2023 RLLR 21

Citation: 2023 RLLR 21
Tribunal: Refugee Protection Division
Date of Decision: December 15, 2023
Panel: Christine Medycky
Counsel for the Claimant(s): John Rokakis
Country: Mexico
RPD Number: TC3-33995
Associated RPD Numbers): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A    

 

REASONS FOR DECISION

 

INTRODUCTION

 

[1]       The claimant, XXXX XXXX XXXX XXXX, alleges to be a citizen of Mexico and is seeking refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act.[1]

 

[2]       The panel has considered and applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity, and Sex Characteristics (SOGIESC).[2]  At the commencement of the hearing, the panel asked the claimant, who identifies as a transgender woman, how they would like to be referred to.  The claimant responded as XXXX or by she or her.  In its decision therefore, the panel refers to the claimant according to her preferences.

 

ALLEGATIONS 

 

[3]       The details of the allegations of persecution are fully set out in the claimant’s Basis of Claim (BOC).[3]   To summarize, the claimant alleges a fear of persecution at the hands of her father and stepmother, and Mexican society in general due to membership in a particular social group, namely transgender women in Mexico. She also fears a woman called XXXX who tried to force the claimant into the illicit drug trade.  The claimant states that neither state protection, nor an internal flight alternative exist for her in Mexico.  The specifics of her allegations are as follows.

 

[4]       The claimant is from the city of Huimanguillo, Tabasco State, Mexico, and self-identifies as a transgender woman by the name of XXXX.  XXXX testified that growing up her family life was chaotic.  Her biological parents were not married; her father had another family and was frequently absent, and her mother passed away from XXXX in 2003, when the claimant was only 9 years old.  After her mother’s death, the claimant went to live with her father and stepmother but was mistreated.

 

[5]       The claimant testified that while she was a male assigned at birth, she realized at 13 that she enjoyed dressing like a girl and putting on makeup.  At 16, she would go out to bars with other transgender females whom she befriended.  The claimant recounted that her family found out she dressed like a girl and that their reaction was mostly negative, in particular her father and stepmother, who were physically and verbally abusive.

[6]       The claimant stated that she faced discrimination from Mexican society in general, which made it difficult for her to find work and support herself and personally experienced violence due to her transgender identity.

 

[7]       The claimant recounted that she XXXX XXXX in Mexico.  When she worked, she had some medical insurance and therefore could afford her medication, but when she did not, it was more difficult for her to get proper medical care.

 

[8]       The claimant stated that a woman called XXXX tried to lure her to sell drugs, but she refused.  XXXX was persistent and the claimant feared her, as she appeared to have connection to some cartel.

 

[9]       Given the conditions for transgender women in Mexico and XXXX’s insistence that the claimant sell drugs, the claimant fled Mexico on XXXX XXXX, 2022, arriving in Canada the same day.  After speaking to people in the LGBTQ+ community the claimant learned that she could apply for refugee protection in Canada and filed on August 19, 2023.

 

DETERMINATION 

 

[10]     The panel finds that the claimant is a Convention refugee, having established a serious possibility of persecution in Mexico based on the ground of membership in a particular social group, namely transgender women in Mexico.

 

ANALYSIS

 

[11]     In making its assessment, the panel has considered all the evidence, including the claimant’s testimony, the submitted written evidence,[4] and the objective country conditions documentation.[5]  The panel was also mindful of the difficulties faced by refugee claimants in establishing their claim, including the difficulties inherent in providing testimony through an interpreter, nervousness, past trauma, cultural and social factors, the claimant’s age and educational background, the unfamiliar hearing environment, and the high-stakes nature of refugee proceedings. 

 

Nexus

 

[12]     As the claimant alleges a fear of persecution on one of the Convention grounds, her refugee claim was assessed under s. 96 of the IRPA.

 

Identity 

 

[13]     The claimant’s national and personal identities have been established, on a balance of probabilities, her Mexican passport, a certified true copy of which was provided by the Minister.[6] 

 

Credibility

 

[14]     When a claimant swears that certain facts are true, this creates a presumption that they are true, unless there is valid reason to doubt their veracity.[7]  The panel however is entitled to draw negative inferences based on inconsistencies, contradictions, or omissions in a claimant’s evidence.  The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.  The courts have held that a lack of evidence corroborating important aspects of the claim may undermine a claimant’s credibility.[8]  The Maldonado presumption however does not apply to inferences, conclusions a claimant may draw from the facts, or speculation regarding future events, nor to fears that are not sufficiently supported by the objective evidence.[9]

 

[15]     The panel finds the claimant overall to be a credible and trustworthy witness.  She testified in a spontaneous, direct, and consistent manner.  She was able to recount her journey of self-discovery and describe her family’s reaction and Mexican society’s attitude in general towards transgender women.  She gave very specific examples of the discrimination and violence she experienced in Mexico due to her identity, more specifically, how she could not get a job unless she dressed as a man and how when she went out with her friends at night people would shout obscenities at them, throw alcohol bottles at them and even try to run them off the road.  One time at a night club a man proposed that she go with him for a ride, but when she refused, he grabbed her by her hair and dragged her into his vehicle.  The claimant managed to escape, but the incident traumatized her.  The claimant said she did not approach the police for help because the people who were to support them also discriminated against them. 

