Category: Mexico

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.

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 ———-

Citation: 2020 RLLR 153
Tribunal: Refugee Protection Division
Date of Decision: March 11, 2020
Panel: Roslyn Ahara
Counsel for the Claimant(s): Sheau Lih Vong
Country: Mexico
RPD Number: TB7-23117
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000095-000104

REASONS FOR DECISION

[1]       XXXX(a.k.a. XXXX) XXXX XXXX (the claimant), who is a citizen of Mexico, is seeking refugee protection, pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

ALLEGATIONS

[2]       The claimant’s allegations are set out fully in her amended Basis of Claim Form (BOC).² The claimant fears persecution from her family and society generally as a result of her sexual orientation and gender identity. The claimant alleges that she has been verbally, emotionally, and sexually abused by members of her family, and others, during her adolescence and adulthood, in both Mexico and United States (US). The claimant also alleges that she suffered discrimination and violence due to her sexual orientation and gender identity. She further fears harm at the hands of her older brother, who is a violent criminal.

DETERMINATION

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

ISSUES

Nexus

[4]       The claimant alleges that the persecution she faces is due to her membership in a particular social group in Mexico, namely transgender women. The panel accepts that gender identity is a particular social group and has, therefore, assessed this claim against section 96 of the IRPA.

Identity

[5]       The claimant’s identity as a citizen of Mexico is established, on a balance of probabilities, as per her passport.³

Credibility

[6]       In considering credibility, the panel is aware of the difficulties that may be faced by the claimant in establishing a claim, namely, the setting of the hearing room, and the stress inherent in responding to questions. The panel has also considered the contents of the medical report.

[7]       Most importantly the panel has considered and applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guidelines),⁴ and in this regard it has carefully examined the claimant’s oral testimony in line with the factors to be considered when applying this guideline. The panel examined the challenges faced by this particular claimant.

[8]       Although the claimant was not deemed to be a vulnerable person in the absence of medical evidence, the panel made accommodations. Counsel questioned the claimant, and the panel stressed to the claimant that whatever breaks were required, would be granted. In fact, this did occur when the claimant’s demeanour was such that two breaks were immediately suggested by the panel.

[9]       The panel considered the factors of mistrust or fear of repercussion by state and non-state actors. More importantly, the panel accepts that the claimant was reluctant to discuss her change in gender identity and therefore, this late information, is not called into question as per the panel’s analysis below.

[10]     The panel was also cognizant of the claimant’s XXXX health issues, adding to the marginalization factor. The claimant’s history of social isolation, mistreatment, and lack of social support and XXXX XXXX XXXX XXXX XXXX were considered in terms of the manner in which the claimant testified. The Clinical XXXX Health Assessment submitted was considered; in particular the XXXXof XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the significant impact on the claimant’s experience of emotional and physical violence as a result of her gender identity.⁵

[11]     Since submitting her initial BOC, the claimant has provided new documentation in which she indicates that she has begun identifying openly as a woman.⁶ She asked that the panel consider her name to be XXXX, and refer to her by the pronouns she and her. The details of why her initial BOC did not reflect this information are described in detail, but in essence, the claimant has had difficulty in expressing her true feelings to counsel until she met with her current counsel in preparation for her hearing. The panel has provided more specific detail in this regard, relating to the SOGIE Guidelines.

[12]     The claimant testified that she could not come forward in terms of her gender identity in the US, as she was undocumented and had no support. Even in Canada, according to the claimant, she had trust issues. As enunciated above, the panel accepted the fact that initially the claimant did not disclose her gender identity until the late disclosure with new counsel. She testified that she has considered herself a woman for the past twelve years and has changed her name on Facebook to XXXX.⁷

[13]     She further testified as to why she had re-availed, and as stated above, the panel accepts this as not being determinative of the claim, as there were serious family issues at this time.

[14]     She further testified with respect to her reluctance to divulge her female identity with most individuals. More importantly, she explained why she had not taken any steps to express her female identity in the US, due to her lack of documentation and her lack of family support at the time; her father now knows. She elaborated on this that even in Canada, there are trust issues, along with lack of support.

[15]     Although delay and re-availment were identified at the hearing along with other issues, in keeping with the SOGIE Guidelines, the panel does not find that these issues detract from the claimant’s credibility. In totality, the panel was satisfied that the claimant’s testimony was credible and that she has identified as a female for 12 years. The panel accepts that the claimant is a transgender woman and that she has a subjective fear of persecution in Mexico.

[16]     Moreover, her testimony was corroborated by copious amounts of corroborative evidence, including the late disclosures, anticipating a resumption. These late disclosures included:

• A letter from her friend, SS.
• A copy of her Facebook page in which her name is indicated as XXXX XXXX, not XXXX.
• A certificate from a XXXX Health Counsellor.⁸
• The claimant’s BOC has been amended to reflect her gender identity. This evidence was preceded by letters from former partners, photographs, a letter from 519, BOC amendments, a letter corroborating her relationship with XXXX in the U.S, a legal opinion to apply for asylum in the U.S., photographs, and a clinical report indicating that the claimant suffers from XXXX XXXX XXXX XXXX XXXX.⁹
• A letter from the Toronto Western Family Health Team dated XXXX XXXX XXXX 2020, indicating a referral to the Gender Identity Clinic.¹⁰

[17]     The panel acknowledges that much of the above disclosures were submitted on the day of the hearing, in fact, during lunch prior to the afternoon hearing. However, the panel had the opportunity to analyze the claimant’s testimony, in conjunction with further study of this new evidence, coupled with the objective evidence before rendering its decision.

