2023 RLLR 3

Citation: 2023 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: November 9, 2023
Panel: Katherine Whitelock
Counsel for the Claimant(s): Nicholas Woodward
Country: Mexico
RPD Number: TC0-06106
Associated RPD Number(s): TC0-06151
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: This a decision in the claims of XXXX XXXX XXXX XXXX, they — I will call the adult claimant, and XXXX XXXX XXXX XXXX, who I will call the minor claimant. The claimants are citizens of Mexico and seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, or IRPA. The adult claimant is the mother of the minor claimant and was appointed as designated representative.

[2]       I have considered and applied Chairperson’s Guideline 4, gender considerations in proceedings before the Immigration and Refugee Board, as well as Chairperson’s Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics in my analysis and the reasons.

DETERMINATION

[3]       I find the claimants are Convention refugees.

ALLEGATIONS

[4]       The facts and events alleged in support of the claim are certainly — are at the claimants’ Basis of Claim form and attached narrative as amended upon which both relied, at Exhibits 2.1, 5, 8, and 11.

Original Narrative

[5]       To summarize, the adult claimant appeared to be bisexual and originally raised the claim alongside her now former female partner, who I will call IB, whose claim was later disjoined from those of the present claimants. The adult claimant grew up in the states of Veracruz and Yucatan, surrounded by violence. Her mother, who I will call GB, was in a relationship with a former police officer and violent criminal, who I will call NR, who controlled a number of brothels and nightclubs in the city of Mérida, Yucatan. NR was rumored also to engage in narcotics and human trafficking.

[6]       The adult claimant was deprived of adequate schooling as GB left her to be watched by brothel clients while she worked. Finally, between the ages of 6 to 14, she was routinely sexually abused by NR, which GB denied or was too fearful of him to address at the time. The adult claimant’s grandmother, GR, took custody of her, and believing her reports of sexual abuse attempted to help her seek XXXX treatment in Veracruz. NR initially repeatedly attempted to pressure GB to take back custody, but GR refused. Approximately a year later, GB fled him to rejoin her mother and daughter in Laredo (ph).

[7]       From the age of 20, the adult claimant threw herself into her work as a means of informal therapy for the fear of men caused by these experiences. She had a very — really brief relationship with the minor claimant’s father in 2015. In XXXX 2017, she entered into a relationship with IB. IB affirmed the adult claimant early in the relationship that her own family were paying a regular extortion fee of XXXX XXXX XXXX pesos weekly to the local cell of the cartel Los Zetas. In early XXXX 2017, IB moved in with the claimants. Due to the expense of moving, she could not pay the full amount demanded by Los Zetas at the time and asked for lenience. The cartel operative collecting payments threatened, “Consequences”, which IB did not take seriously as he was a teenager.

[8]       On XXXX XXXX, 2017, the adult claimant was called by the minor claimant’s school, verifying if her brother could, in fact, pick the minor claimant up. As she has no brother, she rushed to the school to find the unknown man had already left on his assertion being scrutinized. She attempted to report the incident to police who rebuffed her, saying they could do nothing because the minor claimant was not actually hurt, and there was insufficient evidence to investigate. The next day, two (2) men came to the claimant’s business on a motorcycle, threatening them at gunpoint that they now owed an additional XXXX XXXX XXXX pesos weekly to the Zetas, swiftly warning IB the claimants would, “Pay the consequences if she did not comply.” One (1) of the cartel members also demeaned IB for, “Acting like a man”, calling her the slur matura, which is roughly analogous to pejorative use of the English term dyke, and said that she should be punished for it.

[9]       The claimants and IB moved a week later and gathered the demanded extortion fees, including seeking to borrow from IB’s aunt, AB. When the cartel operators arrived, AB says she was unable to pay, and they shot her before leaving her with further threats and homophobic slurs, referring to IB. AB survived, but was hospitalized, and later said that the Zetas had probably mistaken her for IB, as they have a similar appearance.

[10]     The claimants and IB attempted to relocate but found circumstances very hostile to them, as a lesbian couple, experiencing a great deal of discrimination in seeking housing and employment. They travelled to Canada mid-2019 and raised claims of refugee protection in early 2020.

