2023 RLLR 31
Citation: 2023 RLLR 31
Tribunal: Refugee Protection Division
Date of Decision: January 10, 2023
Panel: J. Eberhard
Counsel for the Claimant(s): Johnathan Hidalgo Pinargote
Country: Mexico
RPD Number: TC2-22417
Associated RPD Number(s): TC2-19304
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision of file number TC2-22417. I have had an opportunity to examine the evidence before me, and as I explained to you when we were still together, I have decided to accept your claims. This is the fuller that is a supplement to the information that I already gave you when we were together. The claimants, XXXX XXXX XXXX, who is the principal claimant, and her adult daughter XXXX XXXX XXXX, claim to be citizens of Mexico and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I find that you are Convention refugees because you have established that you face a serious profitability of persecution in Mexico on two (2) intersecting nexus grounds, namely religion and membership in a particular social group, specifically women facing gender-based persecution.
[2] In deciding your claims, I have taken into account the Chairperson’s guidelines on gender considerations in proceedings before the Immigration and Refugee Board, otherwise called the gender guidelines. The details of your claims are set out in your Basis of Claim forms dated 12 December 2021, which is in Exhibits 2.1 and 2.2. In short, you fear forward-facing religious and gender-based persecution in Mexico because you have experienced discrimination, harassment, violence including sexual assault, and threats to your lives. You fear a family member, in particular, because he has threatened to kill you. He is a XXXX XXXX. You also fear community members who find your religious faith offensive and express themselves through violent. You, the principal claimant, converted from Catholicism to Islam in 2012. Your daughter followed your example shortly thereafter. You were both inspired by the spiritual aspects of your faith, which you express through prayer and by choosing to wear a veil and other dress that reflects your relationship with God.
[3] In XXXX 2015, the discrimination that you had both faced worsened when the younger claimant was violated at school by classmates. Following this targeted attack, you, the younger claimant, left school for a long period, preferring to study online. While you reported the incident to the principal, the principal was not helpful, and you were discouraged from seeking any assistance from state authorities, including because of retaliation that you would face if you did so. You were together when, in XXXX 2018, you faced another violent attack, this time by several armed men who pointed guns at you and threatened to kill you. At the time, you were travelling to a religious gathering with another woman and her young daughters in a car, alongside a bus of fellow believers. While the attack was de-escalated, you were terrified. You decided at this time to leave Mexico permanently. In the interim, you had both feared threatened kidnapping by harassing callers. Specifically, the callers would phone the principal claimant and indicate that they had kidnapped up the younger claimant and attempted to extort money for her return. You finally fled Mexico together on XXXX XXXX 2020, XXXX before the spread of COVID-19. You sought protection as soon as possible following efforts to find a lawyer and make your claim in the global pandemic context.
[4] You have established your identities as nationals of Mexico on a balance of probabilities by your testimony and the copies of your passports, which are in Exhibits 1 and 4. You are both only citizens of Mexico and of no other country. Because of the principal claimant’s marriage in Canada to a man who may have citizenship in the Netherlands, I asked you related questions about any status you may have there. Based on the totality of evidence before me, including your testimony and the citizenship provision set out in the National Documentation Package on the Netherlands in section 3, particularly Items 3.1 and 3.6, I find that neither of you has, or has access to, any citizenship or residency status in the Netherlands. The NDP for the Netherlands is Exhibit 3.1.
[5] I find you both to be very credible witnesses, and I believe what you have alleged in support of your claims. Your testimony was straightforward, natural, detailed, and responsive to all of my questions, and there were no material inconsistencies between your testimony and the other evidence before me that you did not satisfactorily explain. In particular, I accept your explanations for why you delayed leaving Mexico until you were able to afford doing so. I also accept your explanations for why you delayed making your claim despite the documented efforts — of your efforts to seek protection very soon after you arrived in XXXX 2020. Specifically, the Board and many lawyers’ offices closed within XXXX XXXX of your arrival to Canada and remained closed for several months. Your personal documents, primarily in Exhibit 5, are consistent in content and chronology, with your account of the circumstances that called you to fear — caused you to fear religious and gender-based persecution in Mexico, particularly as a family of two (2) Muslim women.