[18]     The panel received a motion for recusal subsequent to the hearing,¹¹ which was refused. The panel notes that there was some confusion caused by the late disclosure, and by the panel having received materials at the last minute. However, as noted above, the panel has had the opportunity to consider all the disclosure carefully after the hearing in accordance with the SOGIE Guidelines. For these reasons, the panel finds that a reasonable, fully-informed person, thinking the matter through, would conclude that it is more likely than not that the decision­ maker in this case would act fairly in the circumstances.

Objective basis

[19]     Transgender women in Mexico still face pervasive persecution based on their identity gender identity and expression. It notes the following:

Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly women.

[…]

Transgender women continue to face beatings, rape, police harassment, torture and murder in Mexico.¹²

[20]     It is reasonable to conclude from a review of the country conditions that while there has been some improvement in terms of attitudes towards LGBTQ issues, there is still a long way to go, particularly for persons with the claimant’s profile.

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

[22]     Moreover, as the claimant testified, she is fearful of the police. This is also supported in the documentary evidence. In this regard, the panel has considered the personal circumstances of this claimant which includes her age and health status, along with her history which is well­ documented. The panel further accepts that in the particular circumstances of this claimant, it may be unreasonable for her to approach the state for protection, keeping in mind that the state protection must be adequate at the operational level.

[23]     Furthermore, issues such as employment, secure housing, access to medical treatment as well as treatment related to the transition process must be considered, along with mental health issues and equal access to social services:

Vulnerable communities, including transgender women, are often victims of drug cartel and gang violence. Transgender women fall victim to cartel kidnappings, extortions, and human trafficking. One transgender woman described how cartel members forced her into sex work in Merida. Another transgender woman was targeted for rape and robbery while traveling by bus. In another case, a transgender woman named Joahana in Cancun was tortured to death by drug traffickers who carved a letter “Z” for the Zeta cartel into her body. If a cartel targets a transgender woman, it is nearly impossible to escape the cartel’s power. An immigration attorney in the U.S. described in an interview how his transgender female client unknowingly dated a cartel member. After doing so, she could not escape persecution from the cartel.¹³

[24]     A recent Response to Information Request further notes that:

Amnesty International (AI) indicates that enforced disappearances, including those committed by state and non-state actors, are “widespread” …

[…]

The U.S. Country Reports 2016 indicates that the investigation, prosecution and sentencing for disappearance-related crimes “remained rare”… AI characterizes the investigation of disappearances as “flawed and unduly delayed,” with authorities failing to immediately search for victims… ¹⁴ [footnotes omitted]

[25]     The documentation indicates that antidiscrimination laws do not prohibit discrimination on the basis of gender identity. The lack of protection leaves transgender women especially vulnerable to employment discrimination. Transgender women, in Mexico often lack access to gender health care and are generally denied the ability to change their name and/or gender on ID documents to match their gender presentation. It is indicated that:

It should be noted that transgender people cannot simply “hide” who they are and thereby escape persecution by living in accordance with their birth-assigned gender role. Gender dysphoria is a serious condition, recognized by every major medical association, the only treatment for which is to live in accordance with the gender with which they identify, rather than the gender assigned at birth. Attempting to suppress one’s gender identity can have dire health consequences. Moreover, a person’s gender identity is a fundamental component of identity, which cannot be required to be changed or hidden as a condition of protection under asylum laws.

As noted, only Mexico City permits transgender people to legally change their name and gender to correspond to their gender identity. Even where such mechanisms are technically available, however, legal name changes are not accessible in practice for many transgender women. This is in part due to “lengthy delays and high costs-at least six months and approximately 70,000 pesos… are required, and completion sometimes depend[s] on the ‘good will’ of some civil servants.”…

[…]

Transgender women lack adequate health care in Mexico. Many transgender women resist seeking medical help because they must disclose their transgender status and subsequently face hostility and threats of violence from medical providers. Medical care providers often do not want to provide medical attention to transgender patients. Providers have mocked and humiliated transgender patients using offensive language, threats, aggression, and hostility. Consequently, transgender women do not routinely access preventive or emergency care.

In particular, medical care to support gender transition-such as hormones or surgeries-is almost entirely unavailable to most transgender women in Mexico. While medical authorities uniformly recognize the medical necessity of transition related treatment, such care is not covered under Mexico’s national health plan and licensed providers (for those who can afford to pay out of pocket) are scarce. Even where it is available, such care can be prohibitively expensive for transgender women already suffering the effects of economic marginalization discussed earlier. Without access to gender-affirming medical care, many transgender women permanently damage their skin and muscles by injecting dangerous black-market feminizing liquid silicone or other fillers.¹⁵

[26]     Further documentation notes that:

The May 2016 report of the Cornell Law School LGBT Clinic and the Transgender Law Center also specifies that there are “no federal laws that explicitly protect transgender individuals from discrimination on the basis of their gender identity (i.e., their transgender status) as opposed to sexual orientation”…

[…]

