious possibility of persecution on a Convention ground in Mexico.

[55]     His claim is therefore accepted.

CONCLUSION ON THE PRINCIPAL CLAIMANT

[56]     The principal claimant did not argue that she was experiencing persecution in Mexico on account of her son.

[57]     I did try to question the principal claimant on whether she fears anything or anyone in Mexico. She indicated that she feared the general insecurity in Mexico. I asked her for some specific incidents that caused her to fear for her safety. She told me that when she was XXXX, she robbed of her watch and the victim of a failed kidnapping attempt as she was getting on a bus. For reference, the principal claimant is now XXXX years of age.

[58]     In 2015, the principal claimant was walking from work at 2:00am and felt that someone was behind her following her. She ran away and then returned home.

[59]     The principal claimant indicated that it was not the same people involved in either event. Aside from some foul language, nothing was said to her that would indicate why she was being robbed for example.

[60]     These two incidents were approximately XXXX years apart. There does not appear to be any common threads between the two incidents or any evidence upon which I can find that the principal claimant was personally targeted.

[61]     Robbery and violence are unfortunately very common in Mexico.

[62]     I find that the principal claimant fears robbery, abduction and general “insecurity” in Mexico. Under Section 97(1)(b) of the IRPA, a claimant is only a person in need of protection if removal to their country would subject them to a risk to their life, or a risk of cruel and unusual treatment or punishment or danger of torture and it is not a risk that would be faced generally by other individuals in or from that country.

[63]     The s.97(1)(b) exception has been held to exclude generalized risks associated with widespread crime21, organized crime, violence, extortion, police corruption and abuse of authority, human rights violations, general insecurity, terrorism, suicide bombing, political extremism and activities of armed military groups.

[64]     Not everyone facing a risk to life or a risk of cruel and unusual treatment or punishment will be found to be a person in need of protection, because Section 97 (1)(b)(ii) of the IRPA specifically excludes those persons who face a risk that is “faced generally by other individuals in or from that country.” There is nothing in s.97 (1) (b) (ii) that requires the Board to interpret “generally” as applying to all citizens. The word generally is commonly used to mean “prevalent” or “widespread”22. The risk must not be an indiscriminate or random risk faced by other citizens.

[65]     Absent any evidence from the principal claimant which would establish a personal targeting on these two occasions, I find that it was more likely than not that she was the victim of randomized violence, which is also not forward-facing.

[66]     The principal claimant is neither a Convention refugee nor a person in need of protection, as she has failed to demonstrate a serious possibility of future persecution on a Convention ground, or a personalized forward-facing risk to life or of cruel and unusual punishment or treatment in Mexico.

[67]     Her claim is therefore rejected.

(signed)           David D’Intino

October 22, 2019

Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended.

2 Exhibit 2.1

3 Exhibit 1

4 Exhibit 4.

5 Exhibit 8

6 Ward v. Canada

https://www.psychiatry.org/psychiatrists/practice/dsm

8 Exhibit 3. National Documentation Package (NDP) for Mexico (March 29, 2019 version).

Kang v. Canada (MCI), 2005 FC 1128, at para. 10.

10 Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.)

11 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 20 Imm. L.R. (2d) 85.

12 Supra note xii.

13 Ibid.

14 Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.); Ward supra note xiii.

15 Mete, Dursun Ali v. M.C.I. (F.C., no. IMM-2509-04), Dawson, June 17, 2005.

16 Exhibit 3.

17 Exhibit 7, pg 2.

18 Ibid at pgs 2-3

19 Ibid at pg 6.

20 Ibid at pg 7-8.

21 Mejia, Maria Consuelo Martinez v. M.C.I. (F.C., no. IMM-653-03), O’Reilly, March 26, 2004; 2004 FC. De Matos Correira, Oslvado Jr v. M.C.I. (F.C., no. IMM-5151-04), O’Keefe, August 3, 2005; 2005 FC l 060 (CanLII)

22 Osorio, Henry Mauricio Gil v. M.C.I. (F.C., no. IMM-585-05), Snider, October 27, 2005; 2005 FC 1459 (CanLII)

Categories
All Countries Mexico

2020 RLLR 166

Citation: 2020 RLLR 166
Tribunal: Refugee Protection Division
Date of Decision: October 26, 2020
Panel: François Savoie
Counsel for the Claimant(s): Émile Le-Huy
Country: Mexico
RPD Number: MB9-13609
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000048-000054

REASONS FOR DECISION

 INTRODUCTION

 [1]      XXXX XXXX XXXX XXXX, a citizen of Mexico, claims refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2]       The claimant is a trans woman, trans rights activist and former sex worker from Mexico who fears the police and her former procurer.

[3]       The claimant was illegally detained by the police on multiple occasions. Most recently, she was detained in XXXX 2016, ahead of a press conference organized by a trans rights organization she helped found in Monterrey.

[4]       The claimant was also kidnapped and severely beaten by the police in Puebla in XXXX 2018.

[5]       The claimant fears further mistreatment from the police were she to return to Mexico.

[6]       She also fears retaliation from her former procurer for having publicly denounced her practice of charging a fee to assist trans women in changing their legal names and legal gender in Mexico City. She also fears retaliation from her for having denounced her mistreatment to the police.

[7]       The claimant left Mexico on XXXX XXXX XXXX 2018 and arrived in Montreal the next day. She filed for refugee protection on XXXX XXXX XXXX 2019.

DECISION

[8]       The Tribunal finds that the claimant is a “Convention Refugee” pursuant to section 96 of the IRPA.

ANALYSIS

[9]       In the present case, the Tribunal considered the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guidelines).

Identity

[10]     The claimant’s personal identity and her national identity as a citizen of Mexico are established, on a balance of probabilities, by a copy of her passport filed as evidence.

 Credibility

[11]     The Tribunal finds the claimant credible on the material aspects of her claim; namely that she is a trans woman from Mexico.

[12]     The claimant answered all questions put to her fully, spontaneously and without evasion.

[13]     The claimant was able to explain with great details the difference, stigma, shame, and harm she felt growing up as a transgender woman.