First Amended Narrative

[11]     Following the disjoinder of IB from claimant’s claims, the adult claimant submitted a revised narrative in May 2023. It is broadly similar in dimensions, and so I will note only material changes or additions. These include — for the benefit of transcriptionist, please format these as bullet points. A, the adult claimant’s family was abandoned by her father, who was himself also a high-ranking member of an unnamed cartel. B, the adult claimant’s stepfather, NR, was also a cartel member. C, the adult claimant witnessed GB being abused by NR. D, NR extensively bribed law enforcement and prison officials in Veracruz, resulting in GB feeling it was impossible to report his abuse to authorities. E, NR began sexually abusing the adult claimant at the age of eight (8), not six (6) , and threatened that he would harm GB if she resisted. F, GR was deceased in 2021 of XXXX XXXX. G, while with NR in a vehicle traveling through the Mexican-Guatemalan border in 2007, GB and the adult claimant’s sister escaped him and were rescued by members of the Zapatista (ph) gang. H, the adult claimant’s first relationship with another woman was started the age of 17, and lasted for approximately five (5) years. I, the adult claimant’s relationship with IB was extremely difficult, as IB’s family was not accepting of her being a lesbian. IB’s family regularly harassed and threatened the adult claimant in a homophobic manner, demanding that she end the relationship. J, IB left Mexico for Canada in XXXX 2019. The adult claimant left Mexico on XXXX 2019, and briefly had to leave the minor claimant with GB because she could not afford his travel expenses. She returned to Mexico for a single day in XXXX 2019 to pick up the minor claimant, and both then departed for Canada.

[12]     There are also a number of allegations of inadequate representation on the part of the claimant’s former Counsel, Marcela Gonzalez Rodriguez and her staff, which I will address in a following section of my decision.

Second Amended Narrative

[13]     In October 2023, the claimant submitted a second amended narrative. Material information out of this version includes. A, the adult claimant was targeted for harassment and violence by her peers as a team, including physical assault, which caused her become XXXX and XXXX XXXX XXXX XXXX XXXX. B, the adult claimant’s first relationship with a woman, who I will call TJ, was a surreptitious one (1) because her partner was not out to her family. That relationship ended when she learned that TJ was unfaithful to her. C, the adult claimant’s second relationship with a woman, who I will call CD, lasted approximately one (1) year, and also ended due to extreme opposition from the partner’s family, as well as, again, cheating on her. D, the adult claimant’s relationship with IB started in 2018, not 2017. And IB’s father once assaulted the adult claimant. The two (2) attempted to report this to authorities, who took no action. E, IB’s aunt continues to stay — live in hiding. F, the adult claimant and IB did not experience discrimination while they were in Mérida as they were present there only temporarily for less than one (1) month. Rather, the experience of hostility towards them as a same-gender couple, such as regards to rental housing, occurred while they were residing in Veracruz.

Third Amended Narrative

[14]     Immediately prior to the scheduled hearing date in November 2023, the adult claimant submitted another amended narrative. The only change made was to indicate that, upon reflection, since she has resided in Canada, she now identifies solely as a lesbian, and that she had not felt free or capable in Mexico to express lacking any attraction to men.

Administrative Issues

[15]     As noted above, the claimants and IB originally claimed together. All were represented by former Counsel Marcela Gonzalez Rodriguez, upon filing their claims in 2020. The adult claimant’s and IB’s relationship later broke down, in the manner of this — noted in correspondence to have result of a number of police visits to their home in Canada, and this disjoinder was granted upon application of Counsel in July 2023.

[16]     (inaudible) several paragraphs, the claimants made a narrative of May 2023, prepared with the assistance of second Counsel, Zulaikha Gonzalez Perez (ph), make a number of allegations about former Counsel Marcela Gonzalez Rodriguez. Specifically, A, the adult claimant was advised by a person, who I will call RB, who worked with the former Counsel, and to whom the claimants provided their narrative in Spanish. B, former Counsel made changes to this narrative without the claimants’ knowledge, and this version was not read back to them. They learned only upon the English version being translated back into Spanish after retaining later Counsel what had been said. C, former Counsel provided the claimants with two (2), “False addresses”, at which to receive correspondence, for which they were charged 200 dollars Canadian,  monthly. D, the claimants did not fill out the original BOCs themselves, but signed a blank version of former Counsel’s direction, which former Counsel then filled with the assistance of her husband as translator, although the translator signature on the BOC is that of another person, who I will call AX.