In a short overview of, among others, hate crime legislation in different countries, the same report indicates, however, that in Mexico there is no such legislation. The report, in contradiction to the above cited explanation, states that the federal law neither criminalises hate speech nor hate crimes. The report in this context mentions article 149 Ter of the Federal Criminal Code of Mexico which refers to discrimination…

[…]

In its query response about the situation and treatment of sexual minorities, particularly in Mexico City, Cancun, Guadalajara, and Acapulco of August 2015, the Immigration and Refugee Board of Canada (IRB) writes:

“A report on crimes against transgendered women sent to the Research Directorate by a representative at the Support Centre for Transgender Identities… , an NGO that advocates for the rights of transgendered women in Mexico… , indicates that transgendered women are discriminated against by the police and judicial authorities … The representative from Colectivo León Gay, A.C. indicated that LGBT persons are [translation] ‘frequently’ harassed and arbitrarily detained due to their physical appearance, the way they dress, or for expressing affection in public… The representative also indicated that they are barred from assembling in public because they are seen as ‘engaging in prostitution or giving a ‘bad example’ or ‘bad image’ to society’ … ¹⁶ [footnotes omitted]

[27]     In light of the cited documentary evidence regarding similarly situated persons in Mexico who did not receive adequate state protection, there is sufficient evidence before this panel to conclude that, despite efforts made by the state, at this time, the state is not able to offer adequate protection to transgender individuals like the claimant. Accordingly, the panel finds that there exists clear and convincing proof that state protection is not available to transgender individuals like the claimant in Mexico. The panel, therefore, finds that the claimant has rebutted the presumption of state protection and has established that her fear is objectively well-founded since the harm she fears cumulatively amounts to persecution.

[28]     With respect to an internal flight alternative (IFA), it is clear from the documentary evidence that societal prejudices against transgender persons are found all over Mexico, including Mexico City. There is blatant disregard for the safety as well as the wellbeing of transgender individuals like the claimant. Homicides and assaults against these groups continue under a backdrop of religious and cultural tolerance and moral condemnation. Based on the evidence adduced, the panel finds that there is no viable IFA for transsexual/transgender persons in Mexico City, or for that matter any part of Mexico.

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

CONCLUSION

[30]     Accordingly, the panel accepts the claimant as a Convention refugee.

(signed) Roslyn Ahara

March 11, 2020          

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

² Exhibit 2, Basis of Claim Form (BOC).

³ Exhibit 1, Package of Information from the Referring CBSA/CIC, Certified True Copy of Passport.

⁴ Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(l)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.

⁵ Exhibit 4, Personal Disclosure #1, at pp. 28-34.

⁶ Ibid., BOC Addendum.

⁷ Exhibit 6, Personal Disclosure #3, at pp. 3-5.

⁸ Ibid., at pp. 1-6.

⁹ Exhibit 4, Personal Disclosure #1.

¹⁰ Exhibit 8, Personal Disclosure #4, at p. 1.

¹¹ Exhibit 7, Recusal Application.

¹² Exhibit 3, National Documentation Package (NDP) for Mexico (August 30, 2019), item 6.3.

¹³ Ibid.

¹⁴ Ibid., item 7.18.

¹⁵ Ibid., item 6.3.

¹⁶ Ibid., item 6.1.

Citation: 2020 RLLR 151
Tribunal: Refugee Protection Division
Date of Decision: February 5, 2020
Panel: Krystle Alarcon
Counsel for the Claimant(s): (no information available)
Country: Mexico
RPD Number: MB9-12276
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000083-000089

[1]       This is deci… the decision for XXXX XXXX XXXX. I would like to note that the claimant’s identity documents indicate that she is male and the name on the passport submitted as evidence is “XXXX XXXX XXXX”. The claimant is now transitioning to a woman and therefore identifies as a woman and would now like to be addressed as XXXX, though she has not gone through any formal name changes yet. The claimant’s file number is MB9-12276. At the hearing, and in rendering this decision, I have considered and applied both the Chairperson’s guidelines four, women refugee claimants fearing gender-related persecution, and Chairperson’s guidelines nine, proceedings before the IRB involving sexual orientation and gender identity and expression. I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally. I would like to add that when written reasons are issued, they may be edited for spelling, syntax, and grammar. You are a citizen of Mexico and you are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

DETERMINATION

[2]       I find that you are a “Convention refugee” based on your gender as a transgender woman.

ALLEGATIONS

[3]       You allege the following. In your… In your original Basis of Claim form, or your… or your BOC, you stated that you fear serious harm or death at the hands of cartels, because at least three of your family members have been kidnapped for ransom in Mexico, as you hail from a well-to-do family. In your amended Basis of Claim form, you stated that you have now come out as a woman and that you fear returning to Mexico with your new identity as a woman, because of the horrible discrimination that the LGBTQ+ people face.

ANALYSIS

IDENTITY

[4]       Your personal identity and nationality as a citizen of Mexico has been established on a balance of probabilities by a certified true copy of your valid Mexican passport.

