Citation: 2020 RLLR 166
Tribunal: Refugee Protection Division
Date of Decision: October 26, 2020
Panel: François Savoie
Counsel for the Claimant(s): Émile Le-Huy
Country: Mexico
RPD Number: MB9-13609
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000048-000054
REASONS FOR DECISION
INTRODUCTION
[1] XXXX XXXX XXXX XXXX, a citizen of Mexico, claims refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).
ALLEGATIONS
[2] The claimant is a trans woman, trans rights activist and former sex worker from Mexico who fears the police and her former procurer.
[3] The claimant was illegally detained by the police on multiple occasions. Most recently, she was detained in XXXX 2016, ahead of a press conference organized by a trans rights organization she helped found in Monterrey.
[4] The claimant was also kidnapped and severely beaten by the police in Puebla in XXXX 2018.
[5] The claimant fears further mistreatment from the police were she to return to Mexico.
[6] She also fears retaliation from her former procurer for having publicly denounced her practice of charging a fee to assist trans women in changing their legal names and legal gender in Mexico City. She also fears retaliation from her for having denounced her mistreatment to the police.
[7] The claimant left Mexico on XXXX XXXX XXXX 2018 and arrived in Montreal the next day. She filed for refugee protection on XXXX XXXX XXXX 2019.
DECISION
[8] The Tribunal finds that the claimant is a “Convention Refugee” pursuant to section 96 of the IRPA.
ANALYSIS
[9] In the present case, the Tribunal considered the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guidelines).
Identity
[10] The claimant’s personal identity and her national identity as a citizen of Mexico are established, on a balance of probabilities, by a copy of her passport filed as evidence.
Credibility
[11] The Tribunal finds the claimant credible on the material aspects of her claim; namely that she is a trans woman from Mexico.
[12] The claimant answered all questions put to her fully, spontaneously and without evasion.
[13] The claimant was able to explain with great details the difference, stigma, shame, and harm she felt growing up as a transgender woman.
[14] The claimant also explained how she began taking hormones at a young age, and later started taking testosterone blockers. She provided details about how she procured these medications. A medical report filed as evidence also showed that she had breast implants.1
[15] The claimant explained at large the types of situations she frequently faced in Mexico as a transgender woman. Some of the specific examples she gave could even be largely corroborated by the objective documentary evidence. As an example, the objective documentary evidence states that “[t]ransgender women [are] frequently accused of being involved in sex work, even when they [are] simply running errands like going to buy milk.”2 This is in line with the claimant’s testimony that she was once arrested and detained by the police while simply going to buy bread and milk at a depanneur.
[16] In addition to her testimony, the Tribunal carefully reviewed and considered documents filed by the claimant in support of her allegations. The Tribunal asked the claimant to explain what the process of changing her legal gender entailed. After having heard the claimant on the matter, the Tribunal asked the claimant how the process was reflected in the documentary evidence she provided. The claimant first pointed to her national elector’s card,3 which was issued prior to the name and gender change. This card, issued in 2013, showed her former male name and showed her gender as male. She then pointed to the birth certificate which was issued following her legal name and gender change, issued in 2015.4 This document showed her new female name and showed her gender as female.
[17] Other evidence also allowed the Tribunal to understand the claimant’s activism in the trans sphere. Not only did the claimant seek justice for herself, she also sought to help members of her community by lobbying governments.
Incompatible Behaviour – Travel ta Spain and Return to Mexico
[18] According to her IMM-5669 form, the claimant travelled to Spain in 2017 to study XXXX XXXX. While in Spain, the claimant did not file for refugee protection and subsequently returned to Mexico.
[19] The Tribunal asked the claimant why she had not filed for refugee protection in Spain. The claimant testified that she did not feel that things were so bad in Mexico at that time. She also testified that she had started her work as an activist and returned to Mexico to help her friends with their activism project.
[20] The Tribunal notes that the claimant’s travel to Spain happened prior to the last set of events that lead the claimant to leave Mexico for Canada. The Tribunal is also mindful that, according to the Chairperson’s Guidelines 9, it may be plausible that a trans woman like the claimant would engage “in activity that might put [her] at risk in [her] country of reference.”5 Considering the above and the claimant’s profile as an activist, the Tribunal makes no implausibility findings in relation to her failure to file for refugee protection in Spain and in relation to her return to Mexico.
Delay in Claiming Refugee Protection in Canada
[21] The claimant spent just shy of six months in Canada prior to filing for refugee protection.