[17]     The second Counsel was retained by the claimants on May 3rd, 2023, and wrote former Council, ceasing the division. Second Council advised former Council the number of items in the original narrative were incorrect. And further, she reported the adult claimant did not provide any of the incorrect information. She then requested further details of former Counsel’s procedures in preparing refugee claims, as well as confirmation of whether the translator used was AX, or a family member of former Counsel.

[18]     Former Counsel replied on May 22nd, 2023, stating the following. A, the adult claimant informed former Counsel on July 14th, 2022, that she had retained new Counsel due to the breakdown of her relationship with IB. Former Counsel informed the claimants and IB that she could not represent any of them. B, during that Counsel — during that meeting, former Counsel gave the claimants their files, and they reviewed the documents with her, and agreed their file was complete, including, “A translated version from English to Spanish of their narrative.” C, former Counsel was, “Not surprised”, to receive these allegations as she asserts the adult claimant, “Threatened to do so”, if she did not have IB’s claims severed and also withdrew from representing IB, but continued to represent herself and her son. Former Counsel also maintained the claimants and IB, at that time, that she could not have, “Have preferences for any of the claimants”, and that it was in everyone’s best interest for her to withdraw. D, the former Counsel denied the claimants had been given blank BOCs to sign, arguing that since the contents of the pages prior to the signature page were obviously filled out by computer, that was “Impossible”. E, former Counsel maintained AX was the only translator used by her office in the claimants’ files, that all translation was performed by AX, and that the adult claimant had wrongly assumed him to be former Counsel’s husband. F, the claimants did not fill out the original BOC themselves, but signed a blank version at former Counsel discretion — direction, which former Counsel then filled out with the assistance — translator. G, former Counsel has provided IB’s original handwritten Spanish narrative, as well as Spanish language print drafts and the adult claimant’s narrative from (inaudible)’s files. She pointed out that nothing was mentioned about the cartel Jalisco Nuevo Generacion, or CGNG (sic), and further questioned how NR could logically have been involved with CGNG, as was briefly mentioned at one (1) point in her narrative, when the adult claimant was a child in the late 1990s, as it did not exist until 2010.

[19]     I observed that in her reply, former Counsel did not provide a handwritten draft of the adult claimant’s narrative on which she found her conclusion the adult claimant never mentioned the CGNG. She also did not reply to the adult claimant’s allegations relating to RB, and the “False addresses” service, but cannot be faulted for that as those points were not raised by Ms. XXXX XXXX. I note other that — I note also that other administrative correspondence in the file includes a letter from former Counsel dated October 25th, 2022, in which she previously recounted the meeting of July 1422, in largely the same terms as her reply of May 22nd, 2023, but the description of her reason for recusal differs.

[20]     Specifically, former Counsel stated that, “There has been a breakdown in Counsel client confidence given the abuse of treatment over phone calls and messages” by one (1) of the claimants, and indicated that at that time in October 2022, she had already decided to withdraw. I commend the second Counsel, Ms. XXXX XXXX, for proactively, comprehensively taking these steps specified in the practice notice allegations against former Counsel. In my experience as a Member of this Division, I have observed that very few Counsels are even aware of it, and others simply refuse to adhere to its very clearly stated mandatory requirements.

[21]     I have reviewed the previous drafts and narrative provided by former Counsel, and while I am not conversant with Spanish language, I am capable of scanning Spanish text for the phrases Los Zetas, or Cartel de Jalisco Nueva Generacion, or the acronym CGNG, and find no instances of those appearing.

[22]     I questioned the adult claimant on these points. She reiterated that Ms. XXXX XXXX had been unreachable and exploitative, and specifically testified that she had requested a copy of her file from former Counsel’s office, which was refused, contrary to the reply letter. She also denied ever making threats against former Counsel, relating that she and IB were in fact treated very badly, yelled at, and thrown out of her office at one (1) point.