CREDIBILITY

[5]       I find you to be generally credible Madam. You testified in a straightforward, open and detailed manner. For example, you described how since you were eight years old you felt like you were in the wrong body. That you enjoyed playing with dolls and other girls, and at first you thought you were gay, but then you realized that you were jealous of other girls because you wanted to be born a girl. You provided a compelling testimony about how you came out to your mother recently, and she didn’t accept that you wanted to transition. You said that she called you repetitively since then, and talked to you for hours trying to change your mind. You said that she told you that no matter what, you would always be her son. I also note that you asked me not to tell your father about your transition as he initially was supposed to testify as a witness regarding the targeting of your relatives by cartels in Mexico. You said that you haven’t spoken to him yet about your transition and you fear his reaction if he finds out today about it. You also went into significant detail about how it hurts you when people address you as “Sir” or “Monsieur”. You gave the example about how earlier today you approached a stranger for help with something, and this person referred to you immediately as “Sir”. You testify that you accept that no matter what you will never be fully accepted by society, excuse me, society, even if you don’t wear makeup or dress like a woman. You also went into detail about how you sought support from an organisation in Montreal called Action Santé Transves … Transvestite and Transsexuel du Québec, who have whole heartedly encouraged you to go through hormone therapy and to come to terms with your gender identity. I would also like to note that indeed, today, in front of me, you are dressed as a woman, in a squirt, and you are wearing makeup.

[6]       There were no significant inconsistencies, omissions or incompatible behaviours that were not reasonably explained. Of course, I would like to address why you omitted from your first Basis of Claim form that you identify as a woman. Your initial Basis of Claim form was signed on XXXX XXXX XXXX 2019, and you testified that you have only started hormone therapy in XXXX 2019, which is corroborated by your doctor’s note labelled P-2. You said that you were initially even afraid of talking about your transition to your lawyer, worried that she might not want to retain you and represent you as a transgender woman. Given that indeed you submitted an amendment signed on XXXX XXXX XXXX 2019, which is shortly after you started the medical transition, we do not draw a negative inference in regards… I do not draw a negative inference in regards to your credibility for this omission, as it is reasonable that you only included it in your narrative after you actually started the treatment.

[7]       I also asked you about your failure to claim refuge in the U.S.A. Given that you knew at a young age that you wanted to become a woman and that Mexicans are hostile towards transgender women, you said that you only transitioned recently, so your fear of Mexican society at large has become real and apparent only now. You said that you started your transition in XXXX 2019, as noted earlier, and given that indeed you only commenced XXXX recently, and given that you had a valid Visitor Visa until XXXX 2022 according to your U.S. Visa in your expired Mexican passport, labelled document seven, I find your explanation reasonable and I do not find your failure to apply for asylum in the U.S.A. to be incompatible behaviour with someone fleeing persecution.

[8]       In support of your claim, you provided the following documents. A letter from the non­ profit that you approach to support you, labelled P-2. A letter from your doctor regarding your hormone therapy, which was noted earlier, labelled P-3. And, documents from your pharmacist regarding the drugs you are taking, labelled P-4. I therefore find the following to be credible. You sought the help of a non-profit that supports transgender people in XXXX 2019. You started hormone treatment in XXXX 2019, and that you identify as a woman and you want to be called XXXX from now on and addressed with the pronouns associated with women, such as “she” and “her”

NEXUS

[9]       I find that there is a nexus with your fear and one of the five Convention grounds, which is gender. Therefore, your claim is assessed under Section 96 of the Immigration and Refugee Protection Act.

PERSECUTION

[10]     The objective documentation supports your allegations that individuals in your circumstance face persecution or death in Mexico. According to the Transgender Law Center of Cornell Law School LGBT Clinic, in tab 6.3 of the National Documentation Package, transgender women regularly experience harassment and hate crimes at the hands of members of the public. The following are only a few examples of the many atrocities that transgender women have experienced in Mexico. A prosecutor in Chihuahua belittled a transgender woman who sought redress for abuse and violence she experienced, asking her “So, why are you not… So, why are you walking in the streets?” In November 2011, in Chihuahua, a group of men kidnapped two transgender women in Hotel Carmen. Days later, the dismembered bodies of these women were found in a van. In June 2012 in Mexico City, the body of a transgender woman was dismembered. Her remains were found abandoned in different neighbourhoods in the Bonito Juares District. In June 2013, a police found the body of a transgender woman who headed a special unit for attention to members of the lesbian, gay, bisexual, transsexual, transgender, transsexual, and intersex community of the Attorney General of the Federal District. In July 2013, two attackers released pepper spray into a crowd of 500 at a beauty contest for transgender women.

[11]       Mexico has the second highest index of crimes motivated by transphobia behind Brazil. Reports of hate crimes, particularly transpho … transphobic murders, continue to rise including in Mexico City. Most hate crimes against the LGBT community go uninvestigated. In many instances, police dismiss investigations of homophobic and transphobic murders by cate… categorizing them as “crimes of passion”. Indeed, it is estimated that almost 90% ofc rimes in Mexico go unreported. It follows then, that the actual number of transphobic murders in Mexico are likely much higher. Research conducted by the Immigration and Refugee Board of Canada in 2019, at tab 6.2, reiterates this, that transgender individuals are regularly victims of violent hate crimes that often end in murder. It cites research that indicates the 66% of transgender women, 41% of transgender men, and 41% of intersex people who responded to the survey on LGBTQ+ discrimination regarding the rights to safety and to justice declare they were victims of physical assault. A Trans-respect Versus Transphobia Worldwide Project reported that in 2008 four transgender people were murdered in Mexico, while in 2017 the number was 65.