[6] I especially note in Exhibit 5 the three (3) sets of correspondence and related support letters written on your behalf by other women who witnessed your faith and your fear in Mexico, including during the XXXX 2018 attack when your lives were threatened by armed men while you travelled to a religious gathering. At the time, you were wearing recognizably Muslim dress, including veils on your head. I also note the reluctance by one (1) of the authors of these letters in Exhibit 5 to provide her identification because of her own fear in Mexico as a Muslim woman. Also among this package of documents and evident is evidence of your efforts to seek protection in Canada, and to secure a lawyer as early as XXXX 2020, shortly after you arrived into Canada in the midst of the global pandemic, only to find, again, that offices and the Board were closed. Having regard to the documents before me, together with your testimony, I accept your evidence and find that it is credible.
[7] I also find you have established that you have a well-founded fear of presentation on two (2) intersecting Convention grounds, namely religious persecution as Muslims and gender-based persecution as members of a particular social group of women facing gender-based discrimination, harassment, and violence. Each of these parts of your identities factors into the broader risk you face in Mexico, where Muslims are a very tiny minority of believers in a country that is largely dominated by Catholicism and patriarchy. Your decision to flee Mexico in order to seek protection in Canada is consistent with having a subjective fear of persecution for the reasons that you have set out.
[8] I further find that the objective documents before me in Exhibit 3 form a clear basis for your subjective fear. The country condition documents in the National Documentation Package for Mexico dated 29 September 2029 — I mean, ’22 — are also consistent with information that Counsel provided on a single page in Exhibit 5 at the end. These are all consistent with your allegations that you face a serious possibility of religious and gender-based persecution if you return to Mexico. There is surprisingly little information about religious persecution in Mexico as it relates to persons of Muslim faith. The United States Department of State’s International Religious Freedom report for 2021, which is Item 12.1 of the National Documentation Package for Mexico, states the following: “According to the 2020 Mexican government census, approximately 78 percent of the population identifies as Roman Catholic, compared with 83 percent in 2010. 10 percent are Protestant or Christian Evangelical, and 1.5 percent are other religious groups, including Judaism, Jehovah’s Witnesses, the Church of Jesus Christ of Latter-day Saints, and Islam.” The absence of information in the National Documentation Package about religious persecution against Muslims in Mexico reflects the predominance of Catholicism in the country rather than a lack of discrimination, harassment, or violence amounting to persecution, including against Muslims.
[9] In assessing your risks, in addition to your membership in a religious minority group, I have also considered the intersection of your membership in this religious group as Muslims with your gender and the prevalence of gender-based violence in Mexico, specifically as against members of an all-female household. Violence in Mexico against women is widespread. This is clear in several of the reports that are in section 5 of the National Documentation Package for Mexico. Statistically, 10 women die every day. Femicides are not a priority for the Mexican government, or on the Mexican government’s agenda even, and the current president of Mexico has even normalized violence against women. The United States Department of State Report, which is Item 2.1 of the National Documentation Package, indicates that more than 1600 killings of women, including 375 femicides, took place between January and June 2020, which is the time that you fled Mexico for Canada. And in April of the same year, there was a new record, with 263 killings of women in a single month. The 911 hotline received almost 108,800 calls reporting incidents of violence against women between January 30th and May, which was an increase during the pandemic of over 20.5 percent. Killing a woman because of her gender, according to reports, particularly in section 5 again, is called ‘femicide’, and it is a federal offence punishable by between four (4) and seven (7) years’ prison. It is also a criminal offence in all Mexican states. Item 5.6 of the National Documentation Package calls the last few years a double pandemic of both femicide and COVID-19.
[10] I also note evidence in the National Documentation Package that indicates there is corruption among state agents, including police, and that it is widespread. In your case, one (1) of the agents of persecution that you fear is a family member who is a XXXX XXXX. This man has threatened your lives if you do not stop wearing your hijabs, or veils. I have taken into account in assessing and deciding your claims information in the United Nations High Commissioner handbook guidelines on assessing whether discrimination, harassment, and violence in your cases cumulatively rises to the level of persecution. Specifically, I have looked at UNHCR handbook, paragraphs 53 to 55. I find, given the nature, frequency, severity, and particulars of the incidences you have suffered over several years, the effect of these incidents on you, personally, spiritually, and the likelihood that you will face such incidents in the future if you return to Mexico, including because you have been threatened with death by a family member who is a XXXX XXXX, your situation cumulatively rises to the level of persecution. I have applied the factors set out in the UNHCR handbook, and this is my conclusion. Having taken into account the objective evidence before me, I find your fear of persecution in Mexico is well founded, given the totality of evidence before me both personal and objective, I find you face a serious possibility of persecution in Mexico if you return.
