2023 RLLR 13

Citation: 2023 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: May 5, 2023
Panel: Tim Crowhurst
Counsel for the Claimant(s): Karen Klouth
Country: Mexico
RPD Number: TC3-00379
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: These are the reasons and decision in TC3-00379, of a claim by XXXX XXXX XXXX, the claimant, who is a citizen of Mexico and who seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, IRPA.

ALLEGATIONS

[2]       The specifics of the claim are set out in detail in the claimant’s Basis of Claim form, BOC, contained on the record. The claimant is a single 38-year-old male. His sexual orientation is that of an openly gay man. Following a brutal attack based on his sexual orientation, he fled to find a safe haven. While in Canada, being supported by his family members who remained in Mexico, he became aware of the possibility of claiming refugee status and he made an inland refugee claim in November 2021.

Guidelines Consulted

[3]       The Chairperson’s Guideline 9 for SOGIESC persons were taken into account when considering the process of the hearing and the facts in this case. All relevant factors such as the social and cultural context, in which the claim found himself, were examined with consideration of the Chairperson’s SOGIESC Guidelines.

DETERMINATION

[4]       The Panel finds the claimant is a Convention refugee pursuant to section 96 of IRPA based on his membership in a particular social group being a homosexual male.

ANALYSIS

Identity

[5]       The claimant’s personal identity and Mexican citizenship have been established, on a balance of probabilities, as per a certified true copy of his passport.

Credibility

[6]       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 the truth of certain allegations, this creates a presumption that those allegations are true, unless there be reason to doubt their truthfulness.” The Panel found that the claimant provided his testimony in a straightforward manner. The Panel finds, on a balance of probabilities, that the claimant is a homosexual male and that he has established his fear of persecution based on his sexual orientation.

[7]       Moreover, with regard to overall credibility and the credibility of the claimant’s subjective and objective fear of violence perpetrated against him. The Panel found that the claimant was succinct in all of his responses to questions posed to him by the Panel. In short, the Panel found the claimant to be a highly credible witness.

Country Conditions

[8]       The Panel also consider the country conditions in Mexico for members of sexual minorities. The Panel notes that conservative attitudes prevail in Mexico and public displays of affection are not considered socially acceptable, as noted in Item 6.1 and 6.2 of the National Documentation Package for Mexico. The DOS report, Department of State report, provides the following information. “Discrimination based on sexual orientation and gender identity was prevalent despite a gradual increase in public tolerance of LGBTI individuals according to public opinion surveys.” A CNDH poll conducted during the year found six (6) of every 10 members of the LGBTI community reported experiencing discrimination in the past year and more than half suffered hate speech and physical aggression.

[9]       In the independent documentary evidence, the following is stated. In 2016, Letter S (ph), which is an LGBTQ non-governmental organization, published that 1,310 cases of killings of LGBTQ persons, motivated by homophobia, were committed in Mexico between 1995 and 2016. 44 of them in 2015 and 15 in 2016. In the last 10 years, there have been 71 homicides a year on average. The previously referred to RIR indicates the following. The United Nations special rapporteur on extrajudicial and or arbitrary executions 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.

[10]     According to the CEAV, which is the Executive Commission of Attention to Victims and Fundación Arcoiris report, transwomen and homosexuals represent the group most affected by hate motivated physical assaults. Furthermore, the RIR provides the following information. Between January 2014 and December 2016, 202 sexual minorities or persons perceived as such were killed as a result of their sexual orientation or gender identity or expression, including a 108 transwomen, 93 gay men and one (1) lesbian woman. I will not continue with the details of all the particular murders that have happened throughout Mexico. There — they were numerous. A more updated RIR indicates a worsening situation of targeted violence against LGBTQ individuals throughout many regions of the country. In its annual report on extreme violence against sexual minorities, the organization Letter S Aids Culture and Daily Life, indicated that more LGBTQ individuals were killed in 2017 and 2018 than in previous years for reasons believed to be due to their real or perceived sexual or gender identity.

[11]     The documentary evidence indicates that the claimant’s fear of persecution for reasons of his sexual orientation is objectively well-founded.

