Mexican Queer Refugees Need Not Apply

We are all aware (hopefully) that the human rights situation, especially for LGBTQ people, is highly variable around the world. Many means of advocating for changes in countries with less enviable situations than ours (and by ours I mean Canada specifically but the global west generally) make me uneasy as they are often tainted with imperialism and colonialism, even if unconsciously (homonationalism). Beside direct interventions and other saviour type interventions, one thing that can help and does not require forcing western values on developing countries is welcoming and protecting refugees. It is the 1951 Refugee Convention and its 1967 Protocol,[1] adopted in the aftermath of the Second World War as a reaction to States who turned back Jewish and other refugees, that establish the prohibition to return refugees to their country of origin (the obligation is called non-refoulement). Crucial to this obligation on State is the determination of refugee status which is done mainly by the State of refuge in accordance with the Convention or by the Office of the United Nations High Commissioner for Refugees (UNHCR). In Canada it is the Immigration and Refugee Protection Act that governs refugee status.[2] This post looks at recent problems encountered by Mexican queer refugees within the refugee determination system of Canada. Mainly it looks at the impact of perceived state protection, as exemplified by X (Re), 2012 CanLII 91398, and of Designated countries of origin.

Background: LGBTQ Refugees

In order to obtain refugee status a claimant must demonstrate well-founded fear of persecution based on one of the Convention grounds.[3] This legal test is divided in three parts: the subjective element (the fear), the objective element (well-founded), and a link to a Convention ground (also called nexus). The subjective element requires claimant to prove that their fear is real and not merely hypothetical (ex: a police raid, a family member being arrested or simply your identity such as being queer in a state were homosexual acts are criminalized). The objective element is based on the country conditions and on the ground facts. It requires determining if the group of which the claimant is part is being persecuted either by the State itself or by non-state actors with the complicity of the State (if the State is unable to protect its citizens, even if it is not voluntarily complicit in persecution, the fear is considered well-founded).[4] Finally there is the nexus with a Convention ground which include race, religion, nationality, political opinion and membership in a particular social group.

Membership in a particular social group is the broadest and most flexible ground.[5] It includes sexual orientations and gender identity.[6] In Canada (and in most refugee receiving countries) sexual orientations and gender identity created many issues that the refugee determination system, the Immigration and Refugee Board for Canada, was poorly equipped to deal with. Problems included finding a claimant to not be homosexual because he did not look or act gay, or did not have any knowledge of the “gay scene”;[7] finding a claimant to not be homosexual because of a past or current same-sex spouse and/or that the claimant has children;[8] finding that a claimant can live in his country of origin if they hide their sexual orientation or live it discretely;[9] confounding sexual orientation and gender identity;[10] and using sarcastic and/or inappropriate language when questioning claimant.[11] Most of these errors are based on prejudice towards and/or ignorance of LGBTQ people. Although demonstrative of the poor qualification of the Board to deal with LGBTQ claimants, those mistakes have been easily rectify by the Federal Court considering their obviousness.

Queer in Mexico: The Illusion of Progressive Legislation

However, many issues also arise under the guise of “reasonable findings of facts”, thus evading judicial review, but still based on a misunderstanding of LGBTQ oppression.[12] These usually arise when the Board find that there is adequate state protection for LGBTQ people (usually in cases where persecution is done by non-state actors and some protective legislation exists and/or in cases where large metropolitan areas where homosexuality is more tolerated exists).[13] They are common in cases where the claimant is from South America or Eastern Europe. They are especially common in Mexicans’ claims.[14] It is especially common in Mexicans’ claims because of the proximity of Mexico to Canada and thus a large number of refugee claimants are from that country regardless of their Convention ground. Another reason is the fact that Mexico City (the Federal District) and other Mexican States have legalized same-sex marriage and/or adopted legislation against LGBTQ discrimination. Most of these claims are rejected because the Board equate these legal changes with state protection and because Mexico is a democratic society.[15]

The case of X (Re) exemplifies the issue:

[134] Furthermore, the Panel is satisfied, on a balance of probabilities, that Mexico, and in particular Mexico City, has made significant efforts to address what was once systemic discrimination against homosexuals in Mexico. Not only is there legislation in place in Mexico City for example, prohibiting discrimination, but there are mechanisms which the PC can utilize to ensure that her rights are protected. The Federal District has even legalized gay marriage. This is a step that many democracies which are considered to be more developed than Mexico, have not yet taken. [X (Re), 2012 CanLII 91398 (IRB-RPD)]

