Citation: 2021 RLLR 62
Tribunal: Refugee Protection Division
Date of Decision: June 8, 2021
Panel: Steve Rudin
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Mexico
RPD Number: TC0-03401
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
[1] MEMBER: So, sir, I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. Now, in the event that written reasons are provided, they may be edited for spelling and grammar, and applicable references to documentary evidence, as well as case law may also be included.
[2] XXXX XXXX XXXX XXXX is claiming refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.
[3] The complete story alleging the basis of the claimant’s fear is captured in the claimant’s very detailed Basis of Claim Form and amendments, which can be summarized as follows:
[4] Claimant alleges that he fears returning to Mexico because he will face persecution or harm based on his sexual orientation.
[5] Growing up as a child in a Catholic family in Merida in the State of Yucatan, Mexico, the claimant alleges that at an early age he realized that he was gay, but could not freely express his homosexuality in a society that he described as homophobic.
[6] The claimant alleges that he has been forced to supress his attraction to other men because he never felt safe or comfortable to do so. As well, he was urged by his family to participate in masculine activities such as sports.
[7] The claimant maintains that he was often the subject of ridicule in school where he was accused of exhibiting feminine behaviours.
[8] When he was eight years old the claimant disclosed in confession his preference for males to his priest who told him that there was something terribly wrong with him, and that if he was gay he would go to hell.
[9] Based on pressures from family, school, and church, the claimant alleges that he considered suicide, but did not have the courage to act on that impulse.
[10] Although there were constant rumours about the claimant’s sexual orientation, he never admitted to being gay.
[11] In January of 2004, claimant enrolled in an XXXX program. After graduation in 2009, he began to work at the XXXX XXXX XXXX XXXX XXXX XXXX It was there that the claimant alleges he learned that although there were prohibitions against discrimination based on sexual orientation, homophobic views among managers and employees were still prevalent.
[12] Based on the culture the claimant felt at XXXX, he left in 2010 and took a position at XXXX in Merida, Mexico where he alleges he confronted the same homophobic attitudes.
[13] In July 2017, the claimant began to attend therapy from a XXXX XXXX XXXX.
[14] In October of 2010, the claimant alleges he was invited to a party by his manager, Did not want to attend, and is because of his refusal to attend his co-workers came to his home and physically assaulted him. The claimant called police who attended and were told by the claimant’s attackers that he had inappropriately touched them, and according to the claimant he was told by the police that he deserved what he got. He received medical treatment for his injuries. Filed a complaint with the company but received no response.
[15] Upon the recommendation of his psychologist in January 2019, the claimant quit his job and in February 2019 traveled to Toronto, Canada where he attended a one month English as a second language program. While in Canada, the claimant observed that the Canadian society appeared to be far more accepting of the LGBTIQ community, and extended his visitor’s visa until January 2020.
[16] The claimant alleges that he was unaware that his sexual orientation was a ground to make an application for refugee protection, and was only in October 2019, when he happened to run into a Spanish speaking man that he learned that the individual was also gay, and connected him to Culture Link who assisted the claimant in obtaining legal services and making his application for refugee protection in January of 2020.
[17] Counsel, this is the part that I think you may want to interpret to the claimant.
[18] For the following reasons, on a balance of probabilities, the panel finds that the claimant would face a serious possibility of persecution on a Convention ground and therefore the panel finds that the claimant is a Convention refugee and has a well-founded fear of persecution should he return to Mexico.
[19] I will … I will now, hopefully briefly, provide the reasons for making this determination.
[20] On a balance of probabilities, I find that the claimant is a citizen of Mexico. The claimant established his citizenship by providing a copy of his passport issued by the Government of Mexico.
[21] The hearing was conducted by video-conference, thus, I did not have an opportunity to review the original passport or other documents. However, I note that there are no concerns raised by any of the officials who had access to the original documents.
[22] In assessing this claim I focused on the credibility of the claimant’s allegations. The risk of harm he might face upon his return to Mexico because of his sexual orientation.
[23] I’m cognizant of the difficulties that any claimant faces in establishing a claim. These include the cultural factors, the stress of responding to oral questions through an interpreter, and this is compounded by the fact that this hearing was held remotely using Microsoft Teams, which claimant and counsel had agreed to.
[24] I also considered the Chairperson’s guidelines on sexual orientation, gender identity and expression when conducting this hearing and assessing the facts in this case, such as the social, cultural context in which the claimant found himself.
