2023 RLLR 19
Citation: 2023 RLLR 19
Tribunal: Refugee Protection Division
Date of Decision: December 7, 2023
Panel: Tim Crowhurst
Counsel for the Claimant(s): Paul R. R. Krumeh
Country: Mexico
RPD Number: TC3-27919
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: It is 11:34 a.m. and the reasons and decision begin now. The claimant, XXXX XXXX XXXX, also known as the claimant, is a citizen of Mexico who seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, IRPA.
[2] The claimant identifies as a trans woman, named XXXX XXXX XXXX, and prefers the pronouns she/her, which will be used throughout these reasons.
ALLEGATIONS
[3] The specifics of the claim are set out in detail in the claimant’s Basis of Claim form, BOC. The claimant identifies as a trans woman and fears Mexican society in general due to prevailing homophobic attitudes.
[4] Sexual orientation and gender identity and expression, SOGIESC guidelines, 9. The Chairperson’s Guideline 9, for SOGIESC persons were taken into account when considering the process of the hearing and the facts in this case. All relevant factors such as the social and cultural context in which the claimant found herself were examined with consideration of the Chairperson’s SOGIESC Guidelines.
DETERMINATION
[5] The Panel finds that the claimant is a Convention refugee pursuant to section 96 of IRPA, based upon her membership in a particular social group, persons identifying as transgender.
ANALYSIS
Identity
[6] The claimant’s personal identity and Mexican citizenship have been established on a balance of probabilities as per a certified true copy of her passport.
Credibility
[7] In assessing the credibility of evidence presented by the claimant, the Panel refers to the Federal Court of Appeal in Maldonado, wherein the court stated in part that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true, unless there be reason to doubt their truthfulness.
[8] The Panel found that the claimant provided testimony in a straightforward manner. The claimant provided substantive documentary evidence, and her mother attended the hearing via video conference from Mexico as a witness to testify to her experiences.
[9] Moreover, with regard to overall credibility and the credibility of the claimant’s subjective and objective fear of violence perpetrated against her, the Panel found that the claimant was succinct in all of her responses to questions posed to her by the Panel. In short, the Panel found the claimant to be a highly credible witness.
Objective Evidence
Country Conditions
[10] The Panel also considered the country conditions in Mexico for members of sexual minorities. The Panel notes that conservative attitudes prevail in Mexico and public displays of affection are not considered socially acceptable, as noted in Item 6.1 and 6.2 of the NDP for Mexico.
[11] The Department of State report provides the following information. Discrimination based on sexual orientation and gender identity was prevalent despite a gradual increase in public tolerance of LGBTI individuals, according to public opinion surveys.
[12] A CNDH poll conducted during the year found six (6) of every 10 members of the LGBTI community reported experiencing discrimination in the past year, and more than half suffered hate speech and physical aggression. In the independent documentary evidence, the following is stated.
[13] The 2016 Letra S, which is an LGBTQ non-governmental organization, published that 1,310 cases of killings of LGBTQ persons motivated by homophobia were committed in Mexico between 1995 and 2016. In the last 10 years, there have been 71 homicides a year on average.
[14] The previously referred to RIR indicates the following. The United Nations Special Rapporteur on extrajudicial or arbitrary executions noted the alarming pattern of grotesque homicides of lesbian, gay, bisexual, and transgender individuals, and the broad impunity for these crimes, sometimes with the suspected complicity of investigative authorities.
[15] According to the CAB, which is the Executive Commission of Attention to Victims, (speaking Spanish) report, trans women and homosexuals represent the group most affected by hate motivated physical assaults.
[16] A more updated RIR indicates a worsening situation of targeted violence against LGBTQ individuals throughout many regions of the country. In its annual report on extreme violence against sexual minorities, the organization Letra S, Aids Culture in Daily Life, indicated that more LGBT individuals were killed in 2017 and 2018 than in previous years, for reasons believed to be due to their real or perceived sexual or gender identity.
[17] The documentary evidence indicates that the claimant’s fear persecution for reasons of her sexual orientation is objectively well-founded.
