2023 RLLR 11

Citation: 2023 RLLR 11
Tribunal: Refugee Protection Division
Date of Decision: December 22, 2023
Panel: J. Eberhard
Counsel for the Claimant(s): M. Mary Akhbari
Country: Mexico
RPD Number: TC2-35150
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: Okay, I have had an opportunity to examine the evidence before me, and I am ready to render my decision orally. You will receive an unedited copy of the transcript in the near future, and your Counsel will get a copy by email in the next couple of days. The claimant, XXXX XXXX XXXX (ph), claims to be a citizen of Mexico and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. The Board’s information record also includes XXXX’s name at birth. Because XXXX has not yet legally changed his name, I will include this name on the cover page of the decision to prevent any processing or administrative problems and because of its consistency with his national identity documents, specifically his Mexican passport.

[2]       I find that you are a Convention refugee because you have established you face a serious possibility of persecution in Mexico as a member of a particular social group, namely members of the two (2) spirit LGBTQI community. In deciding your claim, I have taken into account the Chairperson’s Guidelines on sexual orientation and gender identity expression, the guidelines on gender considerations in proceedings before the Board. These are guidelines 9 and 4, respectively.

[3]       I have also considered and applied the recently updated accessibility guidelines, guideline 8, which had previously been referred to as the vulnerable persons guidelines. Under the previous guideline 8, which was in effect until October 30th, 2023, you were designated a vulnerable person. Today, we implemented the accommodations you were granted in line with those recommended by professionals that you have seen and with the guidelines as outlined in the new guideline 8.

[4]       The details of your claim are set out in your Basis of Claim form, which you signed on the 14 July, 2022, and updated by amendments dated 29 November, 2023. These documents are in Exhibits 2 and 2.1.

[5]       In short, since you were five (5) years old, you realized that you felt differently from others around you, particularly little girls. Your preferences for toys and clothing were more aligned to those of your brothers.

[6]       You later recognized your attraction to other females. At 15, you came out as a lesbian to your parents after you solidified these feelings together with your first girlfriend. You were in each other’s lives from 2010 to 2016. Your family was not happy but provided you with some space to be together as long as you kept your relationship mainly hidden. In fact, your parents were more focussed on your brother, who had also come out to them as gay.

[7]       Your girlfriend’s family was more actively disapproving, and your girlfriend’s mother even attacked you, expressing her opposition.

[8]       Despite having to hide the true nature of your relationship and despite bullying and harassment that you faced, you stayed together for many years. You finally left your first love in 2016, returning the engagement ring that she had given you.

[9]       By then, you were living with your older siblings alternately in Playa del Carmen, where you were able to work and go to school. There, as you had in your hometown, you faced both gender-based and sexual harassment. You also faced harassment and threats in particular from male co-workers, especially those who knew your sexual orientation and who threatened to rape you to change you. This made you angry, but you maintained your focus on earning the money you needed to save in order to leave Mexico, and despite the challenges that you faced, you managed to work and study hard.

[10]     In XXXX 2017, your sister’s boyfriend sexually touched you when you were living with her. You returned at that time to live with your brother, and your sister refused to believe you, even when your brother interceded.

[11]     Later, the situation with male co-workers escalated after you were moved to a new workplace. You told these co-workers to stop harassing you and you reported them, but the management and the human resource people did not support you. By XXXX 2022, you quit.

[12]     Worse, on XXXX XXXX, 2022, a male co-worker whose advances you rebuffed hit you. He seriously injured your face and your knee. You could not afford to access medical treatment and you were afraid of missing the flight that you had booked for the next day to Germany.

[13]     You were travelling to Germany both in order to leave Mexico and because you wanted to meet a woman you had begun to date after you met online. On XXXX XXXX, 2022, you travelled to Berlin, where the relationship with this woman deteriorated after she refused to help you.

[14]     In order to save money, you had purchased a less expensive flight to Berlin because it included routing to Canada. When things fell apart in Berlin, you used the remaining portion of your ticket to fly to Canada via Munich. You said help at the airport when you arrived in Toronto on XXXX XXXX 2022, and soon thereafter, you formally sought refugee protection.

[15]     In Canada, you have clarified for yourself that you are not a lesbian and you have undertaken a transition process to fully embody your authentic self. You have chosen the name XXXX and you will undertake legal steps necessary to formally change it, and you have also accessed substantial support here in Canada, including at XXXX XXXX XXXX XXXX.

[16]     You have established your identity as a national of Mexico on a balance of probabilities by your testimony and a copy of your passport, which is in Exhibit 1 as well as in Exhibit 4 and 7.

[17]     I find you are a very credible witness and I believe what you have alleged in support of your claim. Your testimony was open, straightforward, thoughtful, and natural, and you answered my wide-ranging questions about the core aspects of your account without any hesitation. There were no relevant inconsistencies in your testimony or contradictions between it and the other evidence before me that you did not satisfactorily explain. Specifically, I accept your explanations for why you travelled to Germany before coming to Canada and yet did not claim refugee protection there.