 

[16]     There were no discrepancies, omissions or contradictions between the claimant’s oral and written evidence and the objective country conditions documentation that went to the heart of her claim.

 

[17]     In support of her allegations, that claimant provided numerous documents,[10] including:

 

  • A letter from a doctor at the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Toronto, dated November 23, 2023, which confirms that the claimant XXXX XXXX before arriving in Canada, is on XXXX medications and attends the clinic for ongoing XXXX management.
  • A letter of support from a community caseworker at the XXXX XXXX XXXX XXXX XXXX attesting to the claimant being a transgender woman with XXXX.
  • A letter signed by the Chairwoman of XXXX, a nonprofit organization for the Latinx LGBTQ+ community stating that the claimant is a trans community member of XXXX.
  • Social media post made by the claimant in Mexico dressed as a woman and with other transgender women.

 

[18]     The panel finds these documents to be relevant, reliable, and probative and therefore assigns them full weight.

 

[19]     Based on the totality of the evidence, the panel finds the claimant’s allegations to be true.  She has established on a balance of probabilities her subjective fear of persecution due to her membership in a particular social group, namely transgender women in Mexico, if returned to Mexico.  The claimant’s subjective fear is supported by the objective documentary evidence as follows.

 

Objective basis

 

[20]     The objective sources in the National Documentation Package for Mexico[11] and the country conditions documentation report that “between 2019-2022, sexual minorities suffered 305 reported violent acts motivated by hate including murders, disappearances, attempted murders, and suicides.”  According to the National Observatory of Hate Crimes Against the LGBTQ+ Persons in Mexico, Mexico places second after Brazil for the number of hate crimes against LGBTQ+ persons in Latin America.  The violence is attributed to Mexico’s sociocultural context, to some religious groups and to the increase in hate speech, including among politicians.[12]

 

[21]     Transgender women in particular are at risk: on September 30, 2016, Paola Buenrostro, a transgender woman and sex worker in Mexico City, was found murdered a few blocks from where she usually worked. Outraged by her friend’s murder, Kenya Cuevas— another transgender woman and sex worker—filed a complaint with the Mexico City Human Rights Commission, sparking anonymous threats of violence against her.12 In June 2019, almost three years after Paola’s murder, the Human Rights Commission issued a recommendation that all murders committed against transgender women be registered as “transfemicide”.[13]

 

[22]     Having assessed all the evidence, and the claimant’s the panel finds, on a balance of probabilities, that the claimant has established a well-founded fear of persecution, due to his membership in a particular social group, namely transgender women in Mexico, if returned to Mexico.

 

State Protection

 

[23]     States are presumed to be capable of protecting their citizens, except in situations where the country is in a complete breakdown.  To rebut this presumption, the claimant must provide clear and convincing evidence that the state is unwilling or unable to protect its citizens.  A claimant is required to approach the state for protection if protection might reasonable be forthcoming.  However, a claimant is not required to risk their life merely to demonstrate that adequate state protection is available.

 

[24]     The IRB’s Response to Information Request, dated 2 April 2022, entitled “Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation,” states that same-sex sexual relations are not criminalized in Mexico, Article 1 of the Constitution prohibits discrimination motivated by ethnic or national origin, gender, age, disabilities, social status, conditions of health, religion, opinions, preferences, civil estate or any other that infringes on human dignity.  Article 11 recognizes and protects the rights of lesbian, gay, bisexual, transgender, transvestite, transsexual and intersex persons to live a life free of violence and discrimination and requires the authorities to establish public policies and adopt the necessary measures to address and eradicate behaviors, and attitudes of exclusion or discrimination based on sexual orientation, sexual preference, gender identity, gender expression or sexual characteristics.[14] 

[25]     The Federal Law to Prevent and Eliminate Discrimination also prohibits amongst other grounds discrimination based on sexual preferences.[15]  

 

