2023 RLLR 37
Citation: 2023 RLLR 37
Tribunal: Refugee Protection Division
Date of Decision: October 27, 2023
Panel: Tereza Kazieva
Counsel for the Claimant(s): Karen Klouth
Country: Mexico
RPD Number: VC3-00218
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of XXXX XXXX XXXX, who 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 (IRPA).[1]
[2] In conducting the hearing and rendering these reasons, I have considered and applied the Chairperson’s Guideline 4, which offers guidance on the gender-specific aspects of this claim. [2] I applied this guideline during the hearing when it did not require detailed testimony regarding the sexual assault she faced. I found that the documentary evidence and her allegations, as outlined in her Basis of Claim form, credibly established the details of this incident.
ALLEGATIONS
[3] The total allegations are in the claimant’s Basis of Claim (BOC) form.[3] In summary, The claimant fears persecution based on her ethnicity as a person of African descent. The claimant fears the racist segments of the Mexican community, the Mexican authorities and her former boss.
[4] A synopsis of the allegations is as follows: The claimant testified that she had been subjected to humiliation, assaults, and insults from racists and the police due to her Afro-Mexican identity. She explained that she has faced discrimination and persecution in many facets of her life, including education, employment, housing, healthcare, and public places. She stated that she did not want to return to Mexico because she had never been treated and respected as a human being. She also fled from her former boss, who sexually assaulted and threatened to harm her because she left her job and stopped contacting him.
DETERMINATION
[5] I find that the claimant is a Convention refugee as per s. 96 of IRPA, as she has established a serious possibility of persecution if she returns to Mexico.
ANALYSIS
Identity
[6] I find that the personal identity of the claimant and her identity as a national of Mexico have been established through her testimony and the copy of her passport in evidence.[4]
Nexus
[7] I find that the allegations establish a nexus to a Convention ground of race and ethnicity. There is also a second nexus to a Convention ground, specifically membership in a particular social group as a woman facing gender-related violence due to her allegations of threats from her former boss to harm her and his previous use of sexual violence to harm her.
Credibility
[8] A claimant’s sworn testimony is presumed truthful unless there are reasons to doubt the veracity of their allegations.[5] In this case, the claimant’s testimony was candid, straightforward, emotional, and genuine. Despite the opportunity to do so, I find that the claimant did not attempt to embellish her testimony or enhance her claim’s favourability. The claimant’s testimony was consistent with the information provided in her BOC form. She was forthcoming in providing details above that were outlined in her BOC form, and I found that there were no material inconsistencies in her testimony. The claimant is a credible witness regarding the material facts established below.
Well-founded fear of persecution
Findings of fact
[9] The claimant testified that she belonged to the Afro-Mexican community in Oaxaca. The claimant provided extensive oral testimony along with her BOC narratives about the countless ways she has faced exclusion, discrimination, and persecution from members of Mexican society and the state itself. She testified to being on multiple occasions the victim of sexual harassment and assault, abuse, marginalization, bullying, targeting, and mockery in school and public places, all based on who she is, a member of the Afro-Mexican community.
[10] The claimant also testified that she was a victim of a sexual assault perpetrated by her former boss. She further testified that people often called her “negrita,” which is the equivalent of an “n” word in English. On many occasions, Mexican men who sexually harassed her made derogatory comments that “negritas have hot blood.” The claimant was discriminated against at work when she was given the most difficult tasks requiring physical effort. Her colleagues commented, “This is what the blacks are good for.”
[11] The claimant provided supporting documents in Exhibit 4. I find no reason to doubt the genuine nature of these documents and give them full weight in establishing the facts outlined below. These documents include letters from her mother in Mexico, her aunt in Mexico, her classmates in Mexico, numerous documents related to the claimant’s education, and photographs of the claimant with her colleagues. All letters the claimant provides are signed and accompanied by respective identification documents. I find that these documents and the claimant’s testimony credibly establish the following facts:
· The claimant is an Afro-Mexican woman from Oaxaca, Mexico. According to local traditions, her family sold her to a wealthy man from the same community. The claimant escaped and went to Pueblo, where, despite an adverse environment, she managed to complete university studies.
· The claimant was sexually harassed throughout the years. In XXXX 2021, her former boss raped her.
· The claimant was denied access to a public event by the police based on the colour of her skin. The police told the claimant that she was not a Mexican and that Mexico does not have black people. They also told her that she probably had faked Mexican ID documents because she looked like a foreigner.
[12] The claimant arrived in Canada on XXXX XXXX, 2022. The claimant signed her BOC form in November 2022. At first, she tried to get a work permit through an agent and waited months for the agent to get back to her. She stated that she did not know about the refugee protection system in Canada. Only later, someone at the library told her she could apply for refugee protection. She applied for refugee protection as soon as she knew that she could apply. The claimant’s explanation is reasonable, and I find that she did not significantly delay filing her claim for refugee protection in Canada. Therefore, I do not draw an adverse inference regarding her delay of nine months in submitting her claim for refugee protection in Canada.