State Protection

[12]     With regard to state protection, the RIR indicates the following. The Supreme Court of Justice of Mexico issued in 2014 a protocol for judges on the adjudication of cases involving sexual minorities. The protocol, while not legally binding, provides tools to assist judges to identify and eliminate stereotypes and social misconceptions during the decision-making process, and ensure access to justice for sexual minorities. Sources indicate that despite special procedures and policies of institutions to protect minorities, they do not necessarily, effectively, protect them in practice. According to sources, the judicial system is not effective in investigating crimes committed against sexual minorities. The researchers stated that if someone had been threatened by a gang, they can file a complaint with the judicial authorities but that does not translate into any special protection, unless they have already been victim of a crime and they have been threatened again. This is particularly problematic for LGBTQ persons who are at risk.

[13]     The 2016 CEAV and Fundación Arcoiris report indicates that there are low levels of reporting crimes. The researchers stated that less than 10 percent of crimes committed in Mexico are solved and in the case of homophobic crimes, even people who are found guilty are set free. According to the latest Department of State, DOS, report, 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 continue to be involved in forced disappearances and extrajudicial killings adding to the reasons why LGBTQ persons would fear even approaching their state for protection.

[14]     During the hearing, the Panel asked the claimant if he felt he would be protected by the police. The claimant testified that he feared that if he needed their protection, they would not assist him and testified that he has sought protection in the past and has not been supported. The Panel finds that the claimant’s testimony and the objective evidence presented demonstrate that adequate state protection would not be available to the claimant in Mexico.

Internal Flight Alternative, IFA

[15]     During the hearing, the Panel proposed Puerta Vallarta and Mexico City as potential IFAs. In order to determine whether a viable IFA exists, the Panel must consider a two (2) pronged test. The basis for this test is the cases of Rasaratnam and Thirunavukkarasu. The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the appellant being persecuted in the part of the country to which it finds an IFA exists. Conditions in that part of the country, considered to be an IFA, must be such that it would not be unreasonable, in all circumstances, including those particular to the appellant, for him or her to seek refuge there. Claimants bear the burden of proof to show that they face a serious possibility or reasonable chance of persecution in the entire country and specifically in the potential IFA areas named.

[16]     During the hearing, when asked whom he feared, the claimant testified that he feared homophobic persons in society and random physical assaults throughout the country. The claimant’s testimony about the police is supported by information contained in the National Documentation Package. One (1) Response to Information Request states, “According to the US country reports 2016, civil society groups claim that police routinely subjected LGBTI persons to mistreatment while in custody. The Executive Commission of Attention to Victims report indicates that at least one (1) out of 10 people surveyed has been detained and that abuse during detention was evident including physical violence, arbitrary detention and due process violations. According to the report by the transgender law centre in Cornell University Law School LGBT Clinic, police harassment against the LGBT community remains high in Mexico City.

[17]     The Panel notes that objective evidence indicates that in Puerta Vallarta and Mexico City there is greater tolerance of sexual minorities, at least in select districts of the regions. Despite this evidence, the Panel finds that, in the particular circumstances of the claimant, having considered all of his testimony that the threat of harm to him 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 his relocation to the proposed IFA locales. The Panel finds that, under the particular circumstances of this case, country information indicates that gay men are frequently targeted in Mexico by state and civilian agents for serious harm, which indicates that there is a serious possibility that this claimant would face persecution throughout Mexico. The claimant could not live openly as a gay man Puerto Vallarta or Mexico City without out fear of attack from members of society. Further, the Panel finds that the claimant faces a serious possibility throughout Mexico.

[18]     The Panel finds that it is unnecessary to make determination on the second prong of the IFA test as to whether the claimant’s relocation there would be reasonable under all the circumstances. In the particular circumstances of this claimant, there is no viable internal flight alternative available to him in Mexico.

CONCLUSION

[19]     Having considered all the evidence, the Panel finds 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 finds that the claimant is a Convention refugee pursuant to section 96 and his claim is accepted. And that concludes the reasons.

——— REASONS CONCLUDED ———