[18]     You have provided substantial, relevant, and probative personal documentation that corroborates all aspects of your claim. Specifically, these documents are in Exhibit 7. An additional — in addition to more identity documents, including your national identity card and birth certificate issued by Mexican authorities, you also disclosed many personal, professional, and medical documents that contain information that is consistent in content and chronology with your testimony and your overall account.

[19]     Many of the documents confirm your work and education in Mexico and your XXXX XXXX. XXXX of your work are in Exhibit 7, and you sold some of these to raise funds for your airfare to leave Mexico. To the heart of your claim, you provided several medical documents from a number of agencies, including XXXX XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX XXXX XXXX XXXX. These confirm your efforts to know yourself, to live authentically, and to gather support for your transition process here in Canada. Other evidence include letters from several persons who have witnessed and participated in various ways in your journey, including your mother, your brother, your sister, your former girlfriends, former co-workers, and even a lifelong friend who has watched you grow and overcome challenges since you were in primary school together. I also note the several medical documents in evidence that reflect injuries to your head over your lifetime, and these have XXXX XXXX XXXX and given you XXXX. Other XXXX and XXXX reports reflect the impact of other injuries you have suffered XXXX, XXXX, XXXX, XXXX, including by former co-workers, your sister’s boyfriend, and even your family members, who have not always fully or unconditionally supported you.

[20]     Many photographs (inaudible) Exhibit 7 reflect your past romantic relationships and your newfound community in Canada. Others show your family, and academic accomplishments, and past work experiences, including with a group of women that you very much enjoyed. The photographs also show a range of moments in your life, when you sometimes lived in hiding behind a wall of feminine clothes and hair, and sometimes lived more openly after you cut your hair and wore more comfortable clothes.

[21]     Again, all of these documents are consistent with your account of who you are and both who and what you fear if you return to Mexico. In your own words, you fear being raped and killed if you return, and you learned when you were young by the example of a young person who lived near you that such things are possible. For all of these reasons, I accept the evidence that you have presented, both documentary and testamentary, and find it to be credible.

[22]     A person who seeks protection as a Convention refugee has to establish what we call a well-founded fear of persecution on a Convention ground. There are two (2) parts. A person has to show that he is afraid of persecution, and there has to be information about what we know is happening in a country — in Mexico, in your case — that corroborates why that person is afraid. So, there is a subjective piece and an objective piece.

[23]     In your case, the primary Convention ground is membership in a particular social group. You are a member of the 2SLGBTQI+ community. You are subject to persecution in Mexico both as a person who was born into a female body and perceived by many to be female or a woman because you are attracted to females and you face persecution as a person who self-identifies as male and is undertaking a related transition to be able to live fully as XXXX. The nature of persecution you face, therefore, is both general and community-based given the highly patriarchal context in Mexico, where gender norms are very important and expectations around them matter, especially as they relate to religious beliefs, including in your own family, and the persecution that you face is personal because of the direct targeting that you have experienced in the past, including by co-workers, persons connected to your family, and even members of your own family who have not fully embraced all of who you are.

[24]     Your actions and decisions which you have undertaken in order to protect yourself and live authentically are consistent with those of a person who fears persecution in Mexico, and I find that you have established that you subjectively fear persecution as a member of the LGBT community there. In making this finding, I have considered that you would not have left Mexico, including your family and your community, unless you had to in order to protect your security and your life.

[25]     The objective documents form a clear basis for your subjective fear. The country condition documents in the National Documentation Package for Mexico dated 29 September, 2023, are in Exhibit 3, and Counsel’s documents are in Exhibit 8. All of the documents before me about the situation in Mexico are consistent with your allegations that you face a serious possibility of persecution there if you return.

[26]     According to the country condition information, there has been an increase in public tolerance of members of the LGBT community in Mexico. However, the objective evidence is also clear that lethal violence against members of the LGBTQI community continues to be one (1) of the most significant human rights problems in Mexico, including the discrimination on the basis of sexual orientation and gender identity, and these continue to be structurally rooted in beliefs in Mexico.

[27]     Crimes against sexual minorities are constant and motivated by prejudice. An estimated 76.4 percent of LGBTQI persons in Mexico have faced physical violence, 53.3 percent having been assaulted in public spaces. The objective evidence indicates that 1,310 lesbian, gay, bisexual, or trans persons were murdered in Mexico between 1995 and 2016, most of them at home or on the street, and in the last three (3) years, more than 200 members of the LGBTQ community have been murdered, with 93 percent of those being targeted being gay men. The violence has increased following the Mexican president’s now-withdrawn proposal to formally constitutionalize the right to same-sex marriage throughout the country, and for every one (1) LGBTQI person’s murder reported in the press, advocates estimate there are at least two (2) others that go unreported. So, the numbers are reported but are much lower than what the people actually working in on the ground know is likely to be true.