[26]     While the Organization for Economic Co-operation and Development (OECD)  indicates that Mexico “performs well regarding the protection of LGBTI people against discrimination and violence, and the progress made by Mexico has been more modest regarding legal provisions addressing barriers to the inclusion of same-sex couples and transgender individuals more specifically”, Noticias Telemundo, an international broadcaster, reports that [translation] “only 14” states in Mexico “consider hate crimes due to ‘sexual orientation’ as an aggravating factor” in case of homicide, “but the Mexican Treatment of individuals based on their sexual orientation, gender identity and expression,… 6/35 MEX200969.E 7 Federal Criminal Code still does not include it, nor does it mention the term ‘gender identity'” (Noticias Telemundo 17 May 2021). Similarly, Freedom House notes that while LGBT+ individuals “have strong legal protections,” “they are not uniformly enforced” (Freedom House 3 Mar. 2021, Sec. F4). The US Department of State’s Country Reports on Human Rights Practices for 2020 notes that “[t]here were reports the government did not always investigate and punish those complicit in abuses” against LGBTI individuals, “especially outside of Mexico City” (US 30 Mar. 2021, 36). In correspondence with the Research Directorate, a lawyer from Identity, Diversity, Legality (IDL), a legal bureau that specializes in SOGIESC matters in Mexico (IDL n.d.a), noted that [translation] “progress regarding sexual diversity has been slow” and the issue considered “taboo,” meaning that it is “absent in the legislative and executive agendas” (IDL 23 Feb. 2022).[16]

 

[27]     The International Lesbian, Gay, Bisexual, Trans, and Intersex Association (ILGA World) reports that “[t]here are no provisions aggravating penalties for crimes motivated by the victim’s sexual orientation at the federal level”.

 

[28]     The UN Special Rapporteur on Extrajudicial or Arbitrary Exécutions noted “the alarming pattern of grotesque homicides of lesbians, gay, bisexual and transgender individuals and the broad impunity for these crimes, sometimes with the suspected complicity of investigative authorities.”[17]

 

[29]     According to the Capital Rainbow Refuge report,“most hate crimes against the LGBT community go uninvestigated. In many instances, police dismiss investigations of homophobic and transphobic murders by categorizing them as ‘crimes of passion’.”119 Hate crimes against LGBT individuals are also most often not acknowledged or typified by state officials, which negatively impacts national statistics and responses to LGBT-targeted violence. 120 Less than 3% of the killings of LGBT individuals have resulted in convictions in Mexico since 2013.”[18]

 

[30]     To conclude the panel finds, that the presumption of state protection has been rebutted with clear and convince evidence; the state is unable to provide the claimant with adequate protection at the operational level and it would be objectively unreasonable for her to seek it.

 

Internal Flight Alternative

 

[31]     The panel considered whether a viable internal flight alternative exists for the claimant in Mexico City.   Having considered the country conditions and all the circumstances of this case, including those particular to the claimant, the panel finds that the claimant has no viable internal flight alternative in Mexico.  Societal attitudes against sexual minorities including transgender women are prevalent throughout the country. The NDP for Mexico notes that discrimination based on sexual orientation and gender identity continues to be a structural phenomenon with extensive social roots, and it “occurs on a daily basis, at multiple levels in family, work and institutional environments.”[19] Therefore, the claimant would face a serious possibility of persecution based on being a transgender woman if returned to Mexico. There is no place in her country of origin where she would be safe.  

 

CONCLUSION

 

[32]     For the foregoing reasons, the panel finds, on a balance of probabilities, that the claimant, XXXX XXXX XXXX XXXX, faces a serious possibility of persecution on the ground of his membership in a particular social group namely transgender women in Mexico, if returned to Mexico.  Therefore, the panel concludes that the claimant is a Convention refugee and the claimant’s application for refugee protection in Canada is accepted.  

 

 

(signed) Christine Medycky

 

December 15, 2023

 

 

 

[1] Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended.

 

[2] Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, May 1, 2017 (revised in December 2021, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.

 

[3] Exhibit 2. 

 

[4] Exhibit 5.

 

[5] Exhibit 3, 5.

 

[6] Exhibit 1, 4.

 

[7] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).

 

[8] (Toora v. Canada (Minister of Citizenship and Immigration), 2006 FC 828, [2006] F.C.J. No. 1057 (QL), at para. 45).

 

[9] Araya Atencio v Canada (Minister of Citizenship and Immigration), 2006 FC 571 at paras 8-10.

 

[10] Exhibit 5.

 

[11] Exhibit 3.

 

[12] Exhibit 5.

 

[13] Exhibit 3, Item 6.3, Exhibit 5.

 

[14] Exhibit 3, Item 6.2, Exhibit 5.

 

[15] Ibid.

 

[16] Ibid.

 

[17] Exhibit 3, Item 6.1, Exhibit 5.

 

[18] Exhibit 6.4, Exhibit 5.

 

[19] Exhibit 3, Item 6.2, Exhibit 5.