Conclusions on Subjective Fear
[13] Based on all the evidence before me, I find that the claimant has established a subjective fear of persecution from members of Mexican society if she were to return to Mexico, including the men who assaulted her.
Objective basis
[14] The US DOS report in the most recent National Documentary Package on Mexico indicates the following on the treatment of indigenous and Afro communities in Mexico:
The Constitution prohibits discrimination based on ethnicity and a federal law prohibits all forms of discrimination. Nonetheless, discrimination was common against racial and ethnic minorities, including Black, Afro-Mexican, and Indigenous groups. All states have additional laws against discrimination. A 2019 constitutional reform recognizes Afro-Mexicans as an ethnic group. The government did not enforce the law effectively. According to a 2021 report by the National Council to Prevent Discrimination (CONAPRED), in Mexico City, dark-skinned individuals experienced the most discrimination, followed by Indigenous peoples. INEGI reported that 2 percent of the population (2.5 million) self-identified as Afro-Mexican. CONAPRED’s 2017 national survey on discrimination found 58 percent of Afro-Mexicans and 65 percent of Indigenous persons considered their rights were respected “little or not at all.” The survey also reported 22 percent of persons said they would not share a household with an Afro-Mexican. The survey reported that persons with darker skin completed 6.5 years of schooling, while those with white skin completed 10 years. A report from the Black Alliance for Just Immigration found black migrants faced widespread racial discrimination from individuals and authorities, particularly in accessing employment and services. Black migrants reported migration authorities detained Black migrants for longer periods than other migrants.[6]
[15] Item 13.1 of the NDP describes the roots of the systemic discrimination towards people with darker skin in Mexico. According to the research, discrimination is deeply rooted in the colonial past of Mexico. During Spanish colonization, the Spaniards established a caste system in Mexico. Many Mexicans identify as mestizos, a term with historical roots dating back to Spanish colonization. The term mestizo originally referred to the offspring of a Spanish man and an Indigenous woman are considered lower in caste than a peninsular (one who was born in Spain) or a criollo (one who was born in the New World to Spanish parents). The caste system established during these times created terms for various racial mixtures of Spanish, Indigenous, and Black people, as depicted in paintings of those times. Some of these include mulato (a Spanish man with a Black woman) and morisco (mulatto man with a Spanish woman). One caste painting shows that if a castizo man (offspring of a mestizo man and a Spanish woman) had a child with a Spanish woman, their offspring would then be considered an español (Spaniard), showing that the addition of Spanish blood (and thus diminution of Indigenous blood) could confer higher status. In addition to establishing the caste system and assigning castes to individuals, skin colour was another determinant of social status during these times. For example, if an Indigenous person had fair skin, then they could pass as mestizo or white. These concepts of European descent and whiteness dictating social status are still reflected in modern Mexican society.[7]
[16] The same source describes the situation for Afro-Mexicans and people with darker skin in Mexico. It states: ” Racial discrimination is pervasive in Mexico and has significant effects on Afro-Mexicans and Black migrants, including unequal treatment by government officials and barriers to accessing services and integrating into society.”[8] The report describes cases of Afro-Mexicans who were detained by Mexican police because the Mexican police did not believe that black people were Mexican. In some egregious cases, black Mexicans were deported to countries such as Haiti. In 2019, the Mexican Constitution was amended to recognize Afro-Mexicans officially. This was an important first step to address the discrimination, including based on race, that affects both Afro-Mexicans and Black migrants in Mexico. This racism manifests overtly, such as almost a quarter of all Mexicans saying they would not rent to an Afro-descendant person, and structurally, such as the inverse correlation between dark skin and educational and economic outcomes in Mexico.[9]
[17] In its concluding observations on Mexico from December 2019, the Committee on the Elimination of Racial Discrimination (“CERD Committee”) found that Mexico is not doing enough to combat racial discrimination within its borders. The CERD noted that racial discrimination against Afro-Mexicans “continues to be deeply rooted and is an obstacle to constructing a multicultural society based on equality and fairness.” The CERD Committee further noted that Afro-Mexicans “continue to face discrimination, high levels of marginalization and social exclusion.”[10]
[18] NDP item 13.2 states: “Mexican immigration officials have even detained and, in some egregious cases, deported Afro-Mexicans and Indigenous Mexicans due to discriminatory assumptions that they are non-citizens. Discrimination, on the basis of skin colour and race, is prevalent throughout Mexico and adversely impacts Black and Indigenous migrants and citizens.”[11]
[19] Gender Guideline at para 6 talks about intersectionality, which is “a framework for understanding how multiple identity factors including, but not limited to gender, disability, race, religion, indigenous identity, age, or sexual orientation may interact to create distinct and compounded forms of discrimination, mistreatment or marginalization.”[12] The claimant is an Afro-Mexican woman who experienced gender-based violence in Mexico. According to NDP, “black women in particular face widespread racial and gender-based discrimination in Mexico.”[13] Item 13.7 states: “. In July 2018, the UN Committee on the Elimination of Discrimination against Women expressed concern at ongoing discrimination and stereotyping against groups, including Afro-Mexican women, as well as at practices such as forced evictions affecting them.”[14]
[20] The Mexican NDP also indicates high levels of violence against women, widespread patriarchal attitudes about women, rising rates of femicide, and mistreatment of women by police officers.[15] The rate of femicides in Mexico has increased by 137 percent over the last five years, while homicides have comparatively increased by 35 percent over the same period. [16] The NDP indicates that “older women in Mexico are among the groups most vulnerable to violence, because of both their gender and their age,” that “between January 2019 and March 2020, 158 women over 60 were victims of femicide”, and that “a third of older women are victims of physical or psychological violence.”[17]
Conclusions on well-founded fear of persecution
[21] Considering all of the objective evidence, alongside the claimant’s particular circumstances, experiences, and intersectionality, I am satisfied that if the claimant returned to Mexico today, she would face a well-founded fear of persecution.
