2023 RLLR 12
Citation: 2023 RLLR 12
Tribunal: Refugee Protection Division
Date of Decision: December 19, 2023
Panel: Kevin Cantor
Counsel for the Claimant(s): Maxim Gutsan
Country: Mexico
RPD Number: TC2-38008
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: The claimant, XXXX XXXX XXXX XXXX is a citizen of Mexico. The claimant is seeking refugee protection pursuant to sections 96 and subsection 97(1) of the Immigration and Refugee Protection Act. In deciding this claim, I have taken into consideration the chairperson’s Guideline 9 proceedings before the IRB involving sexual orientation and gender identity and expression.
[2] Briefly, the claimant is a 25-year-old male. The allegations are contained in the original Basis of Claim form and the amended BOC or Basis of Claim form. In summary, the claimant alleges that he was asked by the Jalisco New Generation Cartel known as CJNG to transport and courier drug shipments in the vehicles owned by his family business. The claimant refused and was threatened with death on an immediate basis if he did not comply. In addition, in his amended BOC, the claimant alleges that he fears persecution in Mexico due to his sexual orientation as he is attracted to men. I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA.
[3] The claimant’s personal identity and Mexican citizenship has been established on a balance of probabilities as per a copy of his Mexican passport contained on the record as well as his testimony there. In assessing the credibility of the evidence presented by the claimant, the panel refers to the Federal Court of Appeal in Maldonado, wherein the court stated in part that when a claimant swears to tell the truth of certain allegations, this creates a presumption that those allegations are true unless, there would be a reason to doubt their truthfulness. I found the claimant’s testimony to be credible with regard to his sexual orientation. The allegations of criminal behavior by the cartel against him are criminal in nature and would normally be assessed under subsection 97(1) one of the IRPA. However, I find that the claim succeeds based on the claimant’s sexual orientation. Therefore, I do not need to analyze the cartel issues in my reasons. As previously stated, I found his testimony regarding his sexual orientation to be straightforward, spontaneous, genuine, and credible. There was no notable contradictions within the testimony or between the testimony and the documentary evidence. The claimant testified on how he grew up in a traditional society where sexual minorities were unable to freely express themselves.
[4] The claimant had to suppress his sexual orientation to avoid harm. The claimant’s father learned of his sexual orientation indirectly while the claimant still lived in Mexico and was not supportive and in fact quite abusive. The claimant’s mother, who now resides in Canada, has provided a letter attesting to the claimant’s sexuality and has been noted to be more supportive in that regard concerning his son. The claimant testified that he is currently in a relationship with a man, and he provided testimony on the nature of that relationship and the activities that he and his partner do. I accept that the claimant is in a relationship with a man. He also testified on how he fears discrimination, harassment, and violence in Mexico, especially because he is attracted to men. The claimant has supported personal disclosure in support of his claim, including a letter from his current partner, corroborating the relationship. In addition, there are several letters in the disclosure package corroborating his sexual orientation from friends as well as a sister. As well, there is a letter of engagement from XXXX XXXX, evidencing the claimant’s involvement in the LGBTQ community. He is attending programs in that regard, the documentary evidence is in line with his allegations. I have no reason to doubt the trustworthiness or the reliability of these documents. Therefore, I give his disclosure full weight in corroborating the allegations around his sexual orientation. I find that the claimant has established a subjective fear of persecution based on his credible testimony and evidence with respect to his sexual orientation. The claimant fears discrimination, harassment, and violence in Mexico from segments of the population who are prejudiced. The panel or I also considered the country conditions of Mexico for members of sexual orientation.
[5] Persecution generally involves sustained or systemic violation of basic human rights. In some cases, however, even a single transgression of the individual’s human rights, if severe enough, may constitute persecution. The chairperson’s guideline-9 states that the following instances of discrimination may cumulatively amount to persecution, restrictions on access to employment, restrictions on access to health care, restrictions on access to housing, being targeted, or repeated acts of intimidation. The National Documentation Package (NDP) states that Mexico has a quote machismo culture where any sign of femininity in men is viewed as problematic. Legislation is in place to protect sexual minorities, although they continue to experience discrimination, harassment, and violence. There have been some improvements in social societal tolerance of LGBTQ individuals in recent years. The international gay, lesbian, bisexual, trans, and intersex association report indicates that 52% of survey respondents strongly disagree with the statement that being an LGBTQ person should be a crime, while only 8% agree with this statement. 81% of respondents stated that they had no concerns with LGBTQ individuals, while 8% stated they should that they would be very uncomfortable. The 69% of the survey respondents believe that homosexuality should be accepted in 2019, which represents a 15% increase from 2002. The same source states that 49% of the respondents opposed same-sex marriage and there was a strong opposition to adoption to same-sex couples. Public opinion polls indicate that attitudes as well towards transgender people are mixed. For example, 83% of the respondents agree that transgendered people should be protected from discrimination by the government; however, only 66.6% agreed that transgender people should be allowed to marry a person of their birth sex.