[23]     On a balance of probabilities, I believe it is likely that many of these points of conflict were the result of poor communication for Ms. XXXX XXXX. It is difficult for me to positively conclude on the evidence before me that she intentionally sought to harm the claimant. But at the same time, I consider more likely than not that her reply letter is not a reliable account of events. This is a consideration of its peculiarly defensive, and sometimes unprofessional tone, irrelevant invocations of other Counsel she has worked with in the past as assertions of her good character, and with regard to the reasons for and timing of her withdrawal from the file, conflicts with the information that Ms. XXXX regards herself provided in previous communications as division. As such, I do find on a balance of probabilities that former Counsel did not provide adequate representation to the claimants and IB during the period in which she represented them in their refugee claims.

ANALYSIS

Identity

[24]     I am satisfied on a balance of probabilities the claimants’ personal identities and Mexican nationality were established based on copies of their passports, in Exhibit 1 in the adult claimant’s testimony.

Nexus

[25]     As noted above, the adult claimant’s narrative, as (inaudible) corrected after disjoinder from IB’s claim, indicates that she fears persecution as a lesbian, particularly from cartel members with a history of targeting IB’s family for threats and extortion. I am satisfied this scenario would clearly constitute being targeted as a member of particular social groups on the intersectional basis of both gender and sexual orientation. As for the minor claimant, per courts in Asghar and Gonzalez, where the primary alleged victim in persecution is a nexus to Convention, a derivative claim based on familial connection, “Related to discrimination of fundamental human rights”, can have nexus on the basis of being a member of particular social group as immediate family.

[26]     Accordingly, this scenario would constitute a nexus to Convention on that ground for the minor claimant, who Claimant alleges would be similarly targeted for violent retribution or, for instance, kidnapping, as for some. I have therefore assessed the allegations under both sections 96 and 97(1)(b) of the IRPA.

Credibility

[27]     Per the case of Maldonado, when a claimant swears that certain facts are true, this creates presumption they are true unless there is a valid reason to doubt their truthfulness. As noted above, I have also considered and applied Guideline 4 on gender considerations for submissions before the IRB, which offers guidance with respect to applying a trauma-informed approach to proceedings. The Guidelines note that an individual has experienced trauma may have certain difficulties in presenting their case, including recalling specific times, dates, and locations, recounting events in chronological order, and recalling certain events in full. I drew upon this to advise the claimant that she need not proactively volunteer particularly upsetting or traumatic information if I did not specifically question her on those points.

[28]     Guideline 9 similarly advises on the challenges of SOGIESC individuals and establishing their SOGIESC entity, noting that testimony may be the only evidence upon which they can draw where other forms of corroborative evidence are not reasonably available. However, in any event, I consider the adult claimant testified in a clear, straightforward, spontaneous manner, and that her testimony was consistent with the great deal of documentary evidence before me. She was able to speak candidly and coherently about her various relationships with women. Accordingly, on a balance of probabilities, I find the adult claimant was a credible witness as to her experiences of being a lesbian, and also being the repeated target of homophobic discrimination and violence because of her identity.

[29]     While I was initially concerned about some inconsistencies that appeared between the initial and subsequent versions of the adult claimant’s narrative, I accept the inadequate representation she received from former Counsel and interpersonal conflicts with her former partner, IB, that resulted in the end of their relationship and disjoinder of their refugee claims, collectively, adequately, explain these factors. The claimants also provided personal documentation in support of the allegations as they were noted above, at Exhibit 8. These include civil documents, such as indicating the minor claimant has no legally reported father, and several items regarding the minor claimant’s difficulties in school in Toronto.

[30]     Far more significantly, there are a large number of support letters. One (1) letter is dated October 17th, 2023, from a Toronto area interpreter, who I will call AA. AA reports that she has assisted the adult claimant a number of times in accessing services, and dealing with her landlord, and the minor claimant’s school, as well as attesting to witnessing her previous relationship with IB, and membership in a Toronto area Latin LGBTQ2+ group, XXXX. Three (3) more letters dated in June And July 2023 come from organizers of that group, and a fellow member, who confirm the adult claimant’s participation in activities, as well as giving generic statements about her good character. There are also attached a large number of photos of the adult claimant taking part in activities with other members of the group throughout 2020 to 2023.

