2023 RLLR 17
Citation: 2023 RLLR 17
Tribunal: Refugee Protection Division
Date of Decision: December 6, 2023
Panel: Roberto Reis
Counsel for the Claimant(s): Constance Nakatsu
Country: Mexico
RPD Number: TC3-23063
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: Okay, so, this is the decision of the Refugee Protection Division, the RPD, in the claim of XXXX XXXX XXXX, case TC3-23063, who is claiming refugee protection pursuant to section 96 and section 97(1) of the Immigration and Refugee Protection Act, or IRPA. Today’s date is December 6th, 2023.
[2] In the hearing and in this decision, I have considered and applied the Immigration and Refugee Board‘s Chairperson’s Guideline 9 on — sexual orientation, gender identity and expression, and sex characteristics guideline, also referred to as the SOGIESC guideline. I am mindful of the difficulties faced by the claimant in establishing his claim, including the challenge of remembering difficult emotional events, and as a result, I addressed the claimant with heightened sensitivity and avoided unnecessary details when asking questions. Okay.
ALLEGATIONS
[3] The claim details are stated in the claimant’s Basis of Claim form and the claimant’s testimony. The claimant is a 56-year-old man who lived in Guadalajara, Jalisco, Mexico. In summary, the claimant fears the Mexican state and society on the basis of his sexual orientation as a gay man. The claimant also fears his son, who threatened to kill him if he returns to Mexico. The claimant alleges that there is no adequate state protection for him in Mexico nor is there a safe and reasonable internal flight alternative because the persecution of SOGIESC people exists throughout the country.
DETERMINATION
[4] I find that the claimant has satisfied the burden of establishing that he would face a serious possibility of persecution on a Convention ground.
ANALYSIS
Identity
[5] I am satisfied with the claimant’s identity as a citizen of Mexico, which is established by his testimony and a copy of his passport in Exhibit 1.
Nexus
[6] I find the claimant has established a nexus to a Convention ground, namely his membership in a particular social group as he is a gay man. Therefore, I will assess the claim under section 96 of the IRPA.
Credibility
[7] I find no reason to doubt the claimant’s credibility. Although clearly nervous, the claimant testified in a straightforward manner. The claimant also provided ample details to expand upon his allegation whenever asked. I find that his testimony of discrimination events is aligned with the general country information available on the Mexican National Documentation Package, or NDP, which shows a high persecution level against SOGIESC people, according to Tab 6.2.
[8] The claimant credibly established that he faced continuous prejudice, discrimination, bullying, verbal and physical violence throughout his life due to his sexuality. Moreover, the claimant was assaulted by his own son, who discovered that his father was a gay man and promised to kill him.
[9] The claimant also submitted vast corroborative evidence to support his persecution allegations, which include a XXXX assessment conducted in Mexico and another one (1) in Canada, support letters from family, co-workers, and friends talking about his sexuality and the challenges he was facing in his country.
[10] I find that all prejudice against and violence suffered by the claimant added to the death threat by his son amount to persecution on a balance of probabilities.
Well-Founded Fear of Persecution and Risk of Harm
[11] The claimant testified and provided corroborative evidence that his son is actively looking for him. I find that even if his son is motivated, there is no evidence before the Panel that he would have the means to locate the claimant in another part of Mexico, especially in Mexico City, a place with over 22 million people almost 600 kilometres from Guadalajara, where he was persecuted.
[12] However, the objective evidence in the NDP from Mexico at Item 6.2 indicates that while there have been legislative improvements in Mexico, there continues to be harassment and discrimination of sexual minorities by society and discrimination as they seek employment and medical services.
[13] Item 2.1 speaks to the fact that authorities act with impunity with respect to individuals like the claimant. They do not investigate crimes when they suspect they are related to sexual minorities. In fact, Item 6.1 talks about those individuals who demonstrate public attention or affection are, in reality, targeted by the police.
[14] I also considered Item 6.7, which indicates the inability to live openly as a gay person for fear of harassment, persecution, violence, and other negative consequences. The same reference also states that the SOGIESC community is being threatened with impunity by the police.
[15] I find that the claimant has established that he faces cumulative discrimination for his sexual orientation which amounts to persecution if he returns to Mexico. The claimant would be subjected on a balance of probabilities to the persecuted in the country. Therefore, I find the claimant has demonstrated a well-founded fear of persecution on both a subjective and objective basis.
State Protection
[16] There are legal provisions to protect SOGIESC communities in Mexico. However, according to the NDP, Item 6.4, these legal protections are not consistently enforced. According to the NDP, Tab 2.1, state authorities do not always investigate and punish people who commit crimes against SOGIESC people.
[17] Item 6.7 of the NDP states that crimes are often not reported to the police. Only four (4) percent of SOGIESC people who experience discrimination reports it to authorities because of a lack of confidence or trust. Victims of these crimes are reluctant to report anything to the police given that police reportedly intimidate, extort, and harass SOGIESC people. Indeed, the same Item 6.7 reports Mexican state authorities include police, military, and other government officials as being involved in violence targeting sexual minorities.
[18] After considering the evidence, I do not find that the claimant has inadequate — adequate state protection in Mexico.
Internal Flight Alternative (or IFA)
[19] Finally, the Panel has considered whether a viable internal flight alternative exists for the claimant. Mexico City was suggested as a possible IFA location. The Panel must find — sorry.
[20] The Panel must consider a two (2) pronged test to determine the viability of an IFA location. First, the Panel must be satisfied that the claimant would not face a serious possibility of persecution in the IFA location. Second, the Panel must be satisfied that the conditions in the suggested IFA are not such that it would be objectively unreasonable in all circumstances for the claimant to relocate and reside there.
[21] I note that there are laws in Mexico to protect sexual minorities. According to the NDP, Item 6.7, there are laws criminalizing hate crimes. Same-sex couples can marry and adopt children in Mexico City, and the city also has a SOGIESC village in a section called Zona Rosa, or ‘Red Zone.’ However, the same NDP evidence also recognizes that legislation to protect SOGIESC people is only partially effective and that people in this community remain vulnerable to abuse by authorities and discrimination.
[22] Given the absence of adequate state protection, the prevalence of homophobia, and violence against sexual minorities throughout Mexico, I find that the claimant would face a serious possibility of persecution if he were to return. Therefore, it is not objectively reasonable in all the circumstances, including those particular to the claimant, for him to relocate to an IFA location. Accordingly, I find the claimant could not live openly as a gay man in Mexico City without fear of attack from members of society. Therefore, no internal flight alternative is available to the claimant.
CONCLUSION
[23] Having considered — in considering all the evidence, the Panel finds that there is a serious possibility that the claimant would face persecution in Mexico for his — reasons of his sexual orientation as a gay man. Accordingly, the Panel finds that the claimant is a Convention refugee, and therefore, his claim is accepted.