 [14]    The claimant also explained how she began taking hormones at a young age, and later started taking testosterone blockers. She provided details about how she procured these medications. A medical report filed as evidence also showed that she had breast implants.1

[15]     The claimant explained at large the types of situations she frequently faced in Mexico as a transgender woman. Some of the specific examples she gave could even be largely corroborated by the objective documentary evidence. As an example, the objective documentary evidence states that “[t]ransgender women [are] frequently accused of being involved in sex work, even when they [are] simply running errands like going to buy milk.”2 This is in line with the claimant’s testimony that she was once arrested and detained by the police while simply going to buy bread and milk at a depanneur.

[16]     In addition to her testimony, the Tribunal carefully reviewed and considered documents filed by the claimant in support of her allegations. The Tribunal asked the claimant to explain what the process of changing her legal gender entailed. After having heard the claimant on the matter, the Tribunal asked the claimant how the process was reflected in the documentary evidence she provided. The claimant first pointed to her national elector’s card,3 which was issued prior to the name and gender change. This card, issued in 2013, showed her former male name and showed her gender as male. She then pointed to the birth certificate which was issued following her legal name and gender change, issued in 2015.4 This document showed her new female name and showed her gender as female.

[17]     Other evidence also allowed the Tribunal to understand the claimant’s activism in the trans sphere. Not only did the claimant seek justice for herself, she also sought to help members of her community by lobbying governments.

Incompatible Behaviour – Travel ta Spain and Return to Mexico

[18]     According to her IMM-5669 form, the claimant travelled to Spain in 2017 to study XXXX XXXX. While in Spain, the claimant did not file for refugee protection and subsequently returned to Mexico.

[19]     The Tribunal asked the claimant why she had not filed for refugee protection in Spain. The claimant testified that she did not feel that things were so bad in Mexico at that time. She also testified that she had started her work as an activist and returned to Mexico to help her friends with their activism project.

[20]     The Tribunal notes that the claimant’s travel to Spain happened prior to the last set of events that lead the claimant to leave Mexico for Canada. The Tribunal is also mindful that, according to the Chairperson’s Guidelines 9, it may be plausible that a trans woman like the claimant would engage “in activity that might put [her] at risk in [her] country of reference.”5 Considering the above and the claimant’s profile as an activist, the Tribunal makes no implausibility findings in relation to her failure to file for refugee protection in Spain and in relation to her return to Mexico.

Delay in Claiming Refugee Protection in Canada

[21]     The claimant spent just shy of six months in Canada prior to filing for refugee protection.

[22]     At the hearing, the claimant testified that she had been asked by the Canada Border Services Agency (CBSA) whether she wanted to claim asylum in Canada on arrival in Montreal and that she had answered no to that question.

[23]     Considering the claimant’s personal situation as a trans woman who has been through a lot of violence, the Tribunal does not make any negative inference related to her delay in claiming. The Tribunal subscribes to the observations made by the claimant’s counsel according to which the claimant may not have been necessarily familiar with the workings of refugee claims in Canada and that it is quite possible that she may have had a psychological difficulty in taking action.

Nexus

[24]     For the claim to succeed under section 96 of the IRPA, the persecution must be linked to a Convention ground, in other words, there must be a nexus.

[25]     The Tribunal finds that the claimant has established a nexus to the Convention, as the harm feared is on account of her membership in a particular social group (trans women).

[26]     For the reasons set out under the State Protection and Internal Flight Alternative sections below, the Tribunal also finds that, on a balance of probabilities, the claimant has a serious possibility of facing serious harm should she return to Mexico. The objective documentary evidence tendered into evidence by the board supports this finding.

State Protection

[27]     Canada’s responsibility to provide international protection to the claimant only becomes engaged when national or state protection is unavailable to the claimant. The claimant has the burden of rebutting the presumption of state protection. The Tribunal must now determine whether the claimant has presented clear and convincing evidence to rebut the presumption of state protection.

[28]     According to the objective documentary evidence, transgender women often do not report hate crimes or police abuse because the authorities rarely investigate these crimes.6 Crimes committed towards trans women are frequently minimized and mischaracterized by authorities.7

[29]     The objective documentary evidence also reports that police officers subject transgender women to arrest, extortion, physical abuse, arbitrary detention, torture, and other human rights violations that are often unpunished.8

[30]     While the Mexican government has enacted laws aimed at protecting sexual minorities, such laws only provide explicit protections based on sexual orientation and not based on gender identity.9 The fact that the claimant was able to have her name and gender changed on her birth certificate does show that the government is making steps in the right direction, however, legal recognition does not necessarily translate into adequate protection. According to the objective documentary evidence, “federal antidiscrimination laws do not protect transgender communities from persecution because the Mexican government is unable to enforce them, especially because the police themselves are often the perpetrators of violence against transgender people.”10 Moreover, it is far from clear whether the enactment of antidiscrimination laws “has actually led to an improvement in the treatment of LGBT people generally or transgender women in particular.”11

[31]     Having considered the claimant’s testimony and the objective documentary evidence regarding the availability of state protection for trans women in Mexico, the Tribunal is of the view that evidence of Mexico’ s inability to protect trans women is clear and convincing. The Tribunal therefore finds that, on a balance of probabilities, the state protection afforded to trans women in Mexico is inadequate and that the claimant has rebutted the presumption that state protection is available in her country.

Internal Flight Alternative (IFA)

 [32]    According to the objective documentary evidence, Mexico has the second-highest index of crimes motivated by transphobia in Latin America after Brazil.12 Geographically, transphobic murders occur throughout the country including in areas with more progressive laws such as Mexico City.13

[33]     Nothing in the evidence suggests that the claimant could be safe outside of her home area. The claimant testified that she moved across the country on several occasions, yet always ended up being badly treated by the police everywhere she went.

[34]     The Tribunal finds that there is, on a balance of probabilities, a serious probability of the claimant being persecuted throughout Mexico. There are no internal flight alternatives available to the claimant.

CONCLUSION

[35]     Having considered all the evidence, the Tribunal determines that there’s a serious possibility that the claimant would be persecuted in her country.

[36]     The Tribunal concludes that the claimant is a Convention refugee.

[37]     The claim of XXXX XXXX XXXX XXXX is accepted.

(signed) François Savoie      

October 26, 2020

1      Document 4 – Exhibit D-6.

2      Document 3 – National Documentation Package (NDP), Mexico, 30 September 2020, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT            Clinic. May 2016, page 13.