[31]     Several other letters come from other Mexican nationals who — Mexican claim with the — who the adult claimant has assisted in Canada, likewise praising her character. Other letters originate in Mexico and are accompanied by copies of the author’s Mexican electoral ID cards. Several of these are from transcribed — little specific information about the claimants’ experiences, and so I will not delve into those in-depth.

[32]     Of the letters that are relevant, the first is from a friend, who I will call EY, in Veracruz, who is the minor claimant’s godfather, dated May 31st, 2023. EY reports witnessing the adult claimant and IB being threatened by IB’s, ex-partner and family, and as a gay man attests to his own experiences of discrimination and violence on that basis in Mexico. The second of these letters is from another friend, CC, from Veracruz, and dated May 28th, 2023. CC reports witnessing the adult claims relationship with TJ, and attests to TJ’s family making threats and committing acts of violence against the adult claimant. The third letter is from the adult claimant’s mother, GB, dated June 9th, 2023. GB recounts the events of her own very traumatic life and corroborates the adult claimant’s allegations about NR in great detail, including specific information about NR’s various criminal enterprises, dates of arrest, and imprisonment. She reiterates that NR’s behaviour is erratic and violent, particularly when intoxicated, which he frequently is. Fourth letter is from TJ, and dated June 28th, 2023. While brief and somewhat vague, TJ concedes that their approximately four (4)-year relationship was a rocky one (1), and wishes the claimants well in Canada. The fifth letter is from CD, dated September 5th, 2023. She discusses in some detail how she and the adult claimant met and entered into their one (1)-year relationship, and admits and regrets her infidelity. Likewise, wishing the claimants well in Canada. Finally, Exhibit 10 includes also a XXXX’s report from XXXX XXXX XXXX XXXX of North York, which discusses the XXXX the client has sought for her reported trauma and XXXX symptoms. It urges that I allow any accommodation request by the adult claimant during the hearing process.

[33]     I have no concerns with the credibility or reliability of any of these documents in particular. In conjunction with the claimant’s testimony, I find it credibly established that she is a lesbian who has various — engaged in various relationships with men and women in the past, who has been abused by her stepfather, NR, who is a violent and potentially influential criminal, and targeted for homophobic harassment and violence by other persons in Mexico, including the families of her other partners, cartel operatives, and random persons on the street. Taking into account the advisories of Guideline 9 with regards to evidence in SOGIESC claims, I am satisfied on a balance of probabilities the adult claimant has credibly established subjectively well-founded fear of persecution on the basis of both gender and sexual orientation.

Objective Basis

[34]     Under this heading, I turn first to NDP document 2.1, the Mexico human rights report, which notes that according to the Human Rights Commission, in the first eight (8) months of 2021, there were at least 50 hate crime homicides committed against the LGBTQIA+ community. There are reports the government did not always investigate and punish those complicit in the abuses. Polling in 2019 found that six (6) out of 10 LGBTIA respondents reported experiencing discrimination in the past 12 months, and more than half were subjected to hate speech and physical aggression. According to the Freedom in the World 2022 Index put out by the organization, Freedom House, and Item 2.8 of the NDP, Mexico putatively has strong legal protections for LGBTQ+ people, but these are not uniformly enforced, and may vary wildly depending on the attitudes of individual authorities.

[35]     Similarly, the Inter-American Commission on Human Rights, in a report on Mexico at Item 2.10 of the NDP, found that while 25 states have enacted discrimination protections for LGBTIA persons, and a number of states now permit equal marriage, over half of LGBTI persons surveyed reported they experience discrimination in schools, workplaces and 39 percent reported being the victim of aggression committed by agents of the state.

[36]     Item 6.2 was a response to information request concerning the situation of gender and sexual minorities in states of Yucatan and Nuevo Leon, and states that, according to sources, machismo is very much still embedded in Mexican culture, which increases homophobia and discrimination against sexual minorities. The same indicates that while there have — the document indicates that while there have been a number of changes in legislative-judicial health matters, the social situation in Mexico has changed very little, and violence discrimination are still very much present in society. Most sexual minorities have experienced acts of physical violence or harassment because of their orientation or gender identity.

