Citation: 2021 RLLR 29
Tribunal: Refugee Protection Division
Date of Decision: March 17, 2021
Panel: Vandana Patel
Counsel for the Claimant(s): Adrienne C. Smith
Country: Mexico
RPD Number: TB9-32419
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000141-000150
REASONS FOR DECISION
[1] XXXX XXXX XXXX XXXX XXXX XXXX (the claimant), a citizen of Mexico, seeks refugee protection, under 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 Basis of Claim (BOC) forms.2 The claimant fears persecution from her family and society generally because of her gender identity. She fears that, if forced to return to the transphobic environment in Mexico, she will be subjected to persecution based on her gender identity from members of Mexican society, including certain members of her family, prospective employers and the authorities. The claimant alleges that she has been verbally, emotionally, psychologically and physically abused by members of her family and others, during her adolescence and adulthood, in Mexico. The claimant also alleges that she suffered discrimination and violence due to her gender identity.
DETERMINATION
[3] The panel finds that the claimant would face a serious possibility of persecution on a Convention ground upon return to Mexico. She is a Convention refugee and the claim is accepted.
ISSUES
Nexus
[4] The claimant alleges that the persecution she faces is due to her membership in a particular social group in Mexico, namely trans 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
Credible Subjective Fear
[6] In considering credibility, the panel is aware of the difficulties that may be faced by the claimant, a 45 year old trans woman, 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.4
[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)5 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.
[8] The claimant was not reluctant to discuss her gender identity. She was born a male but she has openly identified as a trans female for many years, since at least when she was a teenager. She testified about her fears, including having to hide her gender identity, based on her past experiences in Mexico, if she must return to Mexico. The claimant testified that when she lived in Mexico, including in Mexico City, she had to bide her identity as a trans woman. Members of her family and other members of the community have made transphobic comments about her gender identity.
[9] The claimant had great difficulty testifying about being abducted and sent to a “conversion therapy” clinic by her family to change her gender identity. In this regard, the panel was cognizant of the claimant’s XXXX health issues, adding to the marginalization factor. The claimant was deemed to be a vulnerable person based on medical evidence and the panel made accommodations. Guideline 8 – Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada6 was considered and applied. She testified about her fears about being misgendered. violence and being killed because of her gender identity. She fears for her safety living as a trans woman anywhere in Mexico.
[10] The claimant’s history of social isolation, mistreatment and lack of social support and mental disabilities were considered in terms of the way she testified. The report by the XXXX resident submitted was considered; in particular the diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (in remission) and XXXX XXXX XXXX (in remission); and the significant impact of the claimant’s experience of emotional and physical violence as a result of her gender identity.7 The report states, “On assessment, she reports a significant trauma history, involving a forced institutionalization while living in Acapulco, Mexico several years ago, which has resulted in symptoms of XXXX XXXX XXXX XXXX, including reexperiencing, XXXX XXXX XXXX and negative XXXX in XXXX XXXX and XXXX.
[11] Given that the claimant was straightforward and gave many details in other areas of her testimony, the panel accepts that she experienced a traumatic experience, involving some kind of conversion therapy that had a link to her gender identity. For example, she testified about them cutting her hair.
[12] The claimant gave evidence as to why she had re-availed herself of Mexico after years in the U.S., why she did not make an asylum claim in the U.S. and why she took so long to make a refugee claim in Canada. The panel accepts this as not being determinative of the claim,8 given her residual profile, a trans woman, for which there is a serious possibility of forward-looking persecution in Mexico, based on the National Documentation Package for Mexico9 and the claimant’s documentary disclosure.10
[13] Although credibility, persecution versus discrimination and whether she has a subjective fear of return to Mexico (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 years. The panel accepts that the claimant is a transgender woman and that she has a subjective fear of persecution in Mexico.
[14] Moreover, the claimant’s testimony was corroborated by copious amounts of corroborative documentary evidence,11 including medical reports from XXXX 2020, letter of support from the Hola Group dated XXXX XXXX XXXX 2020, letter of support from XXXX XXXX XXXX XXXX XXXX Neighbourhood Centre, letter of support from XXXX XXXX XXXX, The 519 (dated XXXX XXXX XXXX 2020), letter of support from XXXX XXXX, The 519 (dated XXXX XXXX XXXX 2021), several other support letters from her friends, emails related to her asylum application in the U.S., an email from the claimant to Adam House requesting assistance in refugee and legal aid process dated XXXX XXXX XXXX 2019, other emails relating to making her claim in Canada, photographs, and media articles confirming the situation for LGBTQ communities in Mexico and in illegal rehab centres in Mexico. Thus, the panel finds, on a balance of probabilities, that the claimant has subjective fear.