I am happy that Mexico is making progress on these issues, but this progress does not translate into protection. As shown in a report by the Organization for Refugee, Asylum & Migration (ORAM), the LGBTQ situations in Mexico is far from adequate and legislative changes are often not accompanied by changes in social attitude (at least not immediately).[16] It is a fundamental misunderstanding to think that marriage legislation is an actual indicium of State protection. A legally married same-sex couple will still face discrimination and persecution and maybe even more so as people may consider it an affront to their values.[17] Police forces, State officials, lawyers and judges don’t magically become tolerant and accepting because marriage and event anti-discrimination legislation exist. As stated in the ORAM report:

Despite the progressive laws passed in various states and the Federation of Mexico, the president of CONAPRED (the National Council to Prevent Discrimination), Ricardo Bucio, recognized that “tolerance towards groups such as homosexuals is still ‘practically the same’ even after the State recognized their rights.” Hate crimes and violence continue against LGBTI persons. A recent study by the College of Mexico, which assessed 11 out of 32 states of Mexico, found evidence of 1,656 hate crimes against LGBTI individuals from 1995 to 2009. CONAPRED notes that 640 murders of LGBTI people in Mexico have been reported over that same period, and only 10 percent of these have been resolved.

Moreover, many hate crimes and murders are never reported, as victims’ families are “silenced by the lack of response from the authorities or society’s general acceptance of homophobia.” Societal discrimination based on sexual orientation and gender identity remains prevalent in Mexico, as reflected in entertainment and everyday attitudes. Many churches and religious government officials – who hold great influence given the predominance of Catholicism in Mexico – openly denounce homosexuality. For example, the Archbishop of Mexico City, Norberto Rivera Carrera, stated publicly that gay marriage was among one of Mexico’s most serious problems, alongside violence, poverty, and unemployment. [at p 6, footnotes omitted]

In fact when Board Members adequately delve into the question of state protection for LGBTQ people the results are much different:

[43] Mexico is a democratic state that must be presumed capable of protecting its citizens. Since 2003, discrimination based on sexual orientation has been prohibited in Mexico. Marriage between same‑sex couples has been legal in Mexico City since March 2010. More specifically with respect to the situation of transgender persons, Mexico City has adopted legislation that facilitates name changes for transsexuals who live in that jurisdiction. Some mechanisms, including the National Council to Prevent Discrimination, are in charge of investigating discrimination complaints concerning the public and private sectors.

[…]

[45] First, the panel notes that the claimant identifies herself as a transgender person, not as a woman. Although she could perhaps feminize her name if she settled in Mexico City, she would not obtain protection as a transgender person. It is also because society perceives her as having a man’s body that became a woman’s that she was subjected to and risks being subjected to persecution. A legal identity change could not remedy this situation.

In recent months, Mexico City has adopted legislation which would facilitate the change of name for transsexuals living in that jurisdiction. While such initiative is a positive step, it does not necessarily eliminate the threat of persecution. Scientific studies in this area reveal that Mexican society is deeply aggressive towards male-to-female transsexuals, and that such aggression manifests itself through verbal, physical and social violence – from insults yelled on the streets to assault, robbery and refusal of employment based on one’s physical appearance.

In my empirical research on violence against transsexuals, I have found that it is the visibility of one’s transsexual status which puts someone at risk of violence: the fact that other people can identify an individual in question to be transsexual explains why they are so often victims of assault.

[…]

[49] In this respect, the documentary evidence indicates that police officers are themselves agents of persecution of transgender persons in Mexico, regularly harassing and extorting them.

Transgender persons are also threatened by the existence of public morals laws throughout the country. These laws, found in several areas across the country, are often very vague, criminalizing such acts as “obscene exhibitions”, “causing a scandal in a public way”, “acting in such a way as to offend one or more persons”, “acting in ways which fail to respect human dignity, public morality and good customs”. Because these laws are so vague, they are frequently used by police officials to harass, detain and extort transgender persons and travesty. For example, the International Gay and Lesbian Human Rights Commission has documented that the mere presence of a travesty person in public may be interpreted as an ‘obscene exhibition’ by police in some states. Some travestis [sic] and transgender persons pay fines to police officials almost daily to avoid being detained under these laws, a clear act of extortion and a violation of the right to be free from arbitrary detention.

