Citation: 2019 RLLR 157
Tribunal: Refugee Protection Division
Date of Decision: December 3, 2019
Panel: David D’Intino
Counsel for the Claimant(s): Nicholas Woodward
Country: Bahamas
RPD Number: TB8-29801
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000111-000117
DECISION
[1] MEMBER: So, this is my decision for file number TB8-29801. Please note, that the written reproduction of this decision may contain changes in grammar, syntax and references to additional country conditions as the case may be. Your going to receive a written copy of my decision in the mail as well as your counsel. The claimant in this matter is XXXX XXXX XXXX. She is a Mexican citizen and claims refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act, hereafter referred to as IRPA.
ALLEGATIONS
[2] The claimant’s allegations are fully set out in her Basis of Claim Form found at Exhibit 2. To summarize, the claimant alleges a serious possibility of persecution and a risk to life in Mexico on account of her gender identity, her HIV status by Mexican society at large and also a serious possibility of persecution and a risk to her life by La Familia Michoacana, a Mexican drug trafficking organization.
CHAIRPERSON’S GUIDELINES
[3] In hearing this claim, I have considered and applied the Chairperson’s Guideline 4, Woman Fearing Gender Related Persecution and Guideline 9, Sexual Orientation and Gender Identity and Expression.
DETERMINATION
[4] I find that the claimant is a Convention refugee as contemplated within Section 96 of IRPA. She has demonstrated a serious possibility of persecution in Mexico on grounds of her gender identity and is therefore, a member of a particular social group, transgendered persons. I should note that the claimant had alternate potential Nexus to the Convention as well. For example, on the basis of her political activism on behalf of the transgender community or on the basis of being a female fearing gender related persecution in Mexico. As I am accepting her claim, my reasons will only focus on one of these Nexuses.
ANALYSIS
IDENTITY
[5] The claimant’s identity is established, on a balance of probabilities, by her Mexican passport, contained within Exhibit 1 and a birth certificate and Mexican government documentation confirming her gender transition, both of which are contained in Exhibit 4.
EXCLUSION UNDER ARTICLE 1F(b)
[6] The claimant was charged while living in Texas with possession of cocaine. She plead guilty to the lesser included offence of possession of cocaine between 1 to 4 grams. A third-degree felony which was reduced from the original charge of a second-degree felony. She received a sentence of three years in prison but only served a fraction of that sentence before being paroled. She was then subsequently deported to Mexico in early 2011. Details are fully provided in the claimant’s disclosure in Exhibit 4. The equivalent offence under Canadian law would be Section 4 Subsection (1) of the Controlled Drugs and Substances Act for possessing a Schedule One substance. This is a hybrid offence but presumed for our purposes to be an indictable election by the crown.
[7] In considering the totality of the facts are set out in JS Sikhara v. Canada and its related jurisprudence. I find that the claimant is not excluded from refugee protection under article 1 F(b). I do not have the requisite, serious grounds to consider that a serious non-political crime was committed by the claimant outside the country of refuge. It is highly likely, sorry it’s unlikely she would have a received a custodial sentence at all in Canada, given her status as a first-time offender, her guilty plea which is a sign of remorse and the very small amount of cocaine involved. And so, for those reasons, I find that she’s not excluded from refugee protection.
INCLUSION
CREDIBILITY
[8] I find that the claimant was a credible witness, on a balance of probabilities. Her evidence both in documentary form and in oral examination was consistent, was free from material omissions or contradictions. She was very articulate, she followed my instructions perfectly, she was pleasant and respectful and did not embellish her evidence. I have no concerns with her credibility, but even if I didn’t believe the claimant she would still have her residual profile which would produce a serious possibility of future persecution in Mexico as a member of a particular social, transgendered women. Also, her HIV status and her status as a woman who has experienced past gender related persecution would also expose her to a future persecution for, sorry, to future persecution in Mexico on those grounds as well. In any event, I accept the claimant’s evidence without reservation.
[9] I will not revisit all of the details of her claim but the main findings that I would make in grounding my decision as are as follows. First of all, she’s a transgendered Mexican woman, she’s also HIV positive. She has experienced past gender related violence including several sexual assaults and has been threatened with death by her own brother. She has in the past been forcibly sex-, sex trafficked by a Mexican drug cartel, placing an already marginalized person into an even further marginalized group. She has been denied both employment and educational opportunities in Mexico in a systemic fashion on account of her gender identity. She has been diagnosed by the Centre for Addictions in Mental Health with gender dysphoria and post traumatic stress disorder. That report is contained within Exhibit 4 of the claimant’s documents. She has been involved in a number of transgender rights and LGBTQ organizations as an advocate in United States and Canada and would continue that activism even if she was returned to Mexico. She has a sincerely held belief that if returned to Mexico she would face persecution and violence on account of her gender identity, her diagnosis and her trans rights activism. She believes that she would not have access to her currently prescribed medication in Mexico which would pose a risk to her life and also her dignity as a human being.
