2023 RLLR 15

Citation: 2023 RLLR 15
Tribunal: Refugee Protection Division
Date of Decision: December 21, 2023
Panel: T. Cortes-Diaz
Counsel for the Claimant(s): Eunji Yi for John W. Grice
Country: Mexico
RPD Number: TC3-09332
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

MEMBER:

Introduction

[1]       XXXX XXXX XXXX XXXX XXXX XXXX is claiming refugee protection under Section 96 and 97(1) of the Immigration and Refugee Protection Act alleging that he faces a serious possibility of persecution in Mexico.  In assessing his claim, I have taken into account the Immigration and Refugee Board’s Chairpersons Guidelines on sexual orientation and gender identity and expression, SOGIE guidelines.

Allegations

[2]       The facts and events alleged in support of the claim are set out in the claimant’s Basis of Claim form.  The claimant alleges he is a gay man who fears persecution in Mexico, based on his sexual orientation and his XXXX XXXX XXXX.  The claimant has established that he faces a serious possibility of persecution because of his membership in a particular social group.  Based on the evidence submitted, including the claimant’s testimony at the hearing, I find that the claimant is subjected to regrettable treatment in Mexico that is discriminatory by virtue of his identification as a gay man and his XXXX XXXX XXXX.

Determination

[3]       I find that this discrimination taken into consideration the duration, severity and emotional impact on the claimant when considered cumulatively does amount to persecution.  I find that the claimant is in need of protection and I accept his application for refugee protection under Section 96 of the IRPA.

ANALYSIS

Identity

[4]       The claimant has established his personal identity as a national of Mexico by a certified copy of his Mexican passport, contained in the evidence.

Credibility

[5]       In assessing the claimant’s credibility, I kept in mind the decision of the Federal Court of Appeal in Maldonado when 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 are reasons to doubt their truthfulness.  I am mindful of the many difficulties faced by the claimant in establishing a claim including nervousness, cultural factors, and the difficulties inherent in responding to questions about what may have been traumatic in nature.  I find the claimant to be a credible witness and therefore believe what he has alleged in support of his claim.

[6]       I also believe that he did not make any efforts to embellish his testimony.  With respect to the claimant’s membership in a particular social group, namely a gay man, I find him to be credible.  Regarding the discrimination the claimant faced in Mexico and the events that led him to leave Mexico, I also find he has credibly established these facts on a balance of probabilities.  In addition to his testimony, the claimant also submitted plenty of evidence corroborating his allegations.  Among the documents submitted are letters of support from his friends and family, corroborating the events of discrimination faced by the claimant, pictures depicting his current relationship and also medical information from Mexico and Canada confirming the claimant’s XXXX XXXX.

Objective Basis

[7]       In regards to the objective evidence.  Although there have been advances in Mexico, legislation to recognize equality, discrimination based on sexual orientation as well as gender identity and expression, is a structural phenomenon rooted in Mexican society and, of course, daily at multiple levels in family, work, and institutional environments.  This is at section 6.2 of the National Documentation Package.  The evidence also shows that legislative attempts to stop discrimination do not necessarily translate into effective actions for members of the LGBTQ community.  Laws providing rights to sexual and gender minorities over the years have made them more visible to Mexican society.  And as a result, more vulnerable to homophobic and transphobic violence.  Increased visibility has increased public misperceptions and false stereotypes about the gay and transgender communities.  This has produced fears about these communities, such as being gay or transgender is contagious and that all transgender individuals are HIV positive.  These fears have in turn led to hate crimes and murders of LGBTQ people, and this is at the same section 6.2 of the NDP.

[8]       The claimant described facing discrimination in different parts of Mexico, and also described the harassment he experienced at school, work, the verbal aggression, mocking and bullying because of his perceived or known sexual orientation.  The claimant described how this constant harassment led him to develop XXXX XXXX XXXX XXXX.  The objective evidence supports the claimant’s allegations that even in Mexico City people or gay people also suffered discrimination when they share their sexual orientation or when it is discovered.

[9]       The claimant found out about his XXXX XXXX in Mexico.  The claimant started treatment in 2019, but testified about the disrespectful manner the treatment was administered to him by doctors.  The claimant also talked about the unavailability of drugs at times which made the claimant stop treatment at least two times, risking XXXX XXXX XXXX XXXX XXXX XXXX.  Even though the objective evidence does indicate that some clinics provide comprehensive and free of charge XXXX treatment, whether an individual has access to Social Security or not, the report also says that those receiving treatment still face discrimination, violence and stigma, including sometimes violation of the human rights.

[10]     Country conditions report further describes how a significant number of LGBTQ persons are denied access to health services altogether and those who do have access often experience discrimination and harassment by medical staff who are typically untrained or they do not know how to treat or care for LGBTQ individuals.  And this is at section 6.7 of the NDP.  The documentary evidence also indicates that even though Mexico labor law prohibits employers from demanding XXXX XXXX for employment, individuals are commonly barred from employment because of XXXX XXXX or the employment is terminated when their XXXX XXXX is discovered or disclosed.  This was the case with the claimant when he was not given a job at a call center when his XXXX XXXX XXXX XXXX XXXX.

[11]     Taking into consideration the repetitive and long lasting instances of past discriminations and abuse against the claimant by general Mexican society combined with the forward-looking risk he faces as XXXX XXXX XXXX gay man, there is enough reliable evidence to suggest that on a balance of probabilities, he will be subjected to persecution if he returns to Mexico.  There is also enough convincing evidence to conclude that on a balance of probabilities, and taking into consideration the repetitive instances of past abuse against the claimant again and that he will face a forward-looking risk due to his XXXX XXXX.

State Protection

[12]     The country documentation demonstrates that while legislation protection exists regarding sexual orientation, many of Mexico’s institutions are weak and the legislation that is in place right now is either noneffective or not implemented. 

[13]     The legislation protections are not uniform, they are not enforced and the LGBT community is not protected.  Section 6.1 of the NDP reports that same-sex couples showing public display of affections are also a frequent target of police abuse and arbitrary detention by state agents, often with excessive use of force or verbal abuse, because what it is considered immoral behavior in public places.

[14]     I find that the homophobic nature of Mexican society is deeply rooted and is reflected in the country police forces and therefore find that in the claimant’s circumstances, he has rebutted the presumption of state protection.

Internal Flight Alternative

[15]     In regards to internal flight alternative.  I had chosen Mexico City as a possible internal flight alternative.  However, I note that the documentary evidence says that there are LGBTQ communities in larger cities where it is possible to express one’s sexuality.  However, the National Documentation Package indicates that throughout Mexico, most sexual minorities have experienced physical acts of violence and harassment based on their sexual orientation, gender identity, and XXXX XXXX XXXX.  For this reason, and based on the particular circumstances of this case, I find that an internal file alternative is not available for the claimant in Mexico.

CONCLUSION

[16]     Based on the totality of the evidence and the analysis that I have done on this file, I find that the claimant is a person in need of protection pursuant to Section 96 of the Act.  Accordingly, his claim for refugee protection is accepted.

——— REASONS CONCLUDED ———