Mexican Queer Refugees Need Not Apply

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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 situation 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. Beside direct interventions and other saviour type interventions, one thing that can help and does not require forcing western values down developing countries’ throat 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 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]

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 or 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 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). Finally there is the nexus with a 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.[4] It includes sexual orientations and gender identity.[5] In Canada (and in most refugee receiving countries) sexual orientations and gender identity created many issues that refugee determination systems, the Immigration and Refugee Board for Canada, were 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”;[6] finding a claimant to not be homosexual because of a past or current same-sex spouse and/or that the claimant has children;[7] finding that a claimant can live in his country of origin if they hide their sexual orientation or live it discretely;[8] confounding sexual orientation and gender identity;[9] and using sarcastic and/or inappropriate language when questioning claimant.[10] 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 claimant, those mistakes have been easily rectify by the Federal Court considering their obviousness.

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. 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). They are common in cases where the claimant is from South America or Eastern Europe. They are especially common in Mexicans’ claims.[11] 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 free and democratic society (a phrase the Board often uses to reject claims).

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).[12] 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. 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 ommited]

In fact when Board Members adequately delve into the question 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.

[44] But when we delve deeper into the matter, we note that despite these efforts, Mexico is unable to provide adequate protection to transgender persons.

[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.

[…]

[47] The panel notes that the claimant contacted XXXXX XXXXX after she thought that she had been a victim of employment discrimination by a telemarketing company in XXXXX in XXXX. She filed a copy of her communications with XXXXX XXXXX and the steps taken to process her complaint. When asked about this during the hearing, the claimant responded that she had been told that a meeting to raise awareness would be offered in the company at fault. Although this is a commendable idea, the panel notes that it did not give the claimant a job, nor did it heal the wounds of the discrimination that she believes she was a victim of. [X (Re), 2011 CanLII 67655 (IRB), footnotes omitted]

Furthermore, Mexico has been placed on the Designated countries of origin list (a list created at the discretion of the Minister of Citizenship and Immigration) which limits the legal recourses of Mexicans 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. This is because the Canadian government as deemed Mexico a safe country and by consequence wishes to leave refugee claimant with less opportunity to prove their claim. Furthermore 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 claim.[13] And this is all without talking about the drug cartel situation and the lack of State protection against such groups who are often responsible for persecution of LGBTQ people. Discrimination can often go unchecked and when in sufficient amount can constitute persecution.[14] Plus many claimants face violent situation and even risk of death. 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.

This 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 don’t know which one is worse. Either way something must be done in order to ensure Canada’s (and other countries) compliance with their international obligations. Other actors, especially lawyers and judges, would also greatly benefit from education on these issues. In the mean time I encouraged people who want to help people facing persecution to enquire on how they can help such claimants instead of sending money to with saviour type organisation or going to third countries to tell people what to do.[15] Let us show real solidarity with people of developing countries.


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

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

[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] “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).

[5] Ibid, at paras 1, 6 & 20; Canada (Attorney General) v Ward, [1993] 2 SCR 689 at p 739; Smith v Canada (Citizenship and Immigration), 2009 FC 1194 at paras 15 & 39; X (Re), 2011 CanLII 67655 (IRB); 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).

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

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

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

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

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

[11] Ex : X (Re), 2012 CanLII 95535 (IRB); X (Re), 2012 CanLII 91398 (IRB); X (Re), 2011 CanLII 96303 (IRB); X (Re), 2011 CanLII 93473 (IRB); and X (Re), 2010 CanLII 96751 (IRB).

[12] 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).

[13] 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, at para 59 (http://www.unhcr.org/50ae466f9.html).

[14] Ibid, at paras 17, 24 & 25.

[15] In Canada you can visit the Canadian Refugee Council.

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