3      Document 4 – Exhibit D-10.

4      Document 5 – Birth Certificate issued on XXXX XXXX, 2015 (Submitted during the hearing).

5      Guidelines 9 – 7.5.1 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and     Gender Identity and Expression. Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the               Immigration and Refugee Protection Act. Effective date: May 1, 2017.

6      Supra, note 2, page 12.

7      Idem.

8      Supra, note 2, page 18.

9      Ibid, page 11.

10     Idem.

11     Ibid, page 10.

12     Ibid, page 15.

13     Idem.

Categories
All Countries Mexico

2021 RLLR 29

Citation: 2021 RLLR 29
Tribunal: Refugee Protection Division
Date of Decision: March 17, 2021
Panel: Vandana Patel
Counsel for the Claimant(s): Adrienne C. Smith
Country: Mexico
RPD Number: TB9-32419
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000141-000150

REASONS FOR DECISION

[1]     XXXX XXXX XXXX XXXX XXXX XXXX (the claimant), a citizen of Mexico, seeks refugee protection, under 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 Basis of Claim (BOC) forms.2 The claimant fears persecution from her family and society generally because of her gender identity. She fears that, if forced to return to the transphobic environment in Mexico, she will be subjected to persecution based on her gender identity from members of Mexican society, including certain members of her family, prospective employers and the authorities. The claimant alleges that she has been verbally, emotionally, psychologically and physically abused by members of her family and others, during her adolescence and adulthood, in Mexico. The claimant also alleges that she suffered discrimination and violence due to her gender identity.

DETERMINATION

[3]     The panel finds that the claimant would face a serious possibility of persecution on a Convention ground upon return to Mexico. She is a Convention refugee and the claim is accepted.

ISSUES

Nexus

[4]     The claimant alleges that the persecution she faces is due to her membership in a particular social group in Mexico, namely trans 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

Credible Subjective Fear

[6]     In considering credibility, the panel is aware of the difficulties that may be faced by the claimant, a 45 year old trans woman, 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.4

[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)5 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.

[8]     The claimant was not reluctant to discuss her gender identity. She was born a male but she has openly identified as a trans female for many years, since at least when she was a teenager. She testified about her fears, including having to hide her gender identity, based on her past experiences in Mexico, if she must return to Mexico. The claimant testified that when she lived in Mexico, including in Mexico City, she had to bide her identity as a trans woman. Members of her family and other members of the community have made transphobic comments about her gender identity.

[9]     The claimant had great difficulty testifying about being abducted and sent to a “conversion therapy” clinic by her family to change her gender identity. In this regard, the panel was cognizant of the claimant’s XXXX health issues, adding to the marginalization factor. The claimant was deemed to be a vulnerable person based on medical evidence and the panel made accommodations. Guideline 8 – Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada6 was considered and applied. She testified about her fears about being misgendered. violence and being killed because of her gender identity. She fears for her safety living as a trans woman anywhere in Mexico.

[10]   The claimant’s history of social isolation, mistreatment and lack of social support and mental disabilities were considered in terms of the way she testified. The report by the XXXX resident submitted was considered; in particular the diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (in remission) and XXXX XXXX XXXX (in remission); and the significant impact of the claimant’s experience of emotional and physical violence as a result of her gender identity.7 The report states, “On assessment, she reports a significant trauma history, involving a forced institutionalization while living in Acapulco, Mexico several years ago, which has resulted in symptoms of XXXX XXXX XXXX XXXX, including reexperiencing, XXXX XXXX XXXX and negative XXXX in XXXX XXXX and XXXX.

[11]   Given that the claimant was straightforward and gave many details in other areas of her testimony, the panel accepts that she experienced a traumatic experience, involving some kind of conversion therapy that had a link to her gender identity. For example, she testified about them cutting her hair.

[12]   The claimant gave evidence as to why she had re-availed herself of Mexico after years in the U.S., why she did not make an asylum claim in the U.S. and why she took so long to make a refugee claim in Canada. The panel accepts this as not being determinative of the claim,8 given her residual profile, a trans woman, for which there is a serious possibility of forward-looking persecution in Mexico, based on the National Documentation Package for Mexico9 and the claimant’s documentary disclosure.10

[13]   Although credibility, persecution versus discrimination and whether she has a subjective fear of return to Mexico (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 years. The panel accepts that the claimant is a transgender woman and that she has a subjective fear of persecution in Mexico.

[14]   Moreover, the claimant’s testimony was corroborated by copious amounts of corroborative documentary evidence,11 including medical reports from XXXX 2020, letter of support from the Hola Group dated XXXX XXXX XXXX 2020, letter of support from XXXX XXXX XXXX XXXX XXXX Neighbourhood Centre, letter of support from XXXX XXXX XXXX, The 519 (dated XXXX XXXX XXXX 2020), letter of support from XXXX XXXX, The 519 (dated XXXX XXXX XXXX 2021), several other support letters from her friends, emails related to her asylum application in the U.S., an email from the claimant to Adam House requesting assistance in refugee and legal aid process dated XXXX XXXX XXXX 2019, other emails relating to making her claim in Canada, photographs, and media articles confirming the situation for LGBTQ communities in Mexico and in illegal rehab centres in Mexico. Thus, the panel finds, on a balance of probabilities, that the claimant has subjective fear.

Objective Basis

[15]   Transgender women in Mexico still face pervasive persecution based on their identity gender identity and expression. Documentation 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

[16]   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, many challenges remain, particularly for persons with the claimant’s profile.

[17]   While unprecedented political and legal gains have been made in Mexico, the religious, cultural and social environment in most of Mexico remains repressive, and often dangerous.13 Machista ideals of manly appearance and behavior contribute to extreme prejudices against sexual minorities, and violence against them.

[18]   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 claimant’s circumstances, 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.

[19]   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.14

[20]   A recent Response to Information Request further notes from various sources that despite the president creating the National Guard, which began its activities to fight organized crime on June 30, 2019, “at the expense of the local police forces that are experiencing precarious conditions”, “the organization has failed to address criminality in a measurable way” and “violence has not decreased in the three states with the greatest National Guard contingent.”15

[21]   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.16 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 identity documents to match their gender presentation. It is indicated:

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 trea1rnen1 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 io 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.211 Even where it is available, such care can be prohibitively expensive for transgender women already suffering the effects of economic marginalization discussed earlier.212 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.17

[22]     Further documentation notes:

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 … 18 [footnotes omitted]

[23]   Thus, the panel finds, on a balance of probabilities, that there is an objective basis for the claimant’s subjective fear.