[22] At the hearing, the claimant testified that she had been asked by the Canada Border Services Agency (CBSA) whether she wanted to claim asylum in Canada on arrival in Montreal and that she had answered no to that question.
[23] Considering the claimant’s personal situation as a trans woman who has been through a lot of violence, the Tribunal does not make any negative inference related to her delay in claiming. The Tribunal subscribes to the observations made by the claimant’s counsel according to which the claimant may not have been necessarily familiar with the workings of refugee claims in Canada and that it is quite possible that she may have had a psychological difficulty in taking action.
Nexus
[24] For the claim to succeed under section 96 of the IRPA, the persecution must be linked to a Convention ground, in other words, there must be a nexus.
[25] The Tribunal finds that the claimant has established a nexus to the Convention, as the harm feared is on account of her membership in a particular social group (trans women).
[26] For the reasons set out under the State Protection and Internal Flight Alternative sections below, the Tribunal also finds that, on a balance of probabilities, the claimant has a serious possibility of facing serious harm should she return to Mexico. The objective documentary evidence tendered into evidence by the board supports this finding.
State Protection
[27] Canada’s responsibility to provide international protection to the claimant only becomes engaged when national or state protection is unavailable to the claimant. The claimant has the burden of rebutting the presumption of state protection. The Tribunal must now determine whether the claimant has presented clear and convincing evidence to rebut the presumption of state protection.
[28] According to the objective documentary evidence, transgender women often do not report hate crimes or police abuse because the authorities rarely investigate these crimes.6 Crimes committed towards trans women are frequently minimized and mischaracterized by authorities.7
[29] The objective documentary evidence also reports that police officers subject transgender women to arrest, extortion, physical abuse, arbitrary detention, torture, and other human rights violations that are often unpunished.8
[30] While the Mexican government has enacted laws aimed at protecting sexual minorities, such laws only provide explicit protections based on sexual orientation and not based on gender identity.9 The fact that the claimant was able to have her name and gender changed on her birth certificate does show that the government is making steps in the right direction, however, legal recognition does not necessarily translate into adequate protection. According to the objective documentary evidence, “federal antidiscrimination laws do not protect transgender communities from persecution because the Mexican government is unable to enforce them, especially because the police themselves are often the perpetrators of violence against transgender people.”10 Moreover, it is far from clear whether the enactment of antidiscrimination laws “has actually led to an improvement in the treatment of LGBT people generally or transgender women in particular.”11
[31] Having considered the claimant’s testimony and the objective documentary evidence regarding the availability of state protection for trans women in Mexico, the Tribunal is of the view that evidence of Mexico’ s inability to protect trans women is clear and convincing. The Tribunal therefore finds that, on a balance of probabilities, the state protection afforded to trans women in Mexico is inadequate and that the claimant has rebutted the presumption that state protection is available in her country.
Internal Flight Alternative (IFA)
[32] According to the objective documentary evidence, Mexico has the second-highest index of crimes motivated by transphobia in Latin America after Brazil.12 Geographically, transphobic murders occur throughout the country including in areas with more progressive laws such as Mexico City.13
[33] Nothing in the evidence suggests that the claimant could be safe outside of her home area. The claimant testified that she moved across the country on several occasions, yet always ended up being badly treated by the police everywhere she went.
[34] The Tribunal finds that there is, on a balance of probabilities, a serious probability of the claimant being persecuted throughout Mexico. There are no internal flight alternatives available to the claimant.
CONCLUSION
[35] Having considered all the evidence, the Tribunal determines that there’s a serious possibility that the claimant would be persecuted in her country.
[36] The Tribunal concludes that the claimant is a Convention refugee.
[37] The claim of XXXX XXXX XXXX XXXX is accepted.
(signed) François Savoie
October 26, 2020
1 Document 4 – Exhibit D-6.
2 Document 3 – National Documentation Package (NDP), Mexico, 30 September 2020, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, page 13.
3 Document 4 – Exhibit D-10.
4 Document 5 – Birth Certificate issued on XXXX XXXX, 2015 (Submitted during the hearing).
5 Guidelines 9 – 7.5.1 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. Effective date: May 1, 2017.
6 Supra, note 2, page 12.
7 Idem.
8 Supra, note 2, page 18.
9 Ibid, page 11.
10 Idem.
11 Ibid, page 10.
12 Ibid, page 15.
13 Idem.