State Protection
[22] Except in situations of complete breakdown of the state apparatus, the state is presumed to be capable of protecting its citizens unless there is clear and convincing evidence to the contrary. I find that the claimant has rebutted this presumption, as her testimony and the objective evidence demonstrate that the state will not provide her with adequate protection.
[23] The claimant tried to report the sexual assault to the police. However, when the claimant arrived at the station, the police asked her for her passport because they didn’t believe she was Mexican. They told her there was insufficient evidence to launch an investigation and “it was natural for a man to look at a woman and that there was no crime.”[18]
[24] NDP item 7.18 states that “various police forces in Mexico…lack human and material resources in order to investigate crimes properly”. This item also states that “93.2 percent of all crimes committed were either not reported or not investigated,” with a large amount of blame placed on the police, as citizens saw reporting as “a waste of time,” they had a “lack of trust in authorities,” there were “difficulties and a [long reporting] process,” authorities had a “hostile attitude.” They feared “being victims of extortion.”[19]
[25] More than half of Mexican citizens saw both the police and the Attorney General’s office as corrupt.[20] According to the BTI 2020, “[a]s a consequence of impunity and the fact that official forces are in many cases involved in criminal acts, people who are victims of crime rarely report the crime to the police. People are afraid that as the police may be involved, they will be victimized again or because they feel it is useless”.[21] NDP item 10.2 outlines a high risk of police corruption in Mexico, that “corruption…underpins state collusion with criminals”, and that in most Mexican states, local police “have been infiltrated by organized crime”. This source states that this includes police at all levels—federal, state, and local—and that entire police forces have been disbanded, suspended, or arrested due to the penetration of organized crime and corruption. When violent crimes are reported, according to NDP item 7.18, “if a victim or their family does not pay for the police investigators’ expenses, no arrest will be made.”[22]
[26] The country’s condition documents indicate that laws addressing violence against women are not effectively enforced. Item 5.24 states: “The most recent information from the SESNSP, from January to December 2020, shows that 10.2 women and girls are murdered every day in Mexico. The prevalence of femicides shows that actions continue to be insufficient to prevent, address and punish violence against women, which is framed in a context of generalized violence, discrimination, and impunity.”[23]
[27] When discussing police treatment of women, item 5.5 states that “in a context where social constructs are based on a predominantly patriarchal culture, women…face particular discrimination simply because they do not have a male partner. Women in Mexico are expected to have a male partner; if they do not, this is seen as suspicious”. Sources in item 5.5 indicate that there has been “systemic impunity” in terms of how gender-based violence is addressed, and note the “complicity, indifference, and mismanagement of cases” involving violence against women. The United Nations Committee on the Elimination of Discrimination Against Women, amongst other sources, has emphasized that there are “deep-rooted institutional, structural and practical barriers” which continue to hinder access to justice for women, including those officials within the criminal justice system, including law enforcement officers, hold “discriminatory stereotypes” and “limited knowledge” of women’s rights.[24]
[28] I have considered the country conditions noted above, that the agents of persecution are members of the Mexican society, including the police and the claimant’s testimony that she did not receive any protection after she attempted to report the sexual assault to the police. I find state protection inadequate at an operational level and would not be forthcoming to the claimant in her circumstances.
