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2019 RLLR 142

Citation: 2019 RLLR 142
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: D. D’Intino 
Counsel for the Claimant(s): Gabriella B Uteras Sandoval
Country: Mexico
RPD Number: TB9-00090
ATIP Number: A-2021-00256
ATIP Pages: 0000133-000139


DECISION

[1]       MEMBER: Alright so just let me get started here. Okay so this is my decision with respect to the claim of [XXX] File number TB9-00090. I just want to alert you sir that you are going to get a written copy of these reasons and as will your counsel and there may be some changes with respect to grammar, syntax and additional references to documentary evidence.

[2]       The claimant is a citizen of Mexico and claims refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I have considered the chair person’s Guideline 9 in this claim which relates to sexual orientation, gender identity and expression. I am required to consider these guidelines and I find them helpful.

[4]       I have considered your testimony sir and the country documentation for Mexico and the documentation you have provided and this is my decision.

DETERMINATION:

[5]       I find that the claimant is a Convention refugee on the grounds of membership in particular social group gay men. As I have made a positive determination on this ground I need not go on to analyze your claim under Section 97.

ALLEGATIONS:

[6]       Your allegations are fully set out in your basis of claim form which is Exhibit 2, in summary you have testified that you fear persecution in Mexico because of your sexual orientation and as well your HIV positive status.

[7]       You further allege that there is no adequate state protection for you in Mexico nor is there an internal flight alternative that is both safe and reasonable for you because the persecution you fear exists throughout all OF Mexico.

IDENTITY:

[8]       Your personal identity as a citizen of Mexico is established on a balance of probabilities by your testimony and by your Mexican passport which is Exhibit 1.

NEXUS:

[9]       The claimant has a number of potential nexus’s to the convention, for example as I mentioned as a gay man or as a gay man who has HIV positive status. I will accept you claim simply on the basis of your sexual orientation.

[10]     Under Section 96 the test is whether there is a serious possibility of persecution on this ground should you return to Mexico and I find that you have met this test.

CREDIBILITY:

[11]     You affirm to tell the truth in your testimony today; you confirmed that you likewise affirmed to tell the truth when you completed your basis of claim form. When a witness swears or affirms to tell the truth this creates a presumption of truthfulness unless there is evidence to the contrary.

[12]     I find that you were a credible witness. Your evidence was consistent, logical, clear and supported by highly probative documentary evidence. The evidence you gave me today and what you wrote in your narrative can be very briefly summarized as follows.

[13]     You were born and raised in Agua Linda Puebla Mexico. That growing up you were verbally assaulted and discriminated against because of choice of dress or the way you spoke which other people determined to be feminine.

[14]     You realized that you were gay from a young age and had your first relationship with a same sex partner around the age of twelve. When you moved away from home and got a job with [XXX] you were told by your boss that he did not want you to be hired because he did not want gay people working there.

[15]     On a number of occasions you were physically and verbally assaulted because of your sexual orientation. You told me about one robbery in particular where your wallet and your phone were taken and the thieves told you they had been following you and your partner and the demanded your pin, they indicated that they knew where you lived and where you worked and that they were watching you.

[16]     You came to Canada in [XXX] 2018 and subsequently claimed refugee protection. When you told your parents about your sexual orientation they had a difficult time accepting it and have still not fully accepted it as they hold out hope that you will one day have a family with a woman.

[17]     While in Canada you were diagnosed with HIV. You are currently in receipt of medical treatment and counselling. You do not believe you can return to Mexico and live openly and safely anywhere in the country as a gay man who is HIV positive.

[18]     You fear that you will not have access to your medication without which it would lead to the development of the AIDS virus and place your very life at risk.

[19]     So that is a very condensed version of your testimony and your narrative.

OBJECTIVE DOCUMENTARY EVIDENCE:

[20]     Conservative attitudes prevail in Mexico and public displays of affection between same sex partners are not considered socially acceptable and that is reflected in Item 6.2 of the NDP and Item 6.1.