[…]

[51] Although some areas in Mexico such as Mexico City, Guadalajara and Puerto Vallarta are more open to homosexual communities, the panel is of the opinion that the claimant would not have had an internal flight alternative. The particular situation of transgender persons, who according to traditional Mexican values are out of place in society, is such that the claimant is at risk everywhere in the country. [X (Re), 2011 CanLII 67655 (IRB-RPD), footnotes omitted]

This case shows that proper investigation of the facts and an open mind will lift the veil that is often created by positive changes in legislation. After all it is the effective enforcement of the legislation that would effectively create state protection, not simply its existence.[18] The difference between this case and X (Re), 2012 CanLII 91398 is the focus on the effectiveness of the legislation in place and the social attitude towards LGBTQ people. While the differences in approach used by the panels might be due to the ground (gender ID instead sexual orientation), the documentation on Mexico highlights that many problems faced by all sexual minorities are similar and in some respect identical.[19] This at least creates the hope that improving the quality of refugee claim determination will improve fairness for LGBTQ Mexican claimants. Understanding the plight of sexual minorities is the key issue in those cases.

Designated Country of Origin: Doomed by a List

To make matters worst, Mexico has been placed on the Designated countries of origin (DOC) list on 15 February 2013 (a list created at the discretion of the Minister of Citizenship and Immigration) which limits the legal recourses of Mexican refugee claimants and the amount of time they have to prepare their claim thus limiting further their chances of success even if there is well-founded fear of persecution.[20] This is because the Canadian government has deemed Mexico a safe country and by consequence wishes to leave refugee claimants with less opportunity to prove their claim (based on the rhetoric of “bogus refugee claimants”). Specifically, DOC claimants have their claims heard faster (thus less time to prepare), 30-45 days after referral instead of 60.[21] If a DOC claim is rejected by the Refugee Protection Division of the Board, the claimant cannot appeal the decision to the Refugee Appeal Division.[22] Even if the claimant applies for judicial review of the Refugee Protection Division decision, the removal will not be stayed as is the norm for non DOC applications.[23] A DOC claimant whose claim was rejected cannot apply for Pre-Removal Risk Assessment (PRRA) for 36 months, there nullifying it use, unless the claimant can obtain a ministerial exemption.[24]

The UNHCR Guidelines for LGBTQ claimants specifically mention that the use of such lists is not adequate for LGBTQ claimants because of the complex nature of their claims.[25] The case of Mexico is a perfect example of the merit of this UNHCR statement. As shown previously, while one can critique the inclusion of Mexico on the DOC list for many reasons, the alleged state protection is often ill applied, if applied at all, to the LGBTQ population. If the country is not truly safe for all segments of its population, is the listening truly in compliance with the Convention? I doubt so, especially without at least exemptions for certain classes of claims. Sadly, a queer Mexican refugee has now institutional obstacles to its refugee status claim in addition to the obstacles faced by all queer refugees. Imagine the X (Re), 2012 CanLII 91398 case, where a claimant faces an uphill battle to prove her claim due to favourable legislation and prima facie state effort. How can she adequately prepare, given that she is a refugee newly arrived in Canada and lacks knowledge of the law, in such a short period of time without the possibility of getting errors corrected on appeal? Even with judicial review, which is more limited than an appeal, she would need to convince a judge that a judicial stay is warranted as she would be bar from an automatic stay. All of this because of the dubious inclusion of Mexico on the DOC list.

Mexican queer refugees, indeed all refugees, deserve a fair and complete evaluation of their claim, not some pretence of determination probably based more on the nationality of the claimant then on the actual facts of the case. The limits on LGBTQ Mexican refugee claimants’ right to get their claim determined fairly in Canada add insult to injury. Without reform to the DOC system, Mexico should simply be removed from the list.