[11] There is a presumption that a state is capable of protecting its citizens except in situations where there is complete breakdown. Your burden of proof as claimants increases with the level of democracy of the state in question. The Mexican state is a multiparty federal republic that provides citizens with the ability to choose their own government through free and fair elections, so your burden is a very heavy one (1). However, I note you sought out state protection in Mexico and none was forthcoming. When you complained to the principal about the gender-based assault on the younger at school in 2015, you were clearly told not to report to state authorities, not only because the principal was equivocal about the incident and the details themselves, but also because you feared retaliation that you were warned may result. Given too that your family Member has threatened your lives and that he is a XXXX XXXX XXXX, I except as reasonable your conclusion that police would not help you and that he or others may even hurt you, or that you might otherwise suffer retaliation and be harmed by others for reporting to state authorities.
[12] In assessing whether you have adequate access to state protection, or access to adequate state protection in Mexico, I have undertaken a contextual approach considering your particular circumstances, and I am mindful of the guidance on the issue of state protection contained in the Chairperson’s guidelines 4, otherwise called the gender guidelines. While a claimant cannot rebut the presumption of state protection in a functioning democracy only by asserting reluctance to engage the state, it is also the case that a claimant is not expected to risk her life seeking ineffective protection merely to demonstrate that ineffectiveness. Clear and convincing evidence of a state’s inability to protect may include evidence of similarly situated individuals who have not been helped by the state despite their best efforts. Following the Supreme Court of Canada’s decision of Ward, I am relying on your personal experiences and the experiences of other women, Muslims similarly situated to you, taking into account that you are Mexican women who have been targeted. I find that this is clear and convincing evidence that rebuts the presumption that adequate state protection is available to you. In other words, where “documentary evidence situates the individual claimant’s experience as part of a broader pattern of state inability or refusal to extend protection, then the absence of state protection is made out.”
[13] In assessing your general access to state protection from religious discrimination, harassment, and violence amounting to persecution, I have also considered the very fact that you are forbidden by the Mexican state to where a hijab in formal government identification photographs, which as you testified is why you are not wearing a hijab in your passport photographs. Having considered all of the evidence, I find on a balance of probabilities and in light of your particular circumstances, you have presented sufficient clear and convincing evidence to rebut the presumption that adequate state protection is available to you. I therefore find adequate state protection is not available to you in Mexico if you return and seek it, on a balance of probabilities.
[14] I have also considered whether a viable state — a viable internal flight alternative exists for you, specifically and in Merida in Yucatan Peninsula. I find on a balance of probabilities that you do not have a viable internal flight alternative in Mexico. I find you would be readily identifiable based on your Muslim dress and attendance at mosque. I further find that while your threatening family member may not have reach or influence in the proposed internal flight alternative of Merida, even as a XXXX XXXX, the risk he poses to you given his threats against your life must be balanced against the fact that there are very few Muslims in Mexico. My job is to assess your forward-facing risk. There are limited places for Muslims to attend mosque in Mexico and therefore, it would not be so difficult for your cousin to watch mosques to find you, or for him to otherwise harvest information about your whereabouts from family numbers for the purpose of locating and harming you if you return to Mexico and continue to practice your faith.
[15] In other words, your religion creates the conditions which make the proposed internal flight alternative unsafe, and in making this finding I have taken into account your ongoing subjective fear of this cousin as well as the gender-based violence that you have experienced in the past and that is seriously possible in future. So, I also note the general risk you face for reasons already described as Muslim women in a female household facing religious and gender-based persecution, which together heightens your overall risk if you return to Mexico and practice your faith freely there. For all of these reasons, I find you face a serious possibility of persecution throughout Mexico and there is no viable internal alternative for you.
[16] Based on the totality of evidence before me, I find you have established you face a serious possibility of persecution in Mexico on a Convention ground, and I therefore find that you are Convention refugees and I accept your claims.
——— REASONS CONCLUDED ———