[12]     Tab 6.3 also states that transgender people have limited access to healthcare. A representative of Fundación Trans Amor stated that there are very few cases in which a transgender person who has been denied healthcare has managed to carry out the applicable protocols such as successfully requesting a consultation with an Endocrinologist, a laboratory analysis, or obtaining a hormonal assessment, without proprieting … without providing further details. Sources reported cases of transgender and non-binary people having to stop hormonal treatment against their will or being denied access to gender confirmation medical treatment. The same document also states that transgender people also face a lot of discrimination in the workplace in Mexico. According to the Alliance for Diversity and Inclusion in the Workplace, transgender and non-binary people are less on average than lesbians, gay men, and bisexuals. According to another non-profit, 25% of transgender women respondents engage in sex work. The same source states… The same so… The same source, being the Executive Commission for Care of Victim… of Victims, states that almost all respondents who engaged in sex work were transgender, noting that this may be related to the lack of other employment options by the lack of acceptance. Given all these conditions, the cases of violence and murder of transgender women, the lack of access to medical care, and the lack of employment opportunities that leads transgender women to sex work, I find that the claimant established a subjective fear that is objectively well-founded.

STATE PROTECTION

[13]       I find that adequate State protection would not be available to you were you to seek it in Mexico. The objective documentary evidence in tab 6.4 indicates that police are sometimes complicit themselves in the violence that transgender people and sexual minorities face. The U.N. Special Rapporteur on extraju … extrajudicial or arbitrary executions noted that there is an alarming pattern of grotesque homicide of lesbian, gay, bisexual, and transgender individuals, and the broad impunity for these crimes, sometimes with the suspected complicity of investigative authorities. The Executive Commission of Attention to Victims and the Fundación Arcoiris report found that transwomen and homosexuals represent the group most affected by motivated physical assaults.

[14]       Furthermore, according to the U.S. Country Reports 2016, civil society groups claim police routinely subjected LGBTQ+ people to mistreatment while in custody. Even in Mexico City, where the Zona Rosa gay district is located, police harassment against LGBTQ+ members remains high. In 2016, a Federal Agency that supports those who have been victim of a federal crime or whose human rights have been violated, reported some forms of abuse by authorities, including delays in or refusal to provide services, violence and insults. In light of the objective documentary evidence, I find that you have rebutted the presumption of State protection, and that adequate State protection would not be available to you in Mexico.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[15]       Considering your profile as a trans… as a transgender woman, the documentary evidence of uninvestigated murders of transgender women in Mexico, the rampant discrimination and violence that transgender women face, and the lack of State protection and the complicity of State officials in the violence transgender women go through, I find that it is unsafe for you to lo… to relocate anywhere in Mexico. I therefore find that there is no viable internal flight alternative for you anywhere in Mexico.

CONCLUSION

[16]       Based on the totality of the evidence, I find that the claimant is a “Convention refugee”. Your claim XXXX XXXX XXXX is therefore accepted.

Citation: 2020 RLLR 129
Tribunal: Refugee Protection Division
Date of Decision: October 30, 2020
Panel: Lesley Mason
Counsel for the Claimant(s): Pablo Andres Irribarra Valdes
Country: Mexico
RPD Number: TB9-04265
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000084-000087

DECISION

On October 30, 2020 the Refugee Protection Division (RPD) heard the claim of [XXX] and [XXX], who claim refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral positive decision and Reasons for decision. This is the written version of the oral decision and Reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate.

[1]       MEMBER: [XXX] and [XXX], I have considered your testimonies and the other evidence in your case, and I am ready to now give you my decision orally. You will receive a written copy of this decision, but it will be edited for any spelling, syntax and grammar before it is sent out to you.

[2]       This is the decision of the claims of [XXX] and [XXX], who claim to be citizens of Mexico, and who seek refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.^[1]

[3]       The allegations that you make are fully set out in each of your basis of claim forms and amendments.^[2] In summary, you each fear persecution in Mexico because you are gay men. You suffered physical, verbal, sexual abuse and discrimination. You allege that there is no location in Mexico where you could relocate and live safely.

[4]       Your claims were joined as per Rule 55 of the Refugee Protection Division. Chairperson’s Guideline 9 was followed throughout this hearing.^[3]

[5]       The issues in your hearing were credibility, delay in claim, and internal flight alternative.

[6]       Regarding your identities, I find on a balance of probabilities that you are who you say you are, and that you are citizens of Mexico. I base this finding on the passports you provided Canadian authorities,^[4] and the voter identity cards you submitted as evidence.

[7]       With regards to your credibility, your testimonies as to the circumstances of the problems you experienced in Mexico as a result of your sexual orientation were straightforward and spontaneous. Neither of you made any apparent attempts to embellish your claims.

[8]       However, there were some obvious inconsistencies in the evidence provided by each of you between your narratives and your oral testimony this morning. I do have concerns about the omissions in your testimonies regarding dealings with the police and discrimination at work.

[9]       Nevertheless, the information each of you provided in your testimonies is consistent with information you have given in your basis of claim forms. Some of these allegations are confirmed by the multitude of original documentation that you have provided to me.

[10]     The personal documents include reference letters from friends and family, medical records, employment records, correspondence regarding human rights complaints in Mexico and in Canada, as well as photographs of various events that you have attended here in Toronto.