Conclusion

This paper shows that the Immigration and Refugee Board, Citizenship and Immigration Canada and other agencies dealing with refugees and immigrants are either in desperate need of training on LGBTQ issues, especially from alleged safe countries, or are simply unwilling to properly apply the UNHCR guidelines. I do not know which one is worse. In either ways, something must be done in order to ensure Canada’s (and other countries) compliance with its international obligations. Decisions like X (Re), 2012 CanLII 91398 show that even when a claimant succeeds in overcoming the hurdle of proving their sexual or gender identity, there is a lack of understanding of what LGBTQ people face on the ground and their mistrust of institutions due to historical persecution/discrimination, which can result in deporting individuals to persecution (thus violating non-refoulement in principle).

Advocating to Parliament and the government might achieve some success, but it seems unlikely that they will change their minds in the near future. It might thus be more useful to focus on other actors, especially lawyers, board members, immigration officers and judges.[26] This group would greatly benefit from education on these issues and their awareness may result in greater chances of success for LGBTQ refugee claims, especially those originating from Mexico and similarly situated countries. In the meantime I encourage people who want to help queer people facing persecution to enquire on how they can help such claimants instead of supporting saviour type organisations.[27] Let us show real solidarity with LGBTQ people of developing countries. Let us ensure that when they must leave, we will welcome them.

[1] Convention relating to the Status of Refugees, 28 July 1951, 189 UNTS 150.

[2] Immigration and Refugee Protection Act, SC 2001 c 27 [IRPA].

[3] See the UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, 1979 reissued 2011, HCR/1P/4/ENG/REV.3 (http://www.refworld.org/docid/4f33c8d92.html) for more on refugee status.

[4] Canada (Attorney General) v Ward, [1993] 2 SCR 689.

[5] “[A] particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.”: UNHCR, Guidelines on International Protection: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, Geneva, 2002, HCR/GIP/02/02, at para 11 (http://www.unhcr.org/3d58de2da.html) [UNHCR]. See also Ward, ibid.

[6] UNHCR, Ibid, at paras 1, 6 & 20; Ward, supra note 5, at p 739; Smith v Canada (Citizenship and Immigration), 2009 FC 1194 at paras 15 & 39; X (Re), 2011 CanLII 67655 (IRB-RPD); HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department, [2010] UKSC 31 at paras 6, 10 & 11; Appellant S395/2002 & Appellant S396/2002 v Minister for Immigration and Multicultural Affairs, [2003] HCA 71; Karouni v Gonzales, 399 F 3d 1163 (USCA 9th Cir, 2005) at 1172; and Hernandez-Montiel v Immigration and Naturalization Service, 225 F 3d 1084 (USCA 9th Cir, 2000).

[7] Essa v Canada (Citizenship and Immigration), 2011 FC 1493.

[8] Leke v Canada (Citizenship and Immigration), 2007 FC 848.

[9] Boteanu v Canada (Minister of Citizenship and Immigration), 2003 FCT 299.

[10] Contreras Hernandez v Canada (Citizenship and Immigration), 2007 FC 1297.

[11] Diallo v Canada (Citizenship and Immigration), 2012 FC 562.

[12] See for example Smith v Canada (Citizenship and Immigration), 2012 FC 1283. A Court on judicial review can only intervene when the decision-maker made unreasonable findings of fact or if the decision is unreasonable as a whole: Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47-51.

[13] However, the question of the sexual or gender identity of a claimant still remains an issue: Nicole LaViolette, Sexual Orientation, Gender Identity and the Refugee Determination Process in Canada, Refugee Protection Division of the Immigration and Refugee Board of Canada, 2013 (https://www.academia.edu/3431684/Sexual_Orientation_Gender_Identity_and_the_Refugee_Determination_Process_in_Canada); and Smith, ibid.

[14] Ex: X (Re), 2012 CanLII 95535 (IRB-RPD); X (Re), 2012 CanLII 99930 (IRB-RPD); X (Re), 2012 CanLII 91398 (IRB-RPD) [X (Re)]; X (Re), 2012 CanLII 98289 (IRB-RPD); X (Re), 2011 CanLII 96303 (IRB-RPD); X (Re), 2011 CanLII 93473 (IRB-RPD); and X (Re), 2010 CanLII 96751 (IRB-RPD).

[15] Free and democratic society is a phrase the Board often uses to imply state protection and reject claims. I comes from cases such as Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171.

