2023 RLLR 6

Citation: 2023 RLLR 6
Tribunal: Refugee Protection Division
Date of Decision: November 7, 2023
Panel: Lindsay Trevelyan
Counsel for the Claimant(s): Dariusz Wroblewski
Country: Mexico
RPD Number: TC1-21297
Associated RPD Number(s): TC1-21304
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision in the claims of XXXX XXXX XXXX XXXX, the principal claimant, and XXXX XXXX XXXX, the associate claimant. The claimants are citizens of Mexico and claim refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[2]       I have considered and applied Chairperson’s Guideline 4: “Gender Considerations in Proceedings Before the Immigration and Refugee Board” and the Chairperson’s Guideline 9: “Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics” in my analysis and my reasons.

[3]       I find that the claimants are Convention refugees pursuant to section 96 of the Act.

[4]       The facts and the events alleged in support of the claim are set out in the associate claimant on the Basis of Claim form and attached narrative in the Basis of Claim amendments at Exhibit 2.1 and 2.2 and Exhibit 7. To summarize the claimants are same-sex partners. They met in Mexico and began dating in 2018. Prior to meeting the principal claimant, the associate claimant alleges to have briefly dated a boy who one (1) night sexually assaulted her. The AC told her parents, who offered her no support. After the AC made clear that she did not want to see her assailant again, he came to her house and forced his way in. He broke her ankle. Over a year later, he came to the claimant’s shared home with a friend or two (2), and forced his way in, and sexually attacked the two (2) women.

[5]       He has continued to stalk the associate claimant and her long-term partner, the principal claimant, despite their attempts to move across the country. The claimants allege they moved to Cancun, to Mexico City, and finally to Mérida in all locations were located by the agent of persecution. The claimant flew to Canada from your hometown after collecting their passports and made a refugee claim upon arrival.

[6]       The claimants’ personal identities and Mexican nationality were established based on copies of their certified true passports at Exhibit 1 and their testimony. I am satisfied, based on a balance of probabilities, that the claimants have established their identity.

[7]       With respect to Nexus. As noted above, the associate claimant’s narrative recounts how she has faced violence at the hands of a violent ex-boyfriend, and the claimants also allege that his harassment and attacks are linked to their sexual orientation. I am satisfied that this scenario would constitute being targeted for persecution in an intersectional manner due to their membership of a particular social group on the basis of gender, as women facing gender-based violence and as lesbians. I have examined this claim pursuant to section 96 of the Act.

[8]       When a claimant swears that certain facts are true, this creates the presumption that they are true unless there is a valid reason to doubt the truthfulness. The associate claimant testified for the most part in a clear, straightforward, and spontaneous manner, and her testimony was generally consistent with the documentary evidence before me. Both claimants provided emotional testimony about the toll, the violence, and flight from Mexico has taken and that they wish they could return to Mexico safely. Accordingly, on a balance of probabilities, I find that the associate claimant was a credible witness as to her experiences, and I therefore believe what she has alleged, as well as what the principal claimant alleges.

[9]       The claimants also provided documentary evidence to support their claim at Exhibit 6 and Exhibit 8. The claimants provided a letter from the associate claimant’s mother indicating that she knows of the threat and of the claimants’ relationship, and a second letter indicating that the agent of persecution had visited the house and wanted inside. They provided a letter from the principal claimant’s mother indicated her knowledge of the threat from the agent of persecution and a second indication that she does not support the principal claimant’s relationship with the associate claimant. The claimants provided a copy of the police report they made when they went to the police in Mexico City after they had fled to Cancun. The associate claimant testified that the officer who took their statement was preoccupied with their relationship and provided no assistance with the threat that they face from the agent of persecution.

[10]     The claimants also provided letters from the friends who helped them in Cancun, in Mexico City, both corroborating their relationship and the harassments and threats that they faced. The claimants both provided confirmation of employment in Cancun. In addition, they provided many photographs of the two (2) of them in Mexico and in Canada, a photograph of the associate claimant’s broken leg in a cast, and a photograph of the associate claimant with the agent of persecution. Finally, the claimant provided a letter from the associate claimant’s school corroborating that she showed signs of XXXX in 2018 and that she attended XXXX. The claimants provided XXXX XXXX XXXX reports from XXXX of 2023, corroborating their narrative.

[11]     With regard to these documents, I am satisfied on a balance of probabilities that they credibly corroborate the details of the claimants’ life, including that they are in a same-sex relationship, and that they have been stalked and assaulted by the associate claimant’s ex-boyfriend. On a balance of probabilities, I consider that the claimants have credibly established their profiles as lesbian women facing gender-based violence.

[12]     I find that the objective evidence, as set out in the National Documentation Package for Mexico from September 29th, 2023, at Exhibit 3 supports the claimants’ subjective fear as well-founded. With respect to the claimants’ sexual orientation, the president of the National Council for the Prevention of Discrimination states that discriminations against LGBTQ persons are a structural phenomenon with extensive social groups. The same source indicates violence is constant and discrimination prevalent. For this I refer to Exhibit 3 at Item 6.4. But the same-sex sexual relations are not criminalized in Mexico and have legislation against discrimination of LGBTI individuals.