[21]     Furthermore in Item 6.1 and I quote from the US Department of State report for 2017 “discrimination based on sexual orientation and gender identity was prevalent despite a gradual increase in public tolerance of LGBTQ individuals according to public opinion surveys”.

[22]     In one report information was published according to which one thousand three hundred and ten cases of killings of LGBTQ person’s motivated by homophobia were committed in Mexico between 1995 and April 30th 2016. Forty four of those killings occurred in 2015 and fifteen in the first portion of 2016.

[23]     In the last ten years in Mexico there has been an average of seventy one homicides a year of LGBTQ persons. The UN special repertoire on extra judicial or arbitrary executions noted “an alarming pattern of grotesque homicides of LGBTQ individuals and broad impunity for these crimes sometimes with a suspected complicity of investigative authorities”.

[24]     For example between January 2014 and December 2016 two hundred and two persons, sexual minorities were killed as a result of their sexual orientation or gender identity including a hundred and eight trans women, ninety three gay men and one lesbian woman.

[25]     The highest number of victims seventy six was recorded in 2016. Of the total two hundred and two victims thirty three of them showed signs of torture while fifteen showed signs of sexual violence. That is from Item 6.4 of the NDP.

[26]     From Items 6.2 I take the following two examples. On the 6th of May 2019 a group of six armed men attacked and robbed a shelter where eleven LGBTQ asylum seekers were staying setting the door of the shelter on fire.

[27]     The shelter’s legal representative informed Amnesty International that the men returned a few hours later shouting homophobic slurs and threatened to kill them if they did not leave the neighborhood.

[28]     According to the 2018 national study on discrimination against sexual and gender minorities in Mexico 41.8 percent of the respondents indicated that they did not believe that adequate public healthcare services were available for sexual minorities and 31.1 percent don’t even know if those services exist. The absence of adequate health services for sexual minorities is a noted problem in Mexico.

[29]     Furthermore in February 2019 the Federal Government noted, announced that it would no longer fund civil society organizations for activities such as outreach or HIV testing. Mexico city has the highest number of documented HIV cases in all of Mexico, despite these high infection rates medical treatment for HIV and AIDS is largely unavailable in less urban areas due to cost.

[30]     Even in areas that have free anti retro viral drugs they are usually reserved only for the sickest people. Many in Mexican society hold misconceptions about the LGBT community and HIV that further contribute to the widespread stigma associated with both HIV and LGBTQ persons.

[31]     A national survey of Mexicans found that fifty nine percent believe that HIV/AIDS is caused by homosexuality. These misconceptions and stigmas exist even among medical providers in Mexico. In fact most hospitals view homosexuality as a risk factor for HIV and often discriminate against those who seek treatment.

[32]     The Commission on Human Rights in Mexico City also reported that HIV and AIDS clinics often actively mistreat and discriminate against LGBTQ persons living with HIV or AIDS. That is from Item 6.3 of the NDP.

[33]     Claimant’s Exhibit 5 contains letters from family and friends as well as medical documentation which confirm all of the core allegations underpinning the claimant’s claim, including his sexual orientation and HIV positive status.

[34]     Relying on those items I find that there is a strong objective basis for the fear you have of being persecuted in Mexico. I also found that you subjectively fear persecution, outright violence or death in Mexico on the basis of your sexual orientation and your HIV status. Therefore I find that your fear is well founded.

STATE PROTECTION:

[35]     States are presumed to be capable of protecting their citizens but this presumption is rebuttable with clear and convincing evidence.  The NDP for Mexico quoting a number of nongovernmental organizations indicate that there are high levels of distrust in the authorities and that rights for gay people are still treated as exceptions to be granted at the discretion of local officials.

[36]     According to the US country reports for 2016, civil society groups claimed police routinely subjected LGBTQ persons to mistreatment while in custody.

[37]     According to several sources the judicial system is not effective in investigating crimes committed against sexual minorities.