[6] The country condition evidence indicates that sexual minorities experienced violence in Mexico. Between 1995 and 2014, there was a total of 1218 murders in Mexico, due to the victim’s real or perceived sexual orientation. There were 976 male victims, 226 transgender victims, and 16 female victims. The country conditions indicate that gay men and transgender women are at a higher risk of violence than other categories of LGBTQ individuals, such as lesbians. The NDP states that LGBTQ individuals are mistreated by state authorities. Police selectively apply public indecency laws to prosecute sexual minorities, especially transgender individuals. Sensitivity training has been provided to police officers in some parts of Mexico to promote police empathy towards different vulnerable communities. Further, the NDP states that crimes against LGBTQ individuals are not always investigated and punished. The country conditions indicate that state actors commit abuses against members of the LGBTQ community. The NDP evidence suggests that discrimination and employment is still a problem in Mexico. LGBTQ individuals generally have access to employment if they behave in a discreet manner. For those who are open about their sexual orientation, they are more likely to face discrimination. The NDP item 6.1 indicates that 37% of gay men surveyed stated that HIV testing was a condition of employment for them. While there are antidiscrimination laws in Mexico aimed at protecting LGBTQ individuals, it is evident that employers still use discriminatory tactics to target sexual minorities. Members of the LGBTQ community face discrimination when it comes to housing. According to the NDP, 30% of women and 35% of men would not rent a room in their home to a gay or lesbian individual.
[7] According to the latest Department of State reports, there were reports that the government did not always investigate and punish those complicit in abuses against sexual minorities. Furthermore, there is evidence that state actors have been and continued to be involved in forced disappearances and extrajudicial killings, adding to the reason why LGBTQ persons would fear even approaching the state for protection. I find that the objective evidence presented demonstrates that adequate state protection would not be available to the claimant in Mexico. During the hearing, I proposed that Mexico City would be a potential Internal Flight Alternative for the claimant, in order to determine whether a viable IFA exists, the panel must consider a two-pronged test. The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the country to which it finds an IFA exists. The condition in that part of the country to be considered an IFA must be such that it would not be reasonable in all circumstances, including those particular to the claimant, for him or her to seek refuge there. The claimant bears the burden of proof to show that they face a serious possibility or a reasonable chance of persecution in the entire country and specifically in the potential IFA areas named.
[8] During the hearing, when I asked the claimant whom he feared, he testified that he feared homophobic individuals and that the police often target homosexual people for robberies, assaults, and murder, despite Mexico City having a reputation as one (1) of the more gay friendly areas in Mexico. I do note that the objective evidence indicates that in Mexico City, there is greater tolerance of sexual minorities at least in select districts of the city. Despite this evidence, I find that under particular circumstances of the claimant, having considered all of his testimony and the threat of harm to him, and I find that the threat of harm would not be reduced to the extent that there would be no serious possibility that he would face persecution for reasons of his sexual orientation by relocation to the proposed IFA of Mexico City. I find that under the particular circumstance of this case, country information suggests that gay men are frequently targeted in Mexico by state and civilian agents for serious harm, and it indicates that there is a serious possibility that this claimant would face persecution throughout Mexico. The claimant could not live as an openly gay man in Mexico City without fear of attacks from members of society. Furthermore, I find that the claimant faces a serious possibility of persecution throughout Mexico. I find that it is not necessary to make a determination of the second prong of the IFA test as to whether the claimant’s relocation there would be reasonable under all the circumstances. In his particular circumstances, there is no viable IFA option available to him in Mexico.
Having considered all the evidence, I find that there is a serious possibility that the claimant would face persecution in Mexico for reasons of his sexual orientation and belonging to the social group of homosexual males. Therefore, the panel or I find that the claimant is a Convention refugee pursuant to section 96, and his claim for refugee protection is accepted.
——— REASONS CONCLUDED ———