No State Protection

[24]   In light of the above documentary evidence regarding similarly situated persons in Mexico who did not receive adequate state protection, there is sufficient evidence before the panel to conclude that, despite efforts made by the state, at this time, the state is not able to offer adequate protection19 to trans women, like the claimant.

[25]   Therefore, the panel finds that there exists clear, convincing and cogent proof that state protection is not available to trans women, 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.

Internal Flight Alternative (IFA)

[26]   With respect to an IFA, it is clear from the documentary evidence that societal prejudices against transgender persons are found all over Mexico, including Mexico City. Documentation reports as follows:

Police harassment against the LGBT community remains high in Mexico City as well. Despite the reputation of the Zona Rosa district of Mexico City as an LGBT neighborhood, extortion and harassment particularly of transgender women continues there. As described above, Mexico City also has the highest rate of transphobic murders in the country. Moving to Mexico City will therefore not protect transgender women from persecution: they will remain vulnerable no matter where they reside in Mexico.20 [footnotes omitted]

[27]   There is blatant disregard for the safety and wellbeing of trans women, like the claimant. Homicides and assaults against these groups continue under a backdrop of religious and cultural tolerance and moral condemnation. Having to hide her gender identity amounts to a serious interference with a basic human right, constituting persecution.21 Based on the evidence adduced, the panel finds that there is no viable IFA for trans women in Mexico City or throughout Mexico.

[28]   Based on the totality of the evidence adduced, the panel finds, on a balance of probabilities, that there is a serious possibility, based on her evidence, that she would be persecuted due to her gender identity as a trans woman should she return to Mexico.

CONCLUSION

[29]   Accordingly, the panel accepts the claimant as a Convention refugee. The claim is accepted.

(signed) Vandana Patel

March 17, 2021

Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).

2 Exhibit 2, Basis of Claim (BOC) form; and Exhibit 2.1, BOC amendment.

3 Exhibit 1, package of Information from CBSA/CIC, certified true copy of the claimant’s passport.

4 Exhibit 5.

5 Chairperson ‘s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.

6 Chairperson ‘s Guideline 8 Concerning Procedures with Respect to Vulnerable Persons Appearing Be/ore the Immigration and Refugee Board of Canada.

7 Exhibit 5, disclosure, pp. 28 to 34.

8 Rajudeen v. Canada (Minister of Employment & Immigration), [1984] F.C.J. No. 601, 55 N.R. 129 (F.C.A); and

Sukhu v. Canada (Minister of Citizenship & Immigration), 2008 FC 427.

9 Exhibit 3.

10 Exhibit 5.

11 Exbibit 5.

12 Exhibit 3, item 6.3.

13 Ibid., 6. 4.

14 Ibid., 6.3.

15 Ibid., item 7.18.

16 Ibid., item 6.4.

17 Ibid., item 6.3.

18 Ibid., item 6.1.

19 Ibid., item 6.4.

20 Ibid., item 6.3.

21 Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), 2004 FC 282; See also, Rocha Cortes v. Canada (Citizenship and Immigration), 2020 FC 661; and A.B. v. Canada (Citizenship and Immigration), 2020 FC203.

Categories
All Countries Mexico

2021 RLLR 13

Citation: 2021 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: June 17, 2021
Panel: Jodie Schmalzbauer
Counsel for the Claimant(s): Mary Jane Campigotto
Country: Mexico
RPD Number: VC1-02663
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000044-000050

REASONS FOR DECISION

INTRODUCTION

[1]     This is the decision of the Refugee Protection Division (“RPD”) in the claim of XXXX XXXX XXXXA.K.A XXXX XXXX XXXX (the “claimant”) as a citizen of Mexico who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).1

[2]     The panel has applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE) to understand cases involving sexual orientation, gender identity and expression, and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms.2

DETERMINATION

[3]     The panel finds that the claimant is a Convention refugee, as she does have a well-founded fear of persecution related to a Convention ground in Mexico.

ALLEGATIONS

[4]     The following is a brief synopsis of the allegations that the claimant put forth in the Basis of Claim (BOC) form and narrative.3 The claimant submits that she will continue to face serious discriminations amounting to persecution for her gender identity in Mexico.

[5]     The claimant submits that she has identified as a woman since her childhood. Her family had done their best when it came at first to “treating” the claimant with hormones to later supporting her, for who she is. The claimant has campaigned since her youth to educate and promote acceptance among children and the community. She continued studying education to support her passion in anti­bullying and inclusivity. The claimant decided to leave Mexico after her father had passed away, losing both of her parents, who were here “pillars” of support helped her to decide to move to a country that would accept her and let her live a peaceful life.

ANALYSIS

Identity/Country of Reference Mexico

[6]     The panel is satisfied on a balance of probabilities, in the claimant’s identity and his citizenship, considering the certified copy of Mexico passport on file.4

Well-Founded Fear of Persecution

[7]     The claimant fears persecution due to her membership in a particular social group, due to her sexual orientation and gender identity. The duty of this panel is to find if there is sufficient credible or trustworthy evidence to determine that there is more than a mere possibility that this claimant would be persecuted if she returned to Mexico.

[8]     The claimant testified in a very genuine, straightforward, emotional, and unassuming manner. She was passionate about her educational activities, she provided photos and testimony about the events in question.5 She spoke about her challenges and violence directed towards due to her gender identity. She submitted support letters, attesting to her personal history and her socially non­conforming gender identity.

[9]     According the Repot on Human Rights Conditions of Transgender Women:

Despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their gender identity and expression. 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 transgender women.6

Negative attitudes towards the LGBT community remain very common in Mexico.165 Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.7

[10]   Transgender women lack adequate healthcare in Mexico, many hide their transgender status to avoid hostility or threats from medical practitioners. There almost no availability of medical care for gender transition.8 The lack of positive protections on the basis of gender identity, leave transgender women vulnerable to employment discrimination. Few transgender women are able to sufficiently support themselves and end up resorting to sex work to survive, which results in yet more violence.9 Given the significant infringements upon the basic human rights of transgender women, the panel finds that evidence before it, establishes a systemic and pervasive treatment of transgender women, amounts to persecution.

[11]   Given the claimant’s credibility as to her gender identity and the unequivocal country condition evidence of the treatment of individuals similar to the claimant, the panel finds the claimant would face more than a serious possibility of persecution if she were to return to Mexico.