[25] Given the sensitive nature of some of the allegations, my questions were hopefully asked in a sensitive and respectful manner.
[26] I also considered the psychological assessments that were provided by both Dr. XXXX XXXX(sic) in Mexico, and those of Dr. XXXX XXXX conducted here in Toronto.
[27] For the following reasons I find the determinative issue in this case to be credibility and the claimant’s sexual orientation. As well, discussed were the issues of State protection and internal flight alternative, the claimant’s delay in making his claim, and the risk of persecution or harm the claimant would face should he return to Mexico.
[28] In assessing the claimant’s credibility, an issue which is identified in any matter which comes before the Board, I was mindful of the Maldonado decision, which in part says that when a claimant swears to the truth of certain allegations this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.
[29] I found that the claimant testified in a credible manner. His … there were no relevant inconsistencies in his testimony or contradictions between the testimony and other evidence that was before me. Find that the claimant testified in a spontaneous and detailed fashion.
[30] Regarding the claimant’s sexual identity. I … I note that it is difficult to definitively establish an individual’s sexual orientation. However, on a balance of probabilities, I find that the claimant has established that he his a … a homosexual male. This finding is based on the claimant’s testimony, his detailed personal feelings and experiences, the relationships that he identified, as well as the letters and photographs that the claimant provided.
[31] Also, I accept the explanations for the lack of witnesses. Among them the claimant’s initial partner in Canada, as well as his psychologist in Mexico.
[32] Regarding the delay in claim, I accept that the reasons for this delay were precipitated by his lack of understanding of the system. I do have some concerns that he might not have raised the issue earlier on in his stay of Canada. However, on a balance of probability, I accept as reasonable his explanation for the delay.
[33] Regarding the risk of persecution or harm that the claimant fears, I … I note that the Federal law prohibits the discrimination of LGBTIQ individuals. However, as counsel pointed out in his very thoughtful and detailed submissions, the law is always not fully implemented.
[34] Therefore, although Mexico has taken steps towards equality, there are significant cultural and legal barriers that continue to exist.
[35] According to the objective documentary evidence, and this is in both counsel’s package as well as the Board’s NDP, specifically in the chapters 2.1 which is the DOS report, and chapter 6 regarding sexual orientation, machismo is still embedded in Mexico culture, which increases homophobia and discrimination against sexual minorities.
[36] This is certainly more prevalent in smaller towns and larger cities, although the acceptance is certainly not uniform.
[37] And there is evidence that is provided that indicates that there is violence and discrimination ever present in the Mexican society, as well as among Mexican families, and as the claimant had testified, his family are observant practices … practitioners of the Catholic faith, consistent with the claimant’s testimony,
[38] The objective evidence also indicates that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity. Further, sexual minority students reported discrimination and harassment based on their gender identity. As well, sexual minorities have experienced discrimination as the claimant describes in the workplace.
[39] Based on this systemic discrimination and the incidents of discrimination and harassment that the claimant has experienced, I do find that the cumulative effect of these acts of discrimination and harassment do rise to the level of persecution.
[40] Considering the aspect of State protection. As counsel pointed out in his submissions, adequate and effective separate does not exist uniformly throughout Mexico, and it even in jurisdiction where there’s some safe havens for the LGBTQI community, this is not uniformly practiced outside of that particular bubble.
[41] As well in the issue of internal flight alternative, I find that the … the panel … that the claimant would face a serious possibility or certainly more than a mere possibly of persecution should he attempt to locate in Mexico City.
[42] As well, as the claimant testified, he would be able to find work and a place to live, but this would not protect him from facing again, persecution or potential harm in Mexico City. This in spite of the fact that there are gay friendly areas.
[43] So, based on the preponderance of evidence, the claimant’s testimony is very consistent with the objective evidence that is provided in the National Documentation Package.
[44] So, based on the preceding reasons and the totality of the evidence and cumulative findings that I have just indicated, I find that the claimant has satisfied the burden of establishing that he faces a serious possibility of persecution should he return to Mexico, and therefore find that the claimant is a Convention refugee and his claim is accepted.
[45] So, that effectively concludes the hearing, unless you would like to explain to the claimant what has transpired. I think … just judging from his reaction I think he understands what’s been said.
[46] CLAIMANT: Yes. Thank you.
———- REASONS CONCLUDED ———-