2023 RLLR 14

Citation: 2023 RLLR 14
Tribunal: Refugee Protection Division
Date of Decision: September 14, 2023
Panel: Tim Crowhurst
Counsel for the Claimant(s): N/A
Country: Mexico
RPD Number: TC3-09187
Associated RPD Number(s): TC3-09188
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: It is 10:51 a.m. and these are the reasons and decision. XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX, who are the claimants, are citizens of Mexico who seek 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 claimants’ Basis of Claim forms, BOCs, contained on the record. The claimants are a married couple whose declared sexual orientation is that of bisexual. They also self-identify as swingers. Following a release on social media of a sexually explicit video involving themselves and a third partner, they experienced threats, discrimination and physical intimidation by coworkers, public administrators, and the Mexican public at large. After attempts to seek state protection in Mexico were unsuccessful, they fled to Canada to seek protection.

Guidelines Consulted: Sexual Orientation and Gender Identity and Expression, SOGIESC, Guidelines

[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 claimants found themselves were examined with consideration to the Chairperson’s SOGIESC Guidelines.

DETERMINATION

[4]       The Panel finds that the claimants are Convention refugees pursuant to section 96 of the IRPA based upon their membership in a particular social group being persons identifying as bisexual and/or swingers.

ANALYSIS

Identity

[5]       The claimants’ Mexican nationalities and personal identities are established on a balance of probabilities as per a certified true copy of their passports on the record.

Credibility

[6]       The process of determining whether a claimant is a Convention refugee or a person in need of protection under the IRPA requires the Panel to decide whether they believe the claimant’s evidence and how much weight to give that evidence. In determining this, the Panel must assess the credibility of the claimants and the documentary evidence. The law imposes a duty upon RPD members to assess the credibility of refugee claimants. The Federal Court has laid out the relevant principles in analyzing credibility in the context of refugee claims. Refugee applicants are presumed to tell the truth, but this is a presumption rebuttable by the applicant’s lack of credibility, for example, where the evidence is inconsistent with sworn testimony or the applicants — or where the applicant’s explanation for the inconsistencies is not satisfactory.

[7]       Even though they may be insufficient when taken individually or in isolation, the accumulation of contradictions, inconsistencies, and omissions regarding crucial elements of a refugee claim can support a negative conclusion about an applicant’s credibility. A negative credibility finding cannot be used on minor contradictions that are secondary or peripheral to the refugee protection claim. A lack of credibility concerning central elements of a refugee protection claim can extend and trickle down to other elements of the claim and be generalized to all of the documentary evidence presented to corroborate a version of the facts.

[8]       Credibility findings should not be made based strictly on the absence of corroborative evidence. Where corroborative evidence should reasonably be available to establish an essential element of a claim and there is no reasonable explanation for its absence, a decision maker can draw a negative inference of credibility based on the claimant’s lack of effort to obtain such corroborative evidence and conclusions can be drawn concerning an applicant’s credibility based on implausibilities, common sense and rationality.

[9]       In considering credibility, and in particular considering the Chairperson’s Guideline 9, The Panel is aware of the difficulties that may be faced by the claimant in establishing a claim, (inaudible) the setting of the online hearing room, the sensitive nature of the allegations and the stress inherent in responding to questions. The Panel, in considering the credibility of the claimants, made an assessment of the evidence — of all the evidence, both oral and documentary. The evidence was also assessed as a whole, so it could be treated in a consistent manner. However, not every piece of evidence will be referred to, but those that the Panel finds relevant to its decision, and even if a piece of evidence is not referred to, the Panel carefully considered it as part of the evidence.

[10]     The Panel found that the claimants provided their testimony in a very straightforward manner. The claimants were not represented by Counsel and made best efforts in my finding to provide the Panel with detailed documentary evidence, including copies of human rights complaints made as well as affidavits from colleagues attesting to the discrimination they both experienced. The Panel finds on a balance of probabilities that the claimants are bisexual swingers and that they have established their subjective fear of persecution based upon their sexual orientation.