State Protection

[12]   State protection would not be reasonably forthcoming in this particular case. The panel has reviewed the country condition evidence of the situation of those with diverse SOGIE in Mexico and does recognize the Federal and some state protections in place.

[13]   In response to the growing public profile of sexual and gender minorities:

Some Mexican communities have explicitly targeted transgender women by enacting morality laws that criminalize “cross-dressing.” Local transgender women reported a dramatic increase in police harassment following the law’s passage. Transgender women stopped by the police frequently faced extortion; “[t]he police used… the threat of arrest… to secure money or sexual favors from [transgender women]. The passage of morality laws like those in Tecate criminalizes transgender women and sanctions police harassment and private discrimination. The passage and retention of these laws reflect continued societal hostility towards transgender people.10

[14]   Persons seeking protection from harassment and violence are routinely re-victimized by police their claims downplayed. Regular harassment by police is also reported. LGBTIQ+ individuals are frequently beaten, mocked, and forced to pay bribes in order to escape custody and in the recent years, have also reported physical assaults against them.11

[15]   Despite the existence of these formal protections around sexual orientation, advocates maintain that these laws have not prevented discrimination and violence. LGBT individuals face many barriers in exercising their rights under the antidiscrimination statutes. LGBT individuals who experience discrimination may be afraid to disclose their sexual orientation or gender identity to a federal agency and may be concerned about potential retaliation by public officials. This concern is especially relevant since the law does not have a clear enforcement mechanism or any provision that protects against retaliation.12

[16]   Considering the lack of any positive respect for the rights of LGBTIQ+ persons, and numerous reports of mistreatment of those persons with diverse SOGIE by law enforcement in evidence, the panel finds there is clear and convincing evidence that claimant, or persons similarly situated to the claimant, are unable to obtain adequate state protection.

Internal Flight Alternative

[17]   The first prong of this assessment is to determine on a balance of probabilities if there is a serious possibility of persecution in the internal flight alternative (IFA) or no risk to life, cruel and unusual treatment or punishment or danger of torture in the IFA.

[18]   The situation for individuals with diverse SOGIE is prevalent throughout Mexico. Although there are support groups in the larger centers in particular Mexico City, they have little impact in assisting members from violence or harassment. Negative attitudes towards the LGBT community remain very common in Mexico. Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.13

[19]   Although Mexico City, has been making serious efforts in assisting transgender women, including in documentation and identity changes, Mexico City also leads Mexico in the number or missing and murdered transgender women in Mexico. Considering, the evidence before this panel, there is no place in Mexico where the claimant would not face a serious possibility of persecution.

CONCLUSION

[20]   For the foregoing reasons, the panel concludes that the claimant is a Convention refugee and therefore accepts her claim. As the claim is accepted pursuant to Section 96 of the Act, there is no need to assess the claim made under Section 97(1)(b).

(signed) J. Schmalzbauer

June 17, 2021

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.

2 Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), May 1, 2017.

3 Exhibit 2.

4 Exhibit 1.

5 Exhibit 4.

6 National Documentation Package, Mexico, 30 April 2021, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016.

7  National Documentation Package, Mexico, 30 April 2021, tab 6.3.

8  National Documentation Package, Mexico, 30 April 2021, tab 6.3.

9 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

10 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

11 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

12 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

13 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

Categories
All Countries Mexico

2021 RLLR 13

Citation: 2021 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: June 17, 2021
Panel: Jodie Schmalzbauer
Counsel for the Claimant(s): Mary Jane Campigotto
Country: Mexico
RPD Number: VC1-02663
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000044-000050

REASONS FOR DECISION

INTRODUCTION

[1]     This is the decision of the Refugee Protection Division (“RPD”) in the claim of XXXX XXXX XXXXA.K.A XXXX XXXX XXXX (the “claimant”) as a citizen of Mexico who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).1

[2]     The panel has applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE) to understand cases involving sexual orientation, gender identity and expression, and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms.2

DETERMINATION

[3]     The panel finds that the claimant is a Convention refugee, as she does have a well-founded fear of persecution related to a Convention ground in Mexico.

ALLEGATIONS

[4]     The following is a brief synopsis of the allegations that the claimant put forth in the Basis of Claim (BOC) form and narrative.3 The claimant submits that she will continue to face serious discriminations amounting to persecution for her gender identity in Mexico.

[5]     The claimant submits that she has identified as a woman since her childhood. Her family had done their best when it came at first to “treating” the claimant with hormones to later supporting her, for who she is. The claimant has campaigned since her youth to educate and promote acceptance among children and the community. She continued studying education to support her passion in anti­bullying and inclusivity. The claimant decided to leave Mexico after her father had passed away, losing both of her parents, who were here “pillars” of support helped her to decide to move to a country that would accept her and let her live a peaceful life.

ANALYSIS

Identity/Country of Reference Mexico

[6]     The panel is satisfied on a balance of probabilities, in the claimant’s identity and his citizenship, considering the certified copy of Mexico passport on file.4

Well-Founded Fear of Persecution

[7]     The claimant fears persecution due to her membership in a particular social group, due to her sexual orientation and gender identity. The duty of this panel is to find if there is sufficient credible or trustworthy evidence to determine that there is more than a mere possibility that this claimant would be persecuted if she returned to Mexico.

[8]     The claimant testified in a very genuine, straightforward, emotional, and unassuming manner. She was passionate about her educational activities, she provided photos and testimony about the events in question.5 She spoke about her challenges and violence directed towards due to her gender identity. She submitted support letters, attesting to her personal history and her socially non­conforming gender identity.

[9]     According the Repot on Human Rights Conditions of Transgender Women:

Despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their gender identity and expression. 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 transgender women.6

Negative attitudes towards the LGBT community remain very common in Mexico.165 Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.7

[10]   Transgender women lack adequate healthcare in Mexico, many hide their transgender status to avoid hostility or threats from medical practitioners. There almost no availability of medical care for gender transition.8 The lack of positive protections on the basis of gender identity, leave transgender women vulnerable to employment discrimination. Few transgender women are able to sufficiently support themselves and end up resorting to sex work to survive, which results in yet more violence.9 Given the significant infringements upon the basic human rights of transgender women, the panel finds that evidence before it, establishes a systemic and pervasive treatment of transgender women, amounts to persecution.