[11]     Your personal documentary evidence is overwhelming, and I give it significant evidentiary weight.

[12]     Regarding your delay in making claims for protection, you explained that it took a considerable time to gather useful information that finally led you to make claims for protection.

[13]     I accept this explanation for the delay, and I make no adverse credibility findings against you.

[14]     I therefore have considered the objective evidence in your case. Having considered the country condition documents, I find that the situation for you in Mexico is dangerous. Conservative attitudes prevail in Mexico. Public displays of affection are not considered socially acceptable.

[15]     I rely specifically on three documents; 6.1, 6.2 and 6.4 in the national documentary package.^[5] I also will mention that the United States Department of State report for 2020 indicates, and I quote, “Discrimination based on sexual orientation and gender identity was prevalent, despite a gradual increase in public tolerance of LGBTI individuals.”

[16]     In 2016, Letra S, L-E-T-R-A and then “S,” which is an LGBTQ non-governmental organization, published information according to which 1,310 cases of killings of LGBT persons motivated by homophobia were committed in Mexico between 1995 and 2016. Over the past 10 years, there have been 71 homicides a year on average.

[17]     A report from the UN noted the alarming pattern of grotesque homicides of lesbian, gay, bisexual and transgender individuals, and the broad impunity for these crimes, sometimes with the suspected complicity of investigative authorities.

[18]     According to one report, trans women and homosexuals represent the group most affected by motivated physical assaults. There is considerable evidence about the number of people who belong to the LGBT community that have been killed over these last many years.

[19]     Mexico City, where you’ve indicated that you lived for a short period of time, is regarded by some to be the safest place in Mexico to members of the LGBTQ community. The response to information request at 6.4 indicates that violence against LBGTQ (sic) persons in Mexico City is virtually unheard of. However, civil society groups claim that police routinely subjected LGBTI persons to mistreatment while in custody, and this information can also be found in the Department of State report.

[20]     Your counsel has also provided considerable evidence with regards to the treatment of homosexuals in Mexico.

[21]     I therefore find that there is a strong objective basis for the fear you have of being persecuted in Mexico. find that you have subjective fear of persecution, violence, and death in Mexico on the basis of your sexual orientation, and the objective evidence supports that subjective fear.

[22]     I proposed Guadalajara as an internal flight alternative city in which you could potentially live openly as gay men. The response to information request I have mentioned earlier indicates that the members of the LGBT community in Guadalajara report feeling safe.

[23]     However, you have made it clear that you do not feel safe anywhere in Mexico, and this is in part due to the discrimination against sexual minorities that is pervasive throughout the country.

[24]     I note that the response to information request I’ve referred to provides information about the role of the Catholic church in exacerbating homophobia and transphobia in Mexico. It is the influence of the church that has stubbornly impeded the efforts of the government in Mexico to protect and guarantee equality and protection for the LGBTQ community. While the response lists Guadalajara from one source as being a safe place for sexual minorities, I find there is more overwhelming evidence that gay men are frequently targeted everywhere in Mexico by state and civilian actors alike.

[25]     I also note that you testified that you would be discriminated against by the medical community when dealing with your HIV status, as you’ve experienced in the past.

[26]     Relying on the documentary evidence I’ve referred to, I find that there is no viable internal flight alternative in Mexico that is both safe and reasonable for you in all circumstances. The serious possibility of persecution that you face is endemic throughout Mexico, and I therefore find that there is no place in the country that you could live openly as gay men and be safe.

[27]     I have considered your testimonies, your documentary evidence, and the country conditions, and I find that there is a serious possibility of persecution on a convention ground, if you were to return to Mexico.

[28]     I therefore find that you, [XXX] and you, [XXX], are convention refugees, and I accept your claims. I wish you well.

———- REASONS CONCLUDED ———-

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

^[2] Exhibits 2.1, 2.1, and 13.

^[3] Chairperson’s Guideline 9: Proceedings Before the IRE 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] Exhibit 1, Package of information from the referring CBSA/IRCC.

^[5] Exhibit 3, National Document Package (NDP) for Mexico – September 30, 2020 Version.

Citation: 2019 RLLR 142
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: D. D’Intino 
Counsel for the Claimant(s): Gabriella B Uteras Sandoval
Country: Mexico
RPD Number: TB9-00090
ATIP Number: A-2021-00256
ATIP Pages: 0000133-000139

DECISION

[1]       MEMBER: Alright so just let me get started here. Okay so this is my decision with respect to the claim of [XXX] File number TB9-00090. I just want to alert you sir that you are going to get a written copy of these reasons and as will your counsel and there may be some changes with respect to grammar, syntax and additional references to documentary evidence.

[2]       The claimant is a citizen of Mexico and claims refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I have considered the chair person’s Guideline 9 in this claim which relates to sexual orientation, gender identity and expression. I am required to consider these guidelines and I find them helpful.

[4]       I have considered your testimony sir and the country documentation for Mexico and the documentation you have provided and this is my decision.

DETERMINATION:

[5]       I find that the claimant is a Convention refugee on the grounds of membership in particular social group gay men. As I have made a positive determination on this ground I need not go on to analyze your claim under Section 97.

ALLEGATIONS:

[6]       Your allegations are fully set out in your basis of claim form which is Exhibit 2, in summary you have testified that you fear persecution in Mexico because of your sexual orientation and as well your HIV positive status.