[13]     The Thomson Reuters Foundation reported that access to rights is uneven with dozens killed in hate crimes each year and LGBT+ persons facing prejudice and prevalent discrimination. The same source indicates that there is crisis regarding the treatment of the LGBT community members by society, authorities, and law enforcement. For this, I refer to Item 6.2 at Exhibit 3. The same source indicates there are no provisions aggravating penalties for crimes motivated by victims of sexual orientation at the federal level. The US Department of State’s country reports on human rights practices for 2022 notes that the government did not always investigate and punish those complicit in abuse against LGBTI persons, and the Research Directorate indicated progress and sexual diversity was slow and absent in political agendas.

[14]     Though information regarding housing, education, employment, and health care was scarce, 30 to 35 percent of respondents would not rent to a gay or lesbian person. According to the special program on sexuality, health, and HIV representative, LGBA (sic) individuals face discrimination when they share their sexual orientation, or it is discovered, discriminations in health institutions are also documented. The same source says that there is no access to education, given teachers and professors are homophobic or transphobic. And this I refer to Item 6.2 at Exhibit 3.

[15]     Counsel for the claimants provided country condition documentation at Exhibit 5. This documentation, it noted considerable violence against gay and lesbian Mexicans reporting the documentation of 78 deaths in 2021. The same sources approximated that the real figure would be closer to 279 homicides.

[16]     With respect to the element of gender-based violence. I note that gender-based violence, with Guideline 4, refers to as a cycle of violence and coercive control, is very common in Mexico. For this, I refer to Exhibit 3 Items 5.10, 2.1, and 2.2. All these items refer to the thousands of killings of women reporting throughout the country each year, many of which are investigated as femicide. Given the associate claimant’s testimony in the country evidence regarding the effect of the impunity enjoyed by men in Mexico when engaging in violence against women, including sexual violence and sexual harassment, and the documentation of discrimination and violence as against two (2) LGBTQIA+ persons, I accept the claimants’ fear of persecution from the community and their assailant is an objectively well-founded one (1).

[17]     While there is a presumption that states can protect their own citizens except in a state of complete breakdown, that presumption can be rebutted with clear and convincing evidence of the state’s inability or unwillingness to protect its citizens. In this case, however, I find that the documentary evidence supports that the claimants would have no access to adequate or effective state protection if returned to Mexico. The Country Report — the US Country Report from 2022 states that civil society groups claimed police routinely subjected LGBTI persons to mistreatment in custody. For this, I refer to Item 2.2 at Exhibit 3.

[18]     The UN Special Rapporteur, notes that the alarming pattern of homicides of lesbian, gay, bisexual, and transgender individuals, and the broad impunity for these crimes, sometimes with suspected complicity of investigative authorities. For this, I refer to Item 6.4. The same source indicates a high level of distrust in authorities and that 15 percent of gay respondents said they have been detained because of their LGBTI status. Item 6.4 in the NDP indicates that the judicial system is not effective in investigating crimes committed against sexual minorities. In the case of the homophobic crimes, the same source indicates that people who were found guilty were set free, further homophobic crimes are frequently considered crimes of passion, and the authorities fail to investigate, prosecute, or sanctions these crimes.

[19]     In terms of gender-based violence, Item 5.6 of the NDP blames the increase in the level of arbitrary violence against women has tied to the impunity offered by Mexico’s judicial system. The likelihood of perpetrators being brought to justice is very low, regardless of the circumstances or evidence. And it is reported municipal authorities have covered up and facilitated violence against women by refusing to conduct adequate investigations. The NDP further notes that the judicial system is hindered by procedural failures that invalidate claims and complainants, in many cases, law enforcement sides with the attackers.

[20]     I find that the above evidence and the claimant’s credible testimony is clear and convincing in demonstrating that adequate state protection would not be available to the claimants in Mexico.

[21]     I have also considered whether a viable internal flight alternative exists for the claimants in Mexico. In the evidence before me, I find there is a serious possibility of persecution throughout the country. The director of Queer Research stated that Mexico City in Guadalajara are gay friendly zones, and this is at Item 6.4. However, the same source indicates that Transgender Law Centre and Cornell University Law School, LGBT clinic reports the police harassment against the LGBT community remains high in Mexico City. The same source indicates that the highest number of complainants for discrimination were filed in Mexico City and that there are, “police officers who look for any way to intimidate or extort couples wherever they are.” This is, again, at Exhibit 6.4.

[22]     Further at a national level, 64.4 percent of people aged 18 or older felt there was, “little to no justification for two (2) people of the same sex to live as a couple.” These numbers are better in Mexico City, but still only at 40.5 percent. This same source indicates that Mexico City is by far the most progressive city in Mexico. However, hurdles remain in finding full inclusion, and violence remains an issue, with 81 percent of respondents considering discrimination exist towards gay community members. This is at Item 6.2.

[23]     With respect to the claimant’s gender-based claim, I note that the single women are vulnerable to discrimination in various sectors, including social labour, family, and employment opportunities. Exhibit 3 Item 5.7 indicates that women who leave abusive partners face numerous difficulties in obtaining employment and are more likely to face discrimination in wages, working hours, and benefits. The claimants also testified to the agent of persecution being motivated and having the means to locate them in Cancun and Mexico City.

[24]     I find that the internal flight alternative fails, and a viable internal fight alternative does not exist for the claimants in Mexico.

[25]     Based on the totality of the evidence before me, I find that each of the claimants have established a subjective and objectively well-founded fear of persecution in Mexico on a forward-looking basis. They would have no adequate state protection or viable internal flight alternative. There is a serious possibility of being subjected to further persecution should they return, and I find them both to be Convention refugees. Both of their claims are therefore accepted.

——— REASONS CONCLUDED ———