[11]     Moreover, with regard to overall credibility and the credibility of the claimant’s subjective and objective fear of violence perpetrated against them, the Panel found that the claimants were succinct in all of their responses to questions posed by the Panel. In short, the Panel found the claimants to be highly credible witnesses.

Objective Basis

[12]     The Panel also considered the country conditions in Mexico for members of sexual minorities. The Panel notes that machismo attitudes prevail in Mexico despite changes in national laws, in particular with regard to the legalization and decriminalization of same-sex marriages, and public displays of affection are not considered socially acceptable, as noted in Item 6.1 and 6.2 of the National Documentation Package, NDP for Mexico. A DOS 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.

[13]     An RIR indicates the following. The United Nations special rapporteur on extrajudicial 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.

[14]     According to the CEAV, the Executive Commission of Attention to Victims, and (inaudible) report, trans women 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. An additional 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 Letra S, AIDS, Culture and Daily Life, indicated that more LGBT individuals were killed in 27 (sic) and 2018 than in previous years for reasons believed to be due to their real or perceived sexual or gender identity.

[15]     The documentary evidence in my finding indicates the claimants’ fear of persecution for reasons of their sexual orientation is objectively well-founded.

State Protection

[16]     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 sexual minorities, they do not necessarily effectively protect them in practice.

[17]     According to sources, the judicial system is not effective in investigating crimes committed against sexual minorities. According to a recent Department of State 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, (inaudible) the reasons why LGBTQ persons would fear even approaching the state for protection.

[18]     The claimants testified to their frustration and indeed humiliation they experienced when they attempted to seek state protection. At one (1) point, an official hearing their case mocked and laughed at them. An attempt to seek redress through a complaint to the Human Rights Department in Mexico resulted in a response that they had no jurisdiction. The Panel finds that the claimants’ testimony and the objective evidence presented demonstrate that adequate state protection would not be available to the claimants in Mexico.

Internal Flight Alternative, IFA

[19]     The Panel proposed the two (2) cities of Mexico City and Puerto Vallarta as potential IFA locations. In order to determine whether a viable IFA exists, the Panel must consider a two (2) prong test, and the basis for this test is Rasaratnam and Thirunavukkarasu, which states the Board must be satisfied on a balance of probabilities that there is no serious possibility of the appellant, in this case, 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 the circumstances, including those particular to the appellants, 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.

[20]     During the hearing, when asked whom they feared, the claimants testified that they feared Mexican society in general, which I found to be credible based on their past experiences and equally from a forward-looking perspective. The Panel notes that objective evidence indicates that in Puerto 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 claimants, having considered all of their oral and documentary testimony, that the threat of harm and discrimination leading to persecution inflicted upon them would not be reduced to the extent that there would be no serious possibility that they would face persecution for reasons of their sexual orientation by their relocation to the proposed locations.

[21]     The Panel finds that under the particular circumstances of these claimants, country information indicates that LGBTQ persons are frequently targeted in Mexico by state and civilian agents for serious harm, and that there is a serious possibility that these claimants would face persecution throughout Mexico.

[22]     The claimants could not live openly as bisexual swingers in Puerto Vallarta or Mexico City without fear of attack from members of society. Further, the Panel finds that the claimants face a serious possibility of persecution throughout Mexico. The Panel finds that it is unnecessary to make a determination on the second prong of the IFA test as to whether the claimants’ relocation there would be reasonable under all the circumstances. In the particular circumstances of these claimants, there is no viable internal flight alternative available to them in Mexico.

CONCLUSION

[23]     Having considered all the evidence, the Panel finds that there is a serious possibility that the claimants would face persecution in Mexico for reasons of their sexual orientation and belonging to the social group known as bisexual swingers. Therefore, the Panel finds that the claimants are Convention refugees pursuant to section 96 and their claims for protection are accepted. And that completes the reasons.

——— REASONS CONCLUDED ———