Categories
All Countries Mexico

2020 RLLR 151

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.