NEXUS
[10] As I mentioned, I find that the claimant is the member of a particular social group, transgendered persons. Gender identity is an innate and unchangeable characteristic of a human being as identified in Ward v. Canada and as such this claimant has a Nexus to the convention.
SUBJECTIVE FEAR
[11] The claimant at all material times has acted consistent with someone who professes a subjective fear of persecution. For example, the claimant filed for refugee protection within a month of her arrival in Canada. As such, and in part because I found her wholly credible, I find that there is sufficient evidence on the record to conclude that the claimant has a subjective fear of persecution on a Convention ground.
OBJECTIVE BASIS
[12] Counsel has filed 22 articles detailing the violence against LGBTQ persons in Mexico. The first article details that Mexico is now the world’s second deadliest country for trans people, it is dated September 11th, 2019. Another article from May 7th, 2019, discusses how a shortage of HIV drugs in Mexico have left hundreds of people without medication, which is essential to their survival. Other articles included, describe the torture in gruesome murder of gay men and trans-gendered women in Mexico. I find that these articles are wholly consistent with the National Documentation for Mexico-, National Documentation Package for Mexico as a whole vis à vis transgendered persons. They are very recent articles and I find that they are highly probative and I furthermore, place great weight on counsel’s documentary disclosure. Turning now to the NDP for Mexico, Item 6.1 of the NDP notes that, “A report on crimes against transgendered women sent to the research director by a representative at the support centre for transgender identities, in Spanish, Centro de Apoyo a las Identidades Trans or CAIT, an NGO that advocates for the rights of transgendered woman in Mexico, indicates that transgendered women are discriminated against by the police in the judicial authorities.” The representative from Colectivo Leon Gay Ac, which is also a-, an NGO for transgendered persons, indicated that LGBTQ persons are frequently harassed and arbitrarily detained due to their physical appearance, the way they dress or for express-, expressing affection in public.
[13] 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.” According to Colectivo Leon Gay Ac, officials from the public ministry often mistreat LGBTQ persons and refuse to open investigations for crimes against them. In-, In correspondence with the research directorate, a representative from Queer Investigations, a civil society that advocates for the right of LGT-, rights of LGBTQ persons in Mexico, indicated that despite a lot of training provided to judicial authorities on sexual diversity, there’s still a lot of intimidation and threats against the LGBTQ population due to what they perceive as faults against morals, which are used to extort members of the LGBTQ community.
[14] Also, from item 6.1, “Transgender women in Mexico face brutal violence, not only from private citizens but also from state officials.” Police officers in the military subject transgender women to arrest, extortion and physical abuse. Many transgender women have been the victims of police violence or know someone who have been a victim. According to Victor Clark, Professor at San Diego University and the Director of the Bi-National Centre for Human Rights in Tijuana, Mexico, the police and military are the primary predators targeting trans gender women. Mexican police target transgender women and arbitrarily arrest them for pretextual reasons such as, “disturbing the peace” and “because they were not wearing female clothing for being perceived to be sex workers even if they were not, for failing to carry a valid health card for-, for allegedly carrying drugs or for being said to be gay.”
[15] For example, in March 2014, police officers in Chihuahua, Mexico arrested five transgender women for not carrying a health card even though this isn’t a crime. At the police station, male police officers forced the transgender woman to undress in front of them. The police then illegally forced the women to take HIV tests, the police held the transgender women in jail for 36 hours and demanded 200 pesos from each woman for release. For decades, the Mexican police forces have been implicated in cases of arbitrary detention, torture and other human rights violations that are often unpunished. Police officers often extort transgender women for sex or money in return for not arresting them or for releasing them from jail. Many transgender women have had to pay almost daily bribes to avoid being arrested.
[16] Furthermore, in its March 2017 Human Rights report, covering the year 2016, the USDOS report notes the following concerning the discrimination of LGBTQ persons in Mexico. Discrimination based on sexual orientation and gender identity was prevalent, despite a gradual increase in the public tolerance of LGBTQ individuals according to public opinion surveys. In March, Ruby Suareaz Araujo began-, became the first transgender municipal counsellor in Guanajuato, for example. In October the press reported three killings of transgender individuals in a space of 13 days. NGOs stated that transgender individuals face discrimination and were mar-, marginalized even within the gay and lesbian community. These are but a few examples of the information contained within the claimant’s Country Conditions Documentation and the NDP for Mexico, which for reference is Exhibit 3. I find that in considering all of this information, that the-, on a balance of probabilities, the claimant has demonstrated an objective basis for her subjective fear of persecution in Mexico on account of her membership in a particular social group, transgender women and also on account of her HIV diagnosis, and so in that vain her fear is well-founded.
STATE PROTECTION
[17] States are presumed to be capable of protecting their citizens. Mexico is a democratic country with a functioning government and a military that exercises effective control over its territory. Therefore, the claimant must-, must rebut the presumption of state protection with clear and convincing evidence. Where the state itself is an agent of persecution, however, the claimant will also succeed at rebutting this presumption. The country documentation for Mexico provides sufficient documentation to demonstrate that state actors are often an agent of persecution for members of the LGBTQ co-, community and especially the trans community. Claimants are not required to place their lives in jeopardy to avail themselves of state protection, which in any case would not be reasonably forthcoming. Item 6.1 provides the following examples where state actors have been implicated in the atrocities against LGBTQ persons, “In Mexico City a young man was alleg-, allegedly arrested by federal police officers while he was walking the street late at night. When asked why he was being arrested, the officers answered, “because you are gay” and then asked him to preform oral sex on them.”