[16] ORAM, Blind Alleys: The Unseen Struggles of Lesbian, Gay, Bisexual, Transgender and Intersex Urban Refugees in Mexico, Uganda and South Africa, Part II, Country Findings: Mexico, 2013 (http://www.oraminternational.org/en/publications). See also Immigration and Refugee Board of Canada, Information on the supreme court rulings regarding same-sex marriage, including societal attitudes, Responses to Information Requests MEX103798.E, 1 September 2011 (http://irb-cisr.gc.ca/Eng/ResRec/RirRdi/Pages/index.aspx?doc=453573); Immigration and Refugee Board of Canada, Treatment of sexual minorities, including legislation protecting sexual minorities, other state protection, recourse and services available, Responses to Information Requests MEX103804.E, 16 September 2011 (http://irb-cisr.gc.ca/Eng/ResRec/RirRdi/Pages/index.aspx?doc=453578); Virginia Corrigan, The Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in Mexico: A Shadow Report, Global Rights, International Gay and Lesbian Human Rights Commission, International Human Rights Clinic – Human Rights Program of Harvard Law School, and Colectivo Binni Laanu AC, March 2010 (https://iglhrc.org/sites/default/files/556-1.pdf); Immigration and Refugee Board of Canada, Reports of sexual abuse committed by police officers against sexual minorities, Responses to Information Requests MEX104172.E, 13 September 2012 (http://www.irb-cisr.gc.ca/Eng/ResRec/RirRdi/Pages/index.aspx?doc=454164); and Immigration and Refugee Board of Canada, The situation of transgender people, particularly in Mexico City, Cancún, Guadalajara and Acapulco, including how they are treated and the support services available to victims of ill treatment, Responses to Information Requests MEX103460.FE, 23 October 2012 (http://irb-cisr.gc.ca/Eng/ResRec/RirRdi/Pages/index.aspx?doc=452924).

[17] Discrimination can often go unchecked and when in sufficient amount can constitute persecution: UNHCR, Guidelines on International Protection: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/12/09, Geneva, 2012, (http://www.unhcr.org/50ae466f9.html) at paras 17, 24 & 25 [LGBTQ Guidelines].

[18] The Federal Court has often been doubtful of the Board’s finding of state protection when evidence that the legislation wasn’t well implemented existed: see James v Canada (Citizenship and Immigration), 2010 FC 546. Also, in cases where the Board believes that the claimant can relocate in their country of origin, it is the panel that bears the burden of proving that an internal flight alternative exists: LGBTQ Guidelines, ibid, at para 55. X (Re), supra note 15, does a better job of this than other cases mentioned in note 15, but it still showcase a lack of understanding of social attitude towards LGBTQ people in Mexico: see LGBTQ Guidelines, at para 66.

[19] See note 17.

[20] Citizenship and Immigration Canada, Designated Countries of Origin, online: www.cic.gc.ca < http://www.cic.gc.ca/english/refugees/reform-safe.asp >; and s 109.1 of the IRPA.

[21] s 159.9(1)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]

[22] s 110(2)(d.1) of the IRPA.

[23] s 231(2) of the IRPR.

[24] s 112(2)(b.1) of the IRPA.

[25] LGBTQ Guidelines, supra note 18, at para 59. See also Action for Lesbian, Gay, Bisexual, Trans and Queer Immigrants and Refugees, Human Lives At Stake: Refugee Reform Bill C-11 and its Potential Impact on Lesbian, Gay, Bisexual, Trans and Queer Refugees, Policy Brief, 14 May 2010 (http://www.parl.gc.ca/Content/HOC/Committee/403/CIMM/WebDoc/AGIR%20E.pdf); and FCJ Refugee Centre, LGBTQ+ Migration Population, Undeserved Communities Research, May 2013 (http://www.fcjrefugeecentre.org/wp-content/uploads/2013/03/LGBTQ+-MIGRATION-POPULATION.pdf).

[26] LGBTQ Guidelines, ibid, at para 60(iv).

[27] In Canada you can visit the Canadian Refugee Council in general, and specifically you can support the Rainbow Railroad which provides help to LGBTQ people in third countries in order to get them in Canada to claim refugee protection.

One thought on “Mexican Queer Refugees Need Not Apply

  1. caleb

    I think so. I think your article will give those people a good reminding. And they will express thanks to you later

    Reply

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