2019 RLLR 218 – Refugee Law Lab

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

REASONS FOR DECISION

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

DESIGNATED REPRESENTATIVE

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

ALLEGATIONS

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

DETERMINATION

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

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

DETERMINATIVE ISSUES

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

ANALYSIS

Identity

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

Exclusion 1(F)(B)

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

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

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

Credibility

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

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

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

NEXUS

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

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

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

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

Subjective Fear

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

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

Objective Basis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[42] According to the RIR¹⁸:

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

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

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

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

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

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

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

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

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

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

STATE PROTECTION

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

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

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

INTERNAL FLIGHT ALTERNATIVE

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

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

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

CONCLUSION ON THE MINOR CLAIMANT

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

[55] His claim is therefore accepted.

CONCLUSION ON THE PRINCIPAL CLAIMANT

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

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

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

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

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

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

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

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

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

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

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

[67] Her claim is therefore rejected.

(signed) David D’Intino

October 22, 2019

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

2 Exhibit 2.1

3 Exhibit 1

4 Exhibit 4.

5 Exhibit 8

6 Ward v. Canada

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

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

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

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

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

12 Supra note xii.

13 Ibid.

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

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

16 Exhibit 3.

17 Exhibit 7, pg 2.

18 Ibid at pgs 2-3

19 Ibid at pg 6.

20 Ibid at pg 7-8.

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

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