[37]     Per Item 6.4, another Response to Information Request on the situation of sexual minorities in Mexico City, reporting by the UK’s Guardian newspaper found rights of LGBTI people are still treated as exceptions to be granted at the discretion of local officials. According to United States country reports, cited in the same document, civil society groups claim that police routinely subjected LGBTI persons to mistreatment while in custody, even in supposedly, “Gay-friendly” zones of the country and large cities. There may be gay clubs and bars, but there are also still, “Police officers that look for any way to intimidate and extort couples wherever they are.”

[38]     With regards to being targeted for violence based on gender more broadly, NDP document 2.2 says that during 2023, 3,752 killings of women were reported, 969 of which were investigated as femicides. Calls to the 911 — emergency line report instances of violence against women rose during the year, with over 260,000 calls. Item 5.6 blames an increasing level of arbitrary violence, as well as the fact that men targeting women are often granted effective impunity by Mexico’s judicial system. The likelihood of perpetrators being brought to justice is very low, regardless of circumstances or evidence, and it is reported that municipal authorities have often covered up and facilitated violence against women by refusing to conduct adequate investigations.

[39]     Document 5.10 further indicates that the inefficiency of the judiciary discourages many women from either making an initial complaint or going through the process. Sometimes these are due to institutions having an overload of work; other times, because of a lack of training; and many other times is because the institutional changes themselves share these traditional and macho values.

[40]     Further, within that document, The New York Times reports that law enforcement officials, authorities can be passive, complicit, or–  and sometimes actively abusive towards women who try to report violence they experience. Such attitudes are pervasive throughout society, with even President Andres Manuel Lopez Obrador, popularly known as Amlo, consistently denying the extent of the problem and declaring against all evidence that “Mexican women have never been as protected as now”, per document 4.6. He has similarly publicly claimed, per document 5.6, that 90 percent of all 911 calls concerning gender-based violence are false.

[41]     The claimants also disclosed several news items in their disclosure, which are reflective of these observations, reporting on police harassment of LGBTQ+ couples in public, and violence against women in the LGBTQ+ people, particularly lesbians and bisexual women, targeted private individuals, activists, leaders, and community institutions. I accept these as credibly reinforcing that such persecution is pervasive and widespread. Taking all this information into account, I am satisfied also that the claimants have established a well-founded, objective fear of persecution in Mexico on the basis of both gender and sexual orientation for the adult claimant, and as a member of her immediate family for the minor claimant.

State Protection/Internal State Alternative

[42]     While there is presumption that states can protect their own citizens except in a state of complete breakdown, that resumption has been rebutted with clear and convincing evidence, given the state’s inability or unwillingness to protect its citizens. Taking into account the event evidence I have reviewed previously under the heading of objective basis, I considered credibly established that Mexican authorities are unwilling or unable to protect women or LGBTQ+ persons generally. I have also accepted as credible that, as the claimant reported, she and IB did attempt to report homophobic violence directed against her by IB’s father, and authorities simply did nothing. Indeed, given the ponderance of the documentary evidence in the NDP regarding police corruption and the accountability in reforming of police officers, I find on a balance of probabilities that it was reasonable for the claimants to decide it would be pointless to further seek state protection. This is fully consistent with country conditions, suggesting that interactions between the LGBTQI+ individuals in police result in police portraying further violence or harassment.

[43]     Given this and the prevalence of attitudes towards LGBTQI+ persons from Mexico, I find similarly, on a balance of probabilities that the claimants would have no viable IFA. As I noted above, not even supposedly, “Gay-friendly” neighborhoods of major cities are reliably safe to simply live one’s life. The Rasaratnam test would thereby fail on the first prong, as a serious possibility of persecution would exist throughout the country.

CONCLUSION

[44]     Based on the tally of evidence before me, I find the plaintiffs have established subjectively and objectively well-founded fear of persecution as a member of intersecting particular social groups in Mexico. On a forward-looking basis, there is a serious possibility they would face further violence and/or discrimination amounting to persecution if they returned. Further, country conditions established they would have no resort to adequate state protection nor a viable IFA. These claims are therefore accepted.

——— REASONS CONCLUDED ———