[18] Police abuses also reported to take place in and around places were LGBTQ persons socialize or-, or its surroundings. For example, a violent police raids reported to have taken place at a LGBTQ beauty pageant in Monterrey, Mexico in February 2013. Agents of the federal police force under the command of an official of the Federal Public Ministry stormed the nightclub where the contest was taking place, ordered everyone out and arrested at least 70 people who were present at the event who were fined without criminal charges. According to the information presented to the commission, police agents insulted them using homophobic and trans-phobic slurs, “faggots, we are taking you because you are dressing up-, because dressing up as women is immoral.”
[19] The claimant has testified today that she has little faith in the ability of the authorities in Mexico to protect her. She alleges that the transgender community at large feels the same way. Item 6.3 explains why that might be. From Item 6.3, 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.”
[20] Transgender women avoid reporting police out of fear of police retaliation against them or their family members. Further, human rights commissions tend to be anti-LGBTQ and will often disregard complaints by transgender women. Transgender women cannot depend on inadequate and ineffective laws penalizing hate crimes to protect their rights. Since Mexico recognized same sex marriage in 2010, several prominent advocates in the transgender community have been brutally murdered. Many of these killings occurred in Mexico City despite its adaptation of hate crimes statues and anti-discrimination laws. In 2010, a Mexican National Survey about discrimination found that 83.4 % of LGBTQ Mexicans had faced discrimination because of their sexual preference. In 2011, the same survey reported the principal bases of discrimination was sexual preference. In 2012, however, gender identity was the most frequent bases for discrimination showing growing rates of discrimination against the transgender community. “It is clear the Mexican government is unable to effectively protect transgender women”, that’s a direct quote.
[21] In considering the testimony of the claimant and the documentary evidence provided by counsel and the National Documentation f-, for Mexico, I find that the claimant has rebutted this presumption of state protection with clear and convincing evidence. I find that adequate state protection would not be forthcoming for this claimant and I find that the Mexican state itself is an agent of persecution for her.
[22] Lastly, internal flight alternative. The claimant alleges a fear of Mexican society in general as well as the La Familia Michoacán Cartel. I purposed Mexico City as a-, as an internal flight alternative outside of Michoacán 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 a Convention ground in Mexico City and therefore, the IFA location fails the first prong of the analysis. Item 6.4 depicts Mexico City as the most progressive area in-, in Mexico visive LGBTQ rights. For example, it was the first district to legalize same sex marriage and also to allow persons to change their gender identity. One source quoted in this item said that there are, “gay friendly zones or gay zones where the LGBTQ community feel safe from being abused. Although there are police officers that look for anyway to intimidate or extort couples wherever they are.”
[23] The UN special rapporteur on extra judicial and arbitrary executions noted, “the alarming pattern of grotesque homicides from lesbian, gay, bisexual and transgender individuals and the broad impunity for these crimes, sometimes with the suspected complexity of investigative authorities.” According to the report by CA-, CEAV and Fundación Acrois, trans women and homosexuals represent the group most effected by motivated physical assaults. Between January 2014 and December 2016, 202 sexual minorities or those perceived as such were killed as a result of their sexual orientation or gender identity or expression. Including 108 trans women, 93 gay men and 1 lesbian woman. The highest number of victims, 76, was recorded in 2016. Of the total 202 victims, 33 showed signs of torture while 15 showed signs of sexual violence.
[24] In addition to these cases, I also eluded to a case from Mexico City earlier in my decision. In item 6.4 discusses how in June 2012 in Mexico City, the body of a transgendered women was dismembered. Her remains were found abandoned in different neighbourhoods in the Benito Juarez District. In 2013 police found the body of a transgender woman who headed the 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 transgendered woman. Again, these are but a few examples of the violence and persecution that trans people face on a daily basis. And Mexico City does not appear to be the safe-, as safe as it is liberal for the LGBTQ community.
[25] Ultimately, I find that the preponderance of evidence weighs in favour of the finding that the claimant would face a serious possibility of persecution on a Convention ground in Mexico City and throughout Mexico and therefore, I find that the proposed IFA location is not safe for her.
CONCLUSION
[26] The claimant has demonstrated a serious possibility of persecution in Mexico on the Convention ground of membership in a particular social group, transgender women. This, this serious possibility exists on a forward-looking basis and throughout Mexico such that there is no location within Mexico which is both safe and reasonable in all of her circumstances. She has demonstrated, on a balance of probabilities, that the adequate state protection would not be forthcoming for her, in part because the state authorities are an agent of persecution. As such, the claimant is a Convention refugee within the meaning of Section 96 of IRPA. Her claim is therefore, accepted.
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