State Protection
[18] With regard to state protection, the RIR indicates the following. The Supreme Court of Mexico — a Supreme Court of Justice of Mexico issued in 2014 a protocol for judges on the adjudication of cases involving sexual minorities. The protocol, while not legally binding, provides tools to assist judges to identify and eliminate stereotypes and social misconceptions during the decision-making process and ensure access to justice for sexual minorities. Sources indicate that despite special procedures and policies of institutions to protect sexual minorities, they do not necessarily effectively protect them in practice.
[19] According to sources, the judicial system is not effective in investigating crimes committed against sexual minorities. A researcher stated that if someone had been threatened by a gang, they can file a complaint with the judicial authorities. But that does not translate into any special protection unless they have already been victim of a crime and they have been threatened again. This is particularly problematic for LGBTQ persons who are at risk.
[20] The 2016 CAB (speaking Spanish) report indicates that there are low levels of reporting crimes. The researchers stated that less than 10 percent of crimes committed in Mexico are solved, and the case of homophobic crimes, even people who are found guilty are set free. According to a recent Department of State report, there were reports that the government did not always investigate and punish those complicit in abuses against sexual minorities. Furthermore, there is evidence that state actors have been and continue to be involved in forced disappearances and extrajudicial killings, adding to the reasons why LGBTQ persons would fear even approaching the state for protection.
[21] The Panel finds that the claimant’s testimony and the objective evidence presented demonstrate that adequate state protection would not be available to the claimant in Mexico.
Internal Flight Alternative, IFA
[22] During the hearing, the Panel proposed Puerto Vallarta and Mexico City as potential IFAs. In order to determine whether a viable IFA exists, the Panel must consider a two (2)-pronged test. The basis for this test is the cases of Rajaratnam and Thirunavukkarasu. The Board must be satisfied on a balance of probabilities that there is no serious possibility of the appellant, in this case, being persecuted in the part of the country to which it finds an IFA exists.
[23] Conditions in that part of the country considered to be an IFA must be such that it would not be unreasonable in all circumstances, including those particulars of the appellant for him or her to seek refuge there. Claimants bear the burden of proof to show that they face a serious possibility or reasonable chance of persecution in the entire country, and specifically in the potential IFA areas named.
[24] During the hearing and throughout the documentary evidence provided, the claimant testified that she feared homophobic persons in society, discrimination in the workplace, and random physical assaults throughout the country.
[25] Claimant’s statements about the police is supported by information contained in the NDP. One (1) Response to Information Request, RIR, states, according to US Country Reports 2016, civil society groups claim that the police routinely subjected LGBTI persons to mistreatment while in custody.
[26] The Panel notes that objective evidence indicates that in Puerto Vallarta and Mexico City, there is greater tolerance of sexual minorities, at least in select districts of the regions. Despite this evidence, the Panel finds that in the particular circumstances of the claimant, having considered all of her oral testimony, that the threat of harm to her would not be reduced to the extent that there would be no serious possibility that she would face persecution for reasons of her sexual orientation by her relocation to the proposed IFA locales.
[27] The Panel finds that under the particular circumstances of this case, country information indicates that trans women are frequently targeted in Mexico by state and civilian agents for serious harm — indicates that there is a serious possibility that this claimant would face persecution throughout Mexico. The claimant could not live openly as a trans woman in Puerto Vallarta or Mexico City without fear of attack from members of society.
[28] Further, the Panel finds that the claimant faces a serious possibility of persecution throughout Mexico. The Panel finds that it is unnecessary to make a determination on the second prong of the IFA test as to whether the claimant’s relocation there would be reasonable under all the circumstances.
[29] In the particular circumstances of this claimant, there is no viable internal fight alternative available to her in Mexico.
CONCLUSION
[30] Having considered all of the evidence, the Panel finds that there is a serious possibility that the claimant would face persecution in Mexico for reasons of her sexual orientation and belonging to the social group of transgender women. Therefore, the Panel finds that the claimant is a Convention refugee pursuant to section 96, and her claim for protection is accepted.
——— REASONS CONCLUDED ———