[7]       You further allege that there is no adequate state protection for you in Mexico nor is there an internal flight alternative that is both safe and reasonable for you because the persecution you fear exists throughout all OF Mexico.

IDENTITY:

[8]       Your personal identity as a citizen of Mexico is established on a balance of probabilities by your testimony and by your Mexican passport which is Exhibit 1.

NEXUS:

[9]       The claimant has a number of potential nexus’s to the convention, for example as I mentioned as a gay man or as a gay man who has HIV positive status. I will accept you claim simply on the basis of your sexual orientation.

[10]     Under Section 96 the test is whether there is a serious possibility of persecution on this ground should you return to Mexico and I find that you have met this test.

CREDIBILITY:

[11]     You affirm to tell the truth in your testimony today; you confirmed that you likewise affirmed to tell the truth when you completed your basis of claim form. When a witness swears or affirms to tell the truth this creates a presumption of truthfulness unless there is evidence to the contrary.

[12]     I find that you were a credible witness. Your evidence was consistent, logical, clear and supported by highly probative documentary evidence. The evidence you gave me today and what you wrote in your narrative can be very briefly summarized as follows.

[13]     You were born and raised in Agua Linda Puebla Mexico. That growing up you were verbally assaulted and discriminated against because of choice of dress or the way you spoke which other people determined to be feminine.

[14]     You realized that you were gay from a young age and had your first relationship with a same sex partner around the age of twelve. When you moved away from home and got a job with [XXX] you were told by your boss that he did not want you to be hired because he did not want gay people working there.

[15]     On a number of occasions you were physically and verbally assaulted because of your sexual orientation. You told me about one robbery in particular where your wallet and your phone were taken and the thieves told you they had been following you and your partner and the demanded your pin, they indicated that they knew where you lived and where you worked and that they were watching you.

[16]     You came to Canada in [XXX] 2018 and subsequently claimed refugee protection. When you told your parents about your sexual orientation they had a difficult time accepting it and have still not fully accepted it as they hold out hope that you will one day have a family with a woman.

[17]     While in Canada you were diagnosed with HIV. You are currently in receipt of medical treatment and counselling. You do not believe you can return to Mexico and live openly and safely anywhere in the country as a gay man who is HIV positive.

[18]     You fear that you will not have access to your medication without which it would lead to the development of the AIDS virus and place your very life at risk.

[19]     So that is a very condensed version of your testimony and your narrative.

OBJECTIVE DOCUMENTARY EVIDENCE:

[20]     Conservative attitudes prevail in Mexico and public displays of affection between same sex partners are not considered socially acceptable and that is reflected in Item 6.2 of the NDP and Item 6.1.

[21]     Furthermore in Item 6.1 and I quote from the US Department of State report for 2017 “discrimination based on sexual orientation and gender identity was prevalent despite a gradual increase in public tolerance of LGBTQ individuals according to public opinion surveys”.

[22]     In one report information was published according to which one thousand three hundred and ten cases of killings of LGBTQ person’s motivated by homophobia were committed in Mexico between 1995 and April 30^th 2016. Forty four of those killings occurred in 2015 and fifteen in the first portion of 2016.

[23]     In the last ten years in Mexico there has been an average of seventy one homicides a year of LGBTQ persons. The UN special repertoire on extra judicial or arbitrary executions noted “an alarming pattern of grotesque homicides of LGBTQ individuals and broad impunity for these crimes sometimes with a suspected complicity of investigative authorities”.

[24]     For example between January 2014 and December 2016 two hundred and two persons, sexual minorities were killed as a result of their sexual orientation or gender identity including a hundred and eight trans women, ninety three gay men and one lesbian woman.

[25]     The highest number of victims seventy six was recorded in 2016. Of the total two hundred and two victims thirty three of them showed signs of torture while fifteen showed signs of sexual violence. That is from Item 6.4 of the NDP.

[26]     From Items 6.2 I take the following two examples. On the 6^th of May 2019 a group of six armed men attacked and robbed a shelter where eleven LGBTQ asylum seekers were staying setting the door of the shelter on fire.

[27]     The shelter’s legal representative informed Amnesty International that the men returned a few hours later shouting homophobic slurs and threatened to kill them if they did not leave the neighborhood.

[28]     According to the 2018 national study on discrimination against sexual and gender minorities in Mexico 41.8 percent of the respondents indicated that they did not believe that adequate public healthcare services were available for sexual minorities and 31.1 percent don’t even know if those services exist. The absence of adequate health services for sexual minorities is a noted problem in Mexico.

[29]     Furthermore in February 2019 the Federal Government noted, announced that it would no longer fund civil society organizations for activities such as outreach or HIV testing. Mexico city has the highest number of documented HIV cases in all of Mexico, despite these high infection rates medical treatment for HIV and AIDS is largely unavailable in less urban areas due to cost.

[30]     Even in areas that have free anti retro viral drugs they are usually reserved only for the sickest people. Many in Mexican society hold misconceptions about the LGBT community and HIV that further contribute to the widespread stigma associated with both HIV and LGBTQ persons.

[31]     A national survey of Mexicans found that fifty nine percent believe that HIV/AIDS is caused by homosexuality. These misconceptions and stigmas exist even among medical providers in Mexico. In fact most hospitals view homosexuality as a risk factor for HIV and often discriminate against those who seek treatment.