[28]     According to some of the NDP reports, the Mexican government has taken “significant steps” toward equality in the protection of members of the LGBTQ community, and there are some details about these different steps in the NDP, but the more important point is that the introduction of legislative protections in Mexico suffers from “operational inadequacies and ineffectiveness.” In other words, the laws do not work if they are not being enforced and used to actually protect people. They are not working.

[29]     The United Nations Special Rapporteur on Extrajudicial or Arbitrary Executions has condemned the “alarming pattern of grotesque homicides of lesbian, gay, bisexual, and transgender persons and the broad impunity for these crimes, sometimes with the suspected complicity of investigative authorities.” In other words, authorities sometimes look the other way when members of the LGBT community are harmed. Killings of LGBTQI persons are marked by either “a total failure to investigate or faulty investigations guided by stereotypes and prejudice, and authorities are quick to close such cases, calling them crimes of passion and choosing not to pursue protection or prosecution as seriously as they should.” In this way, rights for members of the LGBTQ community are treated as exceptions to be granted at the discretion of local officials.

[30]     The country condition documents also indicate that less than 10 percent of crimes committed (inaudible), and in the case of homophobic or transphobic crimes, even people who are found guilty are often set free, despite state procedures and policies that are supposed to exist to protect sexual minorities. They do not necessarily effectively protect them in practice.

[31]     The documentary evidence also indicates that while Mexico has some laws in place to criminalize official corruption, the government does not enforce these laws effectively either, and elected officials in Mexican — Mexico enjoy impunity from prosecution, including from corruption offences in office.

[32]     (inaudible) very clear the objective evidence reflects a complicity of state actors in the persecution of members of the LGBT community. Same-sex couples engaged in public displays of affection are frequently targeted by police abuse and arbitrary detention by state agents, often with excessive use of force or verbal abuse because of what is considered to be immoral behaviour in public spaces, and officials from public — from the public ministry often mistreat members of the LGBTQI community and refuse to open investigations for crimes against them.

[33]     The relationship between state actors and cartels, especially in certain areas of the country, further complicates the situation for members of the LGBT community who are further endangered by related threats.

[34]     (inaudible) are increasing in Mexico, especially since the pandemic. 10 women die every day, and these are not a priority for the Mexican government — or the Mexican government agenda. Even the current president of Mexico normalizes violence against women, according to the objective documents.

[35]     (inaudible) is particularly dire for trans persons. (inaudible) intersection of gender-based expectations with homophobia and transphobia increases risk, including for persons in the midst of a transition.

[36]     Mexico City is a federal district that recognizes gender identity. The other federal states in Mexico do not respect the constitutional laws on this topic. This results in a complex and expensive process to get the identity documents changed when somebody transitions, for example. This is one (1) example of how discrimination, which also can contribute to violence, against these members of the LGBT community remains particularly problematic. So, on the one (1) hand, Mexico City is the safest place to live, and yet even people who live there that are members of the LGBTQ community face pervasive discrimination, hatred, violence, and deal with both police abuse and even torture. (inaudible) the community also, for many, face a lifetime of rejection by their families, employers, and society as a whole, and again, there is an alarming pattern of violence.

[37]     In particular, I refer to Item 5.6 on the double pandemic of femicide during the COVID-19 pandemic, and Item 6.1 and 6.4 of the National Documentation Package, including Response to Information Request 1059538.E.

[38]     So, having taken into account the objective evidence together with your consistent and credible testimony, I find your fear of persecution in Mexico is well-founded. Given the evidence before me, both personal and objective, I find you face a serious possibility of persecution in Mexico if you return.

[39]     In regard to the totality of evidence before me, I find you have presented sufficient clear and convincing evidence that rebuts the presumption that state protection would be available to you if you return to Mexico and seek it. I find the state is unwilling or unable to protect you, on a balance of probabilities, if you return to Mexico.

[40]     In making this finding, I am following the Supreme Court of Canada’s decision in Ward in relying on your own personal experiences and the experiences of others similarly situated to you, including the young person, XXXX (ph), who was raped and killed at the river near you. I also accept that in the highly patriarchal Mexican context, you have experienced a lifelong series of denials, and rejections, and XXXX, and XXXX XXXX, XXXX, XXXX, and otherwise, and in this context, seeking protection from police when you believe it would not be forthcoming is unreasonable.

[41]     This possibility of persecution you faced exists throughout the country. There is no viable internal flight alternative available to you. It would not help you to move to another part of Mexico because these feelings are across the country and very deeply rooted. You have done your best to protect yourself even by relocating within Mexico to Playa del Carmen to continue to work and study while staying with your siblings and by keeping a discreet or, sometimes, even hidden profile. It is not reasonable for you to have to hide who you are, XXXX. It is not reasonable for you to have to hide in order to live. So, living fully and safely is not possible for you in Mexico given the situation that exists throughout the country, including the depth of homophobia and transphobia and lack of meaningful protection there.

[42]     I find that you have established you face a serious possibility of persecution in Mexico on a Convention ground. I therefore find that you are a Convention refugee, and I accept your claim.

——— REASONS CONCLUDED ———