Internal Flight Alternative
[29] For an internal flight alternative (or IFA) to be viable, it must satisfy both prongs of a two-prong test on a balance of probabilities. I must assess whether there is another location in Mexico where the claimant would not face a serious possibility of persecution or a risk of harm and whether it would be reasonable to expect her to move there.[25]
[30] There is considerable objective evidence on the treatment of Afro-Mexicans in Mexican society. Black and Afro-descendent people face longstanding systematic racial discrimination in Mexico. Item 13.7 states: “The African presence in Mexico was still often denied or trivialized, and where popular culture depicts black people, they tend to be caricatured and ridiculed.”[26]
[31] NDP item 13.2 states: “Discrimination, on the basis of skin color and race, is prevalent throughout Mexico and adversely impacts Black and Indigenous migrants and citizens.”[27] Item 13.11 describes economic inequalities between black or dark-skinned people and those with a fairer skin colour. It states: “A 2019 Oxfam report found that 35 percent of Mexicans who self-identify as dark-skinned (and 72 percent of those who speak an Indigenous language) fall in the bottom quartile of an index that measures occupational, educational, and economic indicators.”[28]
[32] Based on the information before me, I find that the claimant does not have a viable IFA in Mexico.
CONCLUSION
[33] I find that the claimant is a Convention refugee and accept her claim.
(signed) Tereza Kazieva
October 27, 2023
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Gender Considerations in Proceedings before the Immigration and Refugee Board, updated July 18, 2022.
[3] Exhibit 2.
[4] Exhibit 1.
[5] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (CA).
[6] National Documentation Package, Mexico, 29 September 2023, tab 2.1: Mexico. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[7] National Documentation Package, Mexico, 29 September 2023, tab 13.11: “There is a Target on Us” – The Impact of Anti-Black Racism on African Migrants at Mexico’s Southern Border. Black Alliance for Just Immigration. S. Priya Morley et al. January 2021.
[8] Ibid.
[9] Ibid.
[10] National Documentation Package, Mexico, 29 September 2023, tab 13.8: Concluding observations on the combined eighteenth to twenty-first periodic reports of Mexico. United Nations. Committee on the Elimination of Racial Discrimination. 19 September 2019. CERD/C/MEX/CO/18-21.
[11] National Documentation Package, Mexico, 29 September 2023, tab 13.12: Reckoning with racism against Black migrants in Mexico. OpenGlobalRights. S. Priya Morley. 16 February 2021.
[12] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Gender Considerations in Proceedings before the Immigration and Refugee Board, updated July 18, 2022.
[13] National Documentation Package, Mexico, 29 September 2023, tab 13.11: “There is a Target on Us” – The Impact of Anti-Black Racism on African Migrants at Mexico’s Southern Border. Black Alliance for Just Immigration. S. Priya Morley et al. January 2021.
[14] National Documentation Package, Mexico, 29 September 2023, tab 13.7: Mexico. World Directory of Minorities and Indigenous Peoples. Minority Rights Group International. May 2020.
[15] National Documentation Package, Mexico, 29 September 2023, tab 2.1: Mexico. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[16]National Documentation Package, Mexico, 29 September 2023, tab 5.20: Women whose past partners are involved in criminal activities and implications for their safety (2019–August 2021). Immigration and Refugee Board of Canada. 27 August 2021. MEX200735.E.
[17]National Documentation Package, Mexico, 29 September 2023, tab 5.14: The situation and treatment of single older women who return to or relocate within Mexico without family support, including access to employment, housing, and social benefits; whether single older women are at a heightened risk of violence … Immigration and Refugee Board of Canada. 26 August 2020. MEX200275.E. .
[18] Exhibit 2.
[19]National Documentation Package, Mexico, 29 September 2023, tab 7.18: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available to victims, including witness protection (2018–September 2020). Immigration and Refugee Board of Canada. September 21, 2020. MEX200313.E..
[20] Ibid.
[21] Ibid.
[22]Supra. Footnote 21.
[23]National Documentation Package, Mexico, 29 September 2023, tab 5.24: Violence Against Women in Mexico. National Citizen Observatory on Femicide et al. February 2021.
[24] National Documentation Package, Mexico, 29 September 2023, tab 5.5: List of issues and questions in relation to the ninth periodic report of Mexico. Addendum: Responses of Mexico. Mexico. March 27, 2018. CEDAW/C/MEX/Q/9/Add.1.
[25] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 2003 FC 1075.
[26] National Documentation Package, Mexico, 29 September 2023, tab 13.7: Mexico. World Directory of Minorities and Indigenous Peoples. Minority Rights Group International. May 2020.
[27] National Documentation Package, Mexico, 29 September 2023, tab 13.2: Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Mexico. United Nations. Human Rights Council. 28 June 2018. A/HRC/39/17/Add.2.
[28] National Documentation Package, Mexico, 29 September 2023, tab 13.11: “There is a Target on Us” – The Impact of Anti-Black Racism on African Migrants at Mexico’s Southern Border. Black Alliance for Just Immigration. S. Priya Morley et al. January 2021.