2023 RLLR 18
Citation: 2023 RLLR 18
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2023
Panel: Matthew Stumpf
Counsel for the Claimant(s): Maxim Gutsan
Country: Mexico
RPD Number: TC3-26796
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
REASONS FOR DECISION
[1] XXXX XXXX XXXX XXXX, a citizen of Mexico, seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
[2] In assessing this claim, I have considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.
ALLEGATIONS
[3] The claimant alleges that he faces a serious possibility of persecution due to his identity as a gay man. He claims a history of widespread discrimination, prejudice, and abuse in the workplace, at school, at home, and in various social and public settings. He also described an attempted hate crime against him that occurred when he was 17 or 18 years old, and fears that something similar might happen again.
DETERMINATION
[4] I find that the claimant is a Convention refugee as contemplated by section 96 of IRPA and therefore accept his claim.
ANALYSIS
Identity
[5] I find, on a balance of probabilities, that the claimant has established his personal and national identity as a citizen of Mexico through the identity documents filed, namely his passport.[2]
Nexus
[6] I find that the claimant has established a nexus to a Convention ground, namely membership in a particular social group as a gay man. Accordingly, I will consider his claim under section 96 of IRPA.
Credibility
[7] In claims before the RPD, there is a presumption that sworn testimony is true unless there is valid reason to doubt its truthfulness. I found the claimant’s testimony to be clear, compelling, and genuine, and have no reason to doubt its truthfulness.
[8] I find that the claimant has credibly established his identity a gay man on the basis of his testimony and supporting documents, including letters of support from his cousin (MATO) and his cousin’s wife (MRP).[3] Specifically, the claimant testified in convincing detail about difficulties he experienced growing up in a traditional and conservative family, mistreatment and judgment he experienced from his family during that time, mistreatment and abuse he experienced from his peers and even teachers at school, the mental health issues he developed as a result of this treatment, the counselling he attended in order to try and cope with these issues, his past gay relationship with A, and the discrimination he experienced in the employment context. The claimant also described how free, healthy, unburdened, and happy he has felt since arriving in Canada, as opposed to feeling constantly judged, hurt, and rejected in Mexico. I find that the letters of support bolster the details of the claimant’s testimony with respect to the discrimination he suffered, his mental state, and the problems he had with his family. They have no material inconsistencies with the claimant’s testimony and I attach them full weight.
[9] In particular, the claimant explained the various acts of discrimination he faced due to his sexual orientation at work, at school, and in public generally. He was regularly disparaged and called slurs at work by his coworkers for his mannerisms, tone of voice, choice of attire, and behaviours, which they defined as feminine and did not believe were appropriate for a man. Although he was not officially forced to tender his resignation from any of his positions, he was relentlessly mocked and pressured to leave. The claimant explained that this caused him a great deal of mental anguish and he never lasted long in jobs as a result. He also endured rejection and verbal abuse by his classmates and teachers at school and even within his family. The claimant described how he was not able to feel like himself either in public or at home with his family, and he could not afford to move out on his own. He was mocked for not liking things that boys traditionally liked and having more feminine interests and behaviours. He noted how having to try and hide his mannerisms, his interests, and his sexual orientation from everyone was very traumatizing and burdensome for him.
[10] The claimant described an attempted hate crime against him when he was 17 or 18 years old. He had been walking home from school when a random unidentified driver on the street drove his car right at him and attempted to hit him. The driver shouted homophobic slurs out the window and called him a girl. The claimant speculated that this could have been because of his mannerisms, the way he was dressed, or how he was walking. He stated that he managed to flee down an alley, but otherwise might have been killed. The claimant expressed fear that something similar might happen again due to his sexual orientation and mannerisms, not from the same person but just from any homophobic stranger given his past negative experiences with the public.
[11] The claimant also described his relationship with A, which started when he was 21 and ended after five months because of the abuse they suffered while attending the movies together. They never openly held hands in public, hugged, or kissed, but would often go on dates together and just pose as friends. One day at the movies, however, they did try to subtly hold hands in the dark. The claimant explained that other people in the cinema noticed this, and began to jeer at them, throw popcorn at them, and say things like “this is not a porn movie”. The claimant and A became afraid of potential repercussions and disillusioned with how secretive they had to be, and ultimately decided to end the relationship.
[12] To this day, the claimant continues to attend counselling sessions for the trauma, pain, and frustration he experienced related to his sexual orientation in Mexico.
[13] Accordingly, I find that the key allegations of the claimant as summarized above have been credibly established on a balance of probabilities. I find that through his testimony and supporting documents the claimant has credibly demonstrated a subjective fear of persecution in Mexico due to his identity as a gay man.
Delay in Claiming Refugee Protection
[14] While it is true that the claimant delayed making his refugee claim by about 14 months, he explained that he initially just came to visit Canada to be able to freely be his authentic self for a little while and had no knowledge about the refugee process. After several months, a friend (F) informed him about the possibility and he began to look into obtaining counsel and advancing a claim. I accept this explanation as reasonable and do not draw any adverse inferences from this delay, nor do I find it detracts from the establishment of the claimant’s subjective fear.
Well-Founded Fear of Persecution
[15] I now turn to assessing whether, in light of the NDP and country condition evidence, the claimant has established that his subjective fear is objectively well-founded.
[16] I note that the NDP evidence states that same sex relations are not criminalized in Mexico and that LGBTQ+ individuals have some legislative protections.[4] Same sex marriage has been recognized in certain states, though there is no federal law on this.[5]
[17] However, the NDP also states that despite some legislative advances, “discrimination based on sexual orientation, as well as gender identity and expression, is a structural phenomenon rooted in Mexican society” and “occurs on a daily