Citation: 2020 RLLR 129
Tribunal: Refugee Protection Division
Date of Decision: October 30, 2020
Panel: Lesley Mason
Counsel for the Claimant(s): Pablo Andres Irribarra Valdes
Country: Mexico
RPD Number: TB9-04265
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000084-000087
DECISION
On October 30, 2020 the Refugee Protection Division (RPD) heard the claim of [XXX] and [XXX], who claim refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral positive decision and Reasons for decision. This is the written version of the oral decision and Reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate.
[1] MEMBER: [XXX] and [XXX], I have considered your testimonies and the other evidence in your case, and I am ready to now give you my decision orally. You will receive a written copy of this decision, but it will be edited for any spelling, syntax and grammar before it is sent out to you.
[2] This is the decision of the claims of [XXX] and [XXX], who claim to be citizens of Mexico, and who seek refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.[1]
[3] The allegations that you make are fully set out in each of your basis of claim forms and amendments.[2] In summary, you each fear persecution in Mexico because you are gay men. You suffered physical, verbal, sexual abuse and discrimination. You allege that there is no location in Mexico where you could relocate and live safely.
[4] Your claims were joined as per Rule 55 of the Refugee Protection Division. Chairperson’s Guideline 9 was followed throughout this hearing.[3]
[5] The issues in your hearing were credibility, delay in claim, and internal flight alternative.
[6] Regarding your identities, I find on a balance of probabilities that you are who you say you are, and that you are citizens of Mexico. I base this finding on the passports you provided Canadian authorities,[4] and the voter identity cards you submitted as evidence.
[7] With regards to your credibility, your testimonies as to the circumstances of the problems you experienced in Mexico as a result of your sexual orientation were straightforward and spontaneous. Neither of you made any apparent attempts to embellish your claims.
[8] However, there were some obvious inconsistencies in the evidence provided by each of you between your narratives and your oral testimony this morning. I do have concerns about the omissions in your testimonies regarding dealings with the police and discrimination at work.
[9] Nevertheless, the information each of you provided in your testimonies is consistent with information you have given in your basis of claim forms. Some of these allegations are confirmed by the multitude of original documentation that you have provided to me.
[10] The personal documents include reference letters from friends and family, medical records, employment records, correspondence regarding human rights complaints in Mexico and in Canada, as well as photographs of various events that you have attended here in Toronto.
[11] Your personal documentary evidence is overwhelming, and I give it significant evidentiary weight.
[12] Regarding your delay in making claims for protection, you explained that it took a considerable time to gather useful information that finally led you to make claims for protection.
[13] I accept this explanation for the delay, and I make no adverse credibility findings against you.
[14] I therefore have considered the objective evidence in your case. Having considered the country condition documents, I find that the situation for you in Mexico is dangerous. Conservative attitudes prevail in Mexico. Public displays of affection are not considered socially acceptable.
[15] I rely specifically on three documents; 6.1, 6.2 and 6.4 in the national documentary package.[5] I also will mention that the United States Department of State report for 2020 indicates, and I quote, “Discrimination based on sexual orientation and gender identity was prevalent, despite a gradual increase in public tolerance of LGBTI individuals.”
[16] In 2016, Letra S, L-E-T-R-A and then “S,” which is an LGBTQ non-governmental organization, published information according to which 1,310 cases of killings of LGBT persons motivated by homophobia were committed in Mexico between 1995 and 2016. Over the past 10 years, there have been 71 homicides a year on average.
[17] A report from the UN noted the alarming pattern of grotesque homicides of lesbian, gay, bisexual and transgender individuals, and the broad impunity for these crimes, sometimes with the suspected complicity of investigative authorities.
[18] According to one report, trans women and homosexuals represent the group most affected by motivated physical assaults. There is considerable evidence about the number of people who belong to the LGBT community that have been killed over these last many years.
[19] Mexico City, where you’ve indicated that you lived for a short period of time, is regarded by some to be the safest place in Mexico to members of the LGBTQ community. The response to information request at 6.4 indicates that violence against LBGTQ (sic) persons in Mexico City is virtually unheard of. However, civil society groups claim that police routinely subjected LGBTI persons to mistreatment while in custody, and this information can also be found in the Department of State report.
[20] Your counsel has also provided considerable evidence with regards to the treatment of homosexuals in Mexico.
[21] I therefore find that there is a strong objective basis for the fear you have of being persecuted in Mexico. find that you have subjective fear of persecution, violence, and death in Mexico on the basis of your sexual orientation, and the objective evidence supports that subjective fear.
[22] I proposed Guadalajara as an internal flight alternative city in which you could potentially live openly as gay men. The response to information request I have mentioned earlier indicates that the members of the LGBT community in Guadalajara report feeling safe.
[23] However, you have made it clear that you do not feel safe anywhere in Mexico, and this is in part due to the discrimination against sexual minorities that is pervasive throughout the country.
[24] I note that the response to information request I’ve referred to provides information about the role of the Catholic church in exacerbating homophobia and transphobia in Mexico. It is the influence of the church that has stubbornly impeded the efforts of the government in Mexico to protect and guarantee equality and protection for the LGBTQ community. While the response lists Guadalajara from one source as being a safe place for sexual minorities, I find there is more overwhelming evidence that gay men are frequently targeted everywhere in Mexico by state and civilian actors alike.
[25] I also note that you testified that you would be discriminated against by the medical community when dealing with your HIV status, as you’ve experienced in the past.
[26] Relying on the documentary evidence I’ve referred to, I find that there is no viable internal flight alternative in Mexico that is both safe and reasonable for you in all circumstances. The serious possibility of persecution that you face is endemic throughout Mexico, and I therefore find that there is no place in the country that you could live openly as gay men and be safe.
[27] I have considered your testimonies, your documentary evidence, and the country conditions, and I find that there is a serious possibility of persecution on a convention ground, if you were to return to Mexico.
[28] I therefore find that you, [XXX] and you, [XXX], are convention refugees, and I accept your claims. I wish you well.
———- REASONS CONCLUDED ———-
[1] The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sections 96 and 97(1).
[2] Exhibits 2.1, 2.1, and 13.
[3] Chairperson’s Guideline 9: Proceedings Before the IRE Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
[4] Exhibit 1, Package of information from the referring CBSA/IRCC.
[5] Exhibit 3, National Document Package (NDP) for Mexico – September 30, 2020 Version.