[38]     Furthermore there is evidence that state actors have been and continue to be involved in forced disappearances and extra judicial killings adding to the reasons why LGBTQ persons would fear approaching the state for protection and the reference for that, references Item 2.1of the NDP at Page 4.

[39]     Another example from the NDP on August 5th of 2017 an eighteen year old man was beaten to death by a group of ten taxi drivers who worked at a taxi stand outside a gay bar in San Luis Potosi. Local human rights defenders claim the killing was a hate crime because the victim was attacked due to his sexual orientation.

[40]     The President of the San Luis Potosi state commission for human rights agreed with that. Advocates also argued negligence in investigating the case due to homophobia in the police. As of October 2017 no one had been arrested in connection with the killing. That is from Item 2.1.

[41]     From Item 6.1 according to an organization called Collectivo Leange(ph). Officials from the public ministry often mistreat LGBTQ persons and refuse to open investigations for crimes against them.

[42]     Furthermore despite the training provided to judicial authorities on sexual diversity there is still a lot of intimidation and threats against the LGBTQ population due to what they perceive as faults against morals which are then used to extort members of the LGBTQ community.

[43]     This is but a small sample of the documentation in the NDP and in the claimant’s country conditions documentation which support my conclusion that Mexico is unable or unwilling to provide protection to individuals like this claimant.

[44]     I found all, sorry I found the claimant to be credible. I find that the objective evidence supports the claimant’s evidence and that it demonstrates on a balance of probabilities adequate state protection for you in Mexico would not be reasonably forthcoming.

INTERNAL FLIGHT ALTERANTIVE:

[45]     I purpose Mexico City as an internal flight alternative outside of Puebla that I believed would be safe and reasonable in the claimant’s circumstances. For the following reasons I find that the claimant would face a serious possibility of persecution on the grounds of his sexual orientation in Mexico City and therefore the internal flight alternative location fails the first prong of the analysis.

[46]     The first prong of the analysis asks whether there is a serious possibility of persecution or a Section 97 risk on a balance of probabilities in Mexico City.

[47]     Item 6.4 of the NDP which is a response to information request on Mexico City depicts Mexico City as the most progressive area in Mexico concerning LGBTQ rights. For example there was a first district in Mexico to allow legal same sex marriage and to allow a person to change their gender identity.

[48]     One source that is quoted in this item talks about gay friendly zones or zones where the LGBTQ community feel safe from being abused. However they note that there are police officers that look for anyway to intimidate or extort same sex couples wherever they are.

[49]     The UN special repertoire on extra judicial or arbitrary executions notes that there remains broad impunity for crimes against the LGBTQ community.

[50]     According to a report by the transgender law society and Cornell University Law School, LGBTQ clinic, police harassment against the LGBTQ community remains high in Mexico City.

[51]     A 2016 report indicates that out of four hundred and twenty five person’s interviewed, one hundred and thirty nine reported some form of abuse by authorities including delays in or refusal to provide services, violence and insults. That comes from Item 6.4.

[52]     Claimant’s Exhibit 5 at Tab 22 contains articles which describe a shortage of HIV/AIDS drugs which has not yet been resolved in Mexico placing the lives of thousands of people at risk.

[53]     Again these are but a few examples of the violence and persecution that gay people face on a daily basis and Mexico City does not appear to be as safe as it is socially liberal for the LGBTQ community.

[54]     Ultimately I find that the preponderance of evidence weighs in favor of finding that the claimant would face a serious possibility of persecution on a convention ground in Mexico City and throughout Mexico. Therefore I find that Mexico City is not a viable internal flight alternative for the claimant.

CONCLUSION:

[55]     I have considered your testimony, the documentary evidence and the country conditions documentation and I find that there is a serious possibility of persecution by Mexican society generally on the basis of your sexual orientation and your HIV positive status should you return to Mexico.

[56]     I therefore find you to be a Convention refugee under Section 96 and I accept your claim for protection.

[57]     That is my decision thank you very much. Thank you so it is 11:56 I have delivered my decision we will go off record thank you everyone.

———- REASONS CONCLUDED ———-