[32]     The Commission on Human Rights in Mexico City also reported that HIV and AIDS clinics often actively mistreat and discriminate against LGBTQ persons living with HIV or AIDS. That is from Item 6.3 of the NDP.

[33]     Claimant’s Exhibit 5 contains letters from family and friends as well as medical documentation which confirm all of the core allegations underpinning the claimant’s claim, including his sexual orientation and HIV positive status.

[34]     Relying on those items I find that there is a strong objective basis for the fear you have of being persecuted in Mexico. I also found that you subjectively fear persecution, outright violence or death in Mexico on the basis of your sexual orientation and your HIV status. Therefore I find that your fear is well founded.

STATE PROTECTION:

[35]     States are presumed to be capable of protecting their citizens but this presumption is rebuttable with clear and convincing evidence.  The NDP for Mexico quoting a number of nongovernmental organizations indicate that there are high levels of distrust in the authorities and that rights for gay people are still treated as exceptions to be granted at the discretion of local officials.

[36]     According to the US country reports for 2016, civil society groups claimed police routinely subjected LGBTQ persons to mistreatment while in custody.

[37]     According to several sources the judicial system is not effective in investigating crimes committed against sexual minorities.

[38]     Furthermore there is evidence that state actors have been and continue to be involved in forced disappearances and extra judicial killings adding to the reasons why LGBTQ persons would fear approaching the state for protection and the reference for that, references Item 2.1of the NDP at Page 4.

[39]     Another example from the NDP on August 5th of 2017 an eighteen year old man was beaten to death by a group of ten taxi drivers who worked at a taxi stand outside a gay bar in San Luis Potosi. Local human rights defenders claim the killing was a hate crime because the victim was attacked due to his sexual orientation.

[40]     The President of the San Luis Potosi state commission for human rights agreed with that. Advocates also argued negligence in investigating the case due to homophobia in the police. As of October 2017 no one had been arrested in connection with the killing. That is from Item 2.1.

[41]     From Item 6.1 according to an organization called Collectivo Leange(ph). Officials from the public ministry often mistreat LGBTQ persons and refuse to open investigations for crimes against them.

[42]     Furthermore despite the training provided to judicial authorities on sexual diversity there is still a lot of intimidation and threats against the LGBTQ population due to what they perceive as faults against morals which are then used to extort members of the LGBTQ community.

[43]     This is but a small sample of the documentation in the NDP and in the claimant’s country conditions documentation which support my conclusion that Mexico is unable or unwilling to provide protection to individuals like this claimant.

[44]     I found all, sorry I found the claimant to be credible. I find that the objective evidence supports the claimant’s evidence and that it demonstrates on a balance of probabilities adequate state protection for you in Mexico would not be reasonably forthcoming.

INTERNAL FLIGHT ALTERANTIVE:

[45]     I purpose Mexico City as an internal flight alternative outside of Puebla that I believed would be safe and reasonable in the claimant’s circumstances. For the following reasons I find that the claimant would face a serious possibility of persecution on the grounds of his sexual orientation in Mexico City and therefore the internal flight alternative location fails the first prong of the analysis.

[46]     The first prong of the analysis asks whether there is a serious possibility of persecution or a Section 97 risk on a balance of probabilities in Mexico City.

[47]     Item 6.4 of the NDP which is a response to information request on Mexico City depicts Mexico City as the most progressive area in Mexico concerning LGBTQ rights. For example there was a first district in Mexico to allow legal same sex marriage and to allow a person to change their gender identity.

[48]     One source that is quoted in this item talks about gay friendly zones or zones where the LGBTQ community feel safe from being abused. However they note that there are police officers that look for anyway to intimidate or extort same sex couples wherever they are.

[49]     The UN special repertoire on extra judicial or arbitrary executions notes that there remains broad impunity for crimes against the LGBTQ community.

[50]     According to a report by the transgender law society and Cornell University Law School, LGBTQ clinic, police harassment against the LGBTQ community remains high in Mexico City.

[51]     A 2016 report indicates that out of four hundred and twenty five person’s interviewed, one hundred and thirty nine reported some form of abuse by authorities including delays in or refusal to provide services, violence and insults. That comes from Item 6.4.

[52]     Claimant’s Exhibit 5 at Tab 22 contains articles which describe a shortage of HIV/AIDS drugs which has not yet been resolved in Mexico placing the lives of thousands of people at risk.

[53]     Again these are but a few examples of the violence and persecution that gay people face on a daily basis and Mexico City does not appear to be as safe as it is socially liberal for the LGBTQ community.

[54]     Ultimately I find that the preponderance of evidence weighs in favor of finding that the claimant would face a serious possibility of persecution on a convention ground in Mexico City and throughout Mexico. Therefore I find that Mexico City is not a viable internal flight alternative for the claimant.

CONCLUSION:

[55]     I have considered your testimony, the documentary evidence and the country conditions documentation and I find that there is a serious possibility of persecution by Mexican society generally on the basis of your sexual orientation and your HIV positive status should you return to Mexico.

[56]     I therefore find you to be a Convention refugee under Section 96 and I accept your claim for protection.

[57]     That is my decision thank you very much. Thank you so it is 11:56 I have delivered my decision we will go off record thank you everyone.

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