Objective Basis
[15] Transgender women in Mexico still face pervasive persecution based on their identity gender identity and expression. Documentation 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
[16] 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, many challenges remain, particularly for persons with the claimant’s profile.
[17] While unprecedented political and legal gains have been made in Mexico, the religious, cultural and social environment in most of Mexico remains repressive, and often dangerous.13 Machista ideals of manly appearance and behavior contribute to extreme prejudices against sexual minorities, and violence against them.
[18] 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 claimant’s circumstances, 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.
[19] 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.14
[20] A recent Response to Information Request further notes from various sources that despite the president creating the National Guard, which began its activities to fight organized crime on June 30, 2019, “at the expense of the local police forces that are experiencing precarious conditions”, “the organization has failed to address criminality in a measurable way” and “violence has not decreased in the three states with the greatest National Guard contingent.”15
[21] 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.16 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 identity documents to match their gender presentation. It is indicated:
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 trea1rnen1 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 io 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.211 Even where it is available, such care can be prohibitively expensive for transgender women already suffering the effects of economic marginalization discussed earlier.212 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.17
[22] Further documentation notes:
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 … 18 [footnotes omitted]
[23] Thus, the panel finds, on a balance of probabilities, that there is an objective basis for the claimant’s subjective fear.
No State Protection
[24] In light of the above documentary evidence regarding similarly situated persons in Mexico who did not receive adequate state protection, there is sufficient evidence before the panel to conclude that, despite efforts made by the state, at this time, the state is not able to offer adequate protection19 to trans women, like the claimant.
[25] Therefore, the panel finds that there exists clear, convincing and cogent proof that state protection is not available to trans women, 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.
Internal Flight Alternative (IFA)
[26] With respect to an IFA, it is clear from the documentary evidence that societal prejudices against transgender persons are found all over Mexico, including Mexico City. Documentation reports as follows:
Police harassment against the LGBT community remains high in Mexico City as well. Despite the reputation of the Zona Rosa district of Mexico City as an LGBT neighborhood, extortion and harassment particularly of transgender women continues there. As described above, Mexico City also has the highest rate of transphobic murders in the country. Moving to Mexico City will therefore not protect transgender women from persecution: they will remain vulnerable no matter where they reside in Mexico.20 [footnotes omitted]
[27] There is blatant disregard for the safety and wellbeing of trans women, like the claimant. Homicides and assaults against these groups continue under a backdrop of religious and cultural tolerance and moral condemnation. Having to hide her gender identity amounts to a serious interference with a basic human right, constituting persecution.21 Based on the evidence adduced, the panel finds that there is no viable IFA for trans women in Mexico City or throughout Mexico.
[28] Based on the totality of the evidence adduced, the panel finds, on a balance of probabilities, that there is a serious possibility, based on her evidence, that she would be persecuted due to her gender identity as a trans woman should she return to Mexico.
CONCLUSION
[29] Accordingly, the panel accepts the claimant as a Convention refugee. The claim is accepted.
(signed) Vandana Patel
March 17, 2021
1 Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim (BOC) form; and Exhibit 2.1, BOC amendment.
3 Exhibit 1, package of Information from CBSA/CIC, certified true copy of the claimant’s passport.
4 Exhibit 5.
5 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 Chairperson ‘s Guideline 8 – Concerning Procedures with Respect to Vulnerable Persons Appearing Be/ore the Immigration and Refugee Board of Canada.
7 Exhibit 5, disclosure, pp. 28 to 34.
8 Rajudeen v. Canada (Minister of Employment & Immigration), [1984] F.C.J. No. 601, 55 N.R. 129 (F.C.A); and
Sukhu v. Canada (Minister of Citizenship & Immigration), 2008 FC 427.
9 Exhibit 3.
10 Exhibit 5.
11 Exbibit 5.
12 Exhibit 3, item 6.3.
13 Ibid., 6. 4.
14 Ibid., 6.3.
15 Ibid., item 7.18.
16 Ibid., item 6.4.
17 Ibid., item 6.3.
18 Ibid., item 6.1.
19 Ibid., item 6.4.
20 Ibid., item 6.3.
21 Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), 2004 FC 282; See also, Rocha Cortes v. Canada (Citizenship and Immigration), 2020 FC 661; and A.B. v. Canada (Citizenship and Immigration), 2020 FC203.