[11]   Given the claimant’s credibility as to her gender identity and the unequivocal country condition evidence of the treatment of individuals similar to the claimant, the panel finds the claimant would face more than a serious possibility of persecution if she were to return to Mexico.

State Protection

[12]   State protection would not be reasonably forthcoming in this particular case. The panel has reviewed the country condition evidence of the situation of those with diverse SOGIE in Mexico and does recognize the Federal and some state protections in place.

[13]   In response to the growing public profile of sexual and gender minorities:

Some Mexican communities have explicitly targeted transgender women by enacting morality laws that criminalize “cross-dressing.” Local transgender women reported a dramatic increase in police harassment following the law’s passage. Transgender women stopped by the police frequently faced extortion; “[t]he police used… the threat of arrest… to secure money or sexual favors from [transgender women]. The passage of morality laws like those in Tecate criminalizes transgender women and sanctions police harassment and private discrimination. The passage and retention of these laws reflect continued societal hostility towards transgender people.10

[14]   Persons seeking protection from harassment and violence are routinely re-victimized by police their claims downplayed. Regular harassment by police is also reported. LGBTIQ+ individuals are frequently beaten, mocked, and forced to pay bribes in order to escape custody and in the recent years, have also reported physical assaults against them.11

[15]   Despite the existence of these formal protections around sexual orientation, advocates maintain that these laws have not prevented discrimination and violence. LGBT individuals face many barriers in exercising their rights under the antidiscrimination statutes. LGBT individuals who experience discrimination may be afraid to disclose their sexual orientation or gender identity to a federal agency and may be concerned about potential retaliation by public officials. This concern is especially relevant since the law does not have a clear enforcement mechanism or any provision that protects against retaliation.12

[16]   Considering the lack of any positive respect for the rights of LGBTIQ+ persons, and numerous reports of mistreatment of those persons with diverse SOGIE by law enforcement in evidence, the panel finds there is clear and convincing evidence that claimant, or persons similarly situated to the claimant, are unable to obtain adequate state protection.

Internal Flight Alternative

[17]   The first prong of this assessment is to determine on a balance of probabilities if there is a serious possibility of persecution in the internal flight alternative (IFA) or no risk to life, cruel and unusual treatment or punishment or danger of torture in the IFA.

[18]   The situation for individuals with diverse SOGIE is prevalent throughout Mexico. Although there are support groups in the larger centers in particular Mexico City, they have little impact in assisting members from violence or harassment. Negative attitudes towards the LGBT community remain very common in Mexico. Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.13

[19]   Although Mexico City, has been making serious efforts in assisting transgender women, including in documentation and identity changes, Mexico City also leads Mexico in the number or missing and murdered transgender women in Mexico. Considering, the evidence before this panel, there is no place in Mexico where the claimant would not face a serious possibility of persecution.

CONCLUSION

[20]   For the foregoing reasons, the panel concludes that the claimant is a Convention refugee and therefore accepts her claim. As the claim is accepted pursuant to Section 96 of the Act, there is no need to assess the claim made under Section 97(1)(b).

(signed) J. Schmalzbauer

June 17, 2021

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.

2 Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), May 1, 2017.

3 Exhibit 2.

4 Exhibit 1.

5 Exhibit 4.

6 National Documentation Package, Mexico, 30 April 2021, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016.

7  National Documentation Package, Mexico, 30 April 2021, tab 6.3.

8  National Documentation Package, Mexico, 30 April 2021, tab 6.3.

9 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

10 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

11 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

12 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

13 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

Categories
All Countries Mexico

2019 RLLR 152

Citation: 2019 RLLR 152
Tribunal: Refugee Protection Division
Date of Decision: November 5, 2019
Panel: Bonita Small
Counsel for the Claimant(s): Michael Murray Aytenfisu
Country: Mexico
RPD Number: VB9-04275
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000169-000177

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division in the claim of XXXX XXXX (AKA XXXX) XXXX XXXX XXXX, a citizen of Mexico.

[2]       The claimant, who is a minor, claims refugee protection under s. 96 and 97(1)(a) and 97(1)b) Immigration and Refugee Protection Act (IRPA).1

[3]       The panel has appointed XXXX XXXX XXXX as designated representative of the claimant. In rendering its reasons, the panel has considered and applied the Chairperson’s Guideline 3 on Child Refugee Claimants: Procedural and Evidentiary Issues and the Chairperson’ Guideline 9 on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression

DETERMINATION

[4]       I find that the claimant is a Convention Refugee pursuant to section 96 of the IRPA.

ALLEGATIONS

[5]       The claimant is a XXXX XXXXyear-old transsexual male from a suburb of Mexico City in Mexico. His biological father is still in Mexico. His mother is now deceased, after being killed by the claimant’s mother’s partner at the time. The claimant now lives in Canada under the auspices of a guardian.

[6]       The claimant calls himself a transsexual male. When asked why, the claimant explained that his goal is to transition into a male. However, since he hasn’t had any surgeries yet to start that process, he calls himself transsexual as opposed to transgender. He does identify as a male and in that regard, now calls himself XXXX, as opposed to his birthname, XXXX. He stated for the most part, his friends in school refer to him as XXXX, as does his guardian, XXXX and his sister, with whom he lives.

[7]       The claimant testified that he started noticing that he didn’t want to be a woman when he was XXXX years old; he felt like “he was living his life inside a body where he didn’t belong.” He was confused because to be a female in Mexico was to act like a “princess” and to be “delicate like a woman”. However, he recalls that since he was four that he liked to play rough with everyone and that he didn’t like dressing the “way they wanted him to.”

[8]       These thoughts started becoming more important to him and at age XXXX XXXX he started asking people at school to call him by a different name. Several of his friend’s mothers thought he was weird and complained to his mother. The claimant remembers his mother crying and asking him why he was causing her so many problems. The claimant also remembers being told not to come to school because of who he was.

[9]       When asked about where he is in the process of transition, the claimant explained that he wears a “binder” to flatten his breasts, that his hair is cut short in the style of a man and that he wears male clothing. He wanted to start testosterone treatment and have breast surgery but the doctor he spoke about this told him he was too young.

[10]     When asked about what he fears if he goes back to Mexico, the claimant stated that he would have many problems. He would have to use the name he was given at birth, XXXX XXXX and the people in Mexico “wouldn’t accept him because they’re close-minded.”

[11]     He saw and heard of people who were transvestites that were either beaten or killed. He stated if he went back, he “couldn’t be himself” for fear of talking about what he wants to be and being killed.

ANALYSIS

Identity

[12]     I find that identity has been proven on the balance of probabilities by the proffering of a passport in the name of the claimant, XXXX XXXX XXXX XXXX XXXX, who wishes to be called XXXX. (see Exhibit #1)

Credibility

[13]     The determinative issue in this matter is whether or not the claimant has credibly demonstrated that he was born a female but is undergoing the process of transitioning to a male. On that issue, the panel has found there is more than enough evidence on the balance of probabilities to make that finding, based on the credible testimony of the claimant, corroborative statement documents and a document from the Gender Program stating that the claimant is on a waiting list. (Exhibit 5) The claimant stated that he went to see a doctor about having surgery which would help to transition him into a male, however he was told that he was too young. All of the above demonstrates the claimant’s clear intentions to transition despite being advised that it was not possible at this juncture due to his young age. As well, the panel has taken note that the claimant is on a waiting list to attend the Gender Program at the University of XXXX. It is reasonable to conclude, that by proceeding with such a project, that the claimant’s gender issues continue to dominate his life and further bolster his claim that he wishes to transition into a male.

[14]     The panel has noted that the Minister provided written submissions in this claim on the issue of credibility. Although it is not clear from reviewing the submissions and the documents, it would appear that the issue of credibility is based on the fact that the claimant originally applied to Canada for a student visa, which was rejected. A few months later, he arrived in Canada and applied for refugee protection. The panel has not been provided with the reasons for the rejection of the student visa application.

[15]     In arriving at a decision on credibility, the panel is unable to conclude that the minister’s submission negatively impacts the claimant’s credibility. The panel found the claimant to be credible in his testimony. He was consistent in his narrative and sincere in his beliefs. In particular, he described his past experiences identifying as a male, trying to express his gender identity as such and being met with a lack of support in his community; for example, having to miss school due to complaints made by his friends’ mothers regarding his request to be called a different name.

Nexus

[16]     I find that the claimant has satisfied the panel that he meets one of the five grounds set out in the Convention Refugee definition by meeting the criterion of being a member of a particular social group, more specifically as a transsexual male with intent to transition into a transgender man.

Well-Founded Fear

[17]     I find that the claimant has established that he has a well-founded fear of persecution.

[18]     Country conditions from the National Documentation Package demonstrate that Mexico is taking some positive steps with respect to public tolerance of lesbian, gay, bisexual, transgender or questioning (LBBTQ) individuals.2

[19]     However, according to a report by the transgender law centre in Cornell University Law School lesbian, gay, bisexual, and transgender (LGBT) clinic, it is noted that “it is important for adjudicators to be aware that sexual orientation and gender identity are distinct components of identity”.3

Gender identity describes “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body… and other expressions of gender, including dress, speech and mannerisms.” Sexual orientation, on the other hand, is “each person’s capacity for… sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” Transgender women are as diverse in their sexual orientations as non-transgender women. They may identify as straight, lesbian, bisexual, queer, or any other sexual orientation. When asylum decisions refer to transgender women as gay men with female sexual identities, it is important to be aware that this may be an inaccurate and therefore disrespectful way of describing the individual’s gender identity. This inaccuracy can have serious and harmful consequences as it may contribute to misunderstandings regarding the deadly dangerous country conditions for transgender women in Mexico, as described below.4

[20]     As well, the same report’s Executive Summary states that despite the legal changes for same-sex couples in recent years, 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. rans–women continue to face beatings, rape, police harassment, torture and murder in Mexico.5

[21]     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.

[22]     The claimant is still quite young. He encountered negative attitudes and even some discrimination while he was living in Mexico and while he was commencing his transition. Since coming to Canada he wears his hair very short, has changed his name, wears a “binder” to hide his female breasts and has inquired into having surgery to complete the transition. It is clear to the panel that the claimant is sincere in his desire to transition. I find that the country conditions demonstrate that the claimant would face a serious possibility of persecution if he were to return to Mexico and continue with the transition that he has begun. Notably, this is not a situation where the claimant would be specifically targeted by his family if he returned; in fact, he quite frankly stated that his family which includes his grandmother and even his father to a certain extent, have expressed support for the claimant’s gender transition.

[23]     I therefore find that the claimant would have a forward-facing serious possibility of persecution if he were to return to Mexico as a transgendered woman.

STATE PROTECTION

[24]     States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence that state protection is inadequate. I find that the claimant has done so in this case.

[25]     The report referred to earlier from the Cornell University Law School states the following as it pertains to protections in Mexico for Transgender people:

As described earlier, transgender women have limited formal legal protections in Mexico against discrimination and hate crimes. Only Mexico City has an antidiscrimination law that explicitly protects against gender identity discrimination. Other protections that exist exclusively in Mexico City include name changes, legal recognition of gender changes, and specialized healthcare for transgender people. Transgender women continue to experience pervasive discrimination in public and in their private lives. Even a representative of CONAPRED stated that “tolerance towards groups such as homosexuals is still ‘practically the same’ even after the State [Mexico] recognized their rights.” The 2013 U.S. State Department Human Rights Report on Mexico stated that “discrimination based on sexual orientation and gender identity was prevalent[.]” It also noted that “the government did not always investigate and punish those complicit in abuses.” Transgender women often do not report hate crimes or police abuse because the authorities rarely investigate these crimes. When the police do get involved, they frequently minimize the crime and mischaracterize it. For example, in violent murder cases the police usually determine that the cases are “crimes of passion” instead of hate crimes. Holding police and military abusers accountable is also difficult. The process for punishing the police and military is “extremely slow and inadequate.” Transgender women avoid reporting police abuse out of fear of police retaliation against them or their family members. Further, human rights commissions tend to be anti-LGBT and will often disregard complaints by transgender women. Transgender women cannot depend on inadequate and ineffective laws penalizing hate crimes to protect their rights.

[26]     The same report referred to above also references a case of a transgender woman fleeing persecution and torture. The report finds that the court’s decision to grant asylum to the transgender woman was explicit in acknowledging that laws recognizing same-sex marriage do little to protect a transgender woman from discrimination, harassment and violent attacks in daily life in Mexico.6

[27]     I find based on the objective evidence referred to above demonstrates inadequate protection to transgendered persons and therefore rebuts the presumption of state protection

Internal Flight Alternative (IFA)

[28]     For an IFA to be exist, the panel must be satisfied on a balance of probabilities that (1) the claimant would not face a serious possibility of persecution in that location and (2) that conditions in that location are such that it would be objectively reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.

[29]     Given the panel’s previous analysis of the objective evidence, which indicates that the problems faced by those in the claimant’s situation are widespread and tied to pervasive negative societal attitudes about the claimant’s particular social group, I find that the claimant would face a serious possibility of persecution throughout Mexico. Therefore, I find that an IFA does not exist for the claimant.

CONCLUSION

[30]     Based on these considerations I conclude that the claimant is a Convention refugee and I accept his claim.

(signed) “Bonita Small”

1  Immigration and Refugee Protection Act, S.C. 2001, c. 27.

2 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 2.1: Mexico. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019.

3 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 7.

4 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 7.

5 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 5.

6 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 7.

Categories
All Countries Mexico

2020 RLLR 165

Citation: 2020 RLLR 165
Tribunal: Refugee Protection Division
Date of Decision: September 17, 2020
Panel: Elise Escaravage
Counsel for the Claimant(s): Robert J Hughes
Country: Mexico
RPD Number: VB9-07141
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000191-000194

DECISION

[1]       MEMBER: These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX XXXX XXXXakaXXXX XXXX or the claimant, a citizen of Mexico who is claiming refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act the IRPA.

[2]       In rendering my reasons, I have considered and applied the Chairpersons Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution as well as the Chairperson’s Guideline 9 proceedings before the IRB involving SOGIE throughout the hearing and in my decision.

[3]       This claim was heard as part of the remote hearing pilot project via video conference on a secured platform called Microsoft Teams. Ali of the parties present, the claimant, the interpreter, counsel, and myself confirmed that we were alone in our respective location and that we could see and hear the parties clearly.

Allegations

[4]       The claimant detailed her allegations in her basis of claim form which can be summarized as follows. The claimant alleges fear of persecution at the hands of state authorities in Mexico on account of her membership in a particular social group as a transgender woman.

Decision

[5]       I find that the claimant is a Convention refugee pursuant to Section 96 of the IRPA as she has established facing a serious possibility of persecution on account of her gender identity as a transgender woman if she returns to Mexico.

ANALYSIS

Identity

[6]       I find that the claimant’s identity as a national of Mexico has been established by her testimony and the supporting documents provided. Notably a certified copy of her passport at Exhibit 1.

Credibility

[7]       I find the claimant to be a credible witness and therefore believe what she alleged in support of her claim. She testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me. She did not embellish or exaggerate her claim and was forthcoming when answering my questions even if it did not benefit her claim. She admitted for example that she had not been victim of persecution herself as a transgender woman so she could only speak to what she had learned on the media about the treatment of other transgender women in Mexico. Moreover, I find that the series of photographs she submitted along with support letters and a medical report from her doctor in Canada to corroborate her allegations.

Well-Founded Fear of Persecution

[8]       The claimant testified that she did not feel as a boy for as long as she can remember. At the age of XXXX she was sent away to Tampico, Tamaulipas to go to school. She believes that her parents sent her three hours away from home because they did not agree of her feminine ways and different behavior. To this day her family still refuses to acknowledge her gender, her mother continues to refer to her as him or he and uses her name as at birth XXXX. The claimant has suffered significant hardship throughout her life, including bullying, intimidation, sexual abuse as a child and discrimination in the workplace as an adult. She began her journey to transition at the end of 2018, she was working at the time as an XXXXat XXXX, external to XXXX in Monterrey, Nuevo León. When her boss received her doctor’s note explaining her leave of absence, he spread the news around the company about her gender transition. The claimant suffered severe repercussions, including bullying and intimidation by co-workers and her boss for transitioning to become her real self. Although the claimant started to use the pronouns, she/her only three months ago after starting hormonal treatments in Canada, she has always felt as a woman. The claimant fears to be humiliated, discriminated against, assaulted, or even killed if she return to Mexico as a transgender woman.

[9]       According to the objective evidence that counsel submitted at Exhibit 4, Mexico is said to be the deadliest country in the world after Brazil for transgender persons. Perpetrators of violence, torture, and murder of transgender persons in Mexico benefit from great impunity as most murders go unsolved and are unpunished. As corroborated in the Human Rights Watch report Item 2.3 of the NDP and the SOGIE compilation Item 6.1, the agents of persecution include state authorities and the judiciary system that uses vague legislations to incriminate transgender persons. Transgender women in particular are painted as-, by politicians and policymakers as paedophiles or as a danger to public order. In sum, the objective evidence overwhelmingly points to systemic persecution against transgender persons in Mexico, particularly transgender women which manifests itself in ail spears of society and is perpetrated with impunity by civilians, state authorities, political figures who incentivize hate against transgender persons and members of the judiciary system who manipulate the law to incriminate them. For these reasons I find that the claimant has established an objectively well-founded fear of persecution if she returns to Mexico.

State Protection

[10]     I find that it would be objectively unreasonable for the claimant to seek the protection of the State in this particular case. There is ample objective evidence painting to state authorities, politicians, and policymakers as well as judges and members of the judiciary system as being part of the agent of persecution who persecute, incriminate, torture, and kill transgender persons in Mexico. As such I find that there is clear and convincing evidence that the State is part of the agents of persecution along with civilians who benefit from great impunity. It would not be reasonably forthcoming for the claimant to seek state protection where the State is the agent of persecution. For this reason, I find that the presumption of adequate state protection has been rebutted.

Internal Flight Alternative or IFA

[11]     I have examined whether a viable IFA exists for the claimant. As mentioned above, I find that the State is part of the agents of persecution in this case. The State has effective control throughout the country and there have been accounts of judges using their legislation to incriminate transgender persons as indicated at Item 6.1 of the NDP. As the IFA test fails on the first prong of the test, I find that there is no viable IFA available to the claimant. Consequently, I find that the claimant faces a serious possibility of persecution throughout Mexico.

CONCLUSION

[12]     In light of the proceeding, I conclude that the claimant is a Convention refugee pursuant to Section 96 of the IRPA; accordingly, I accept her claim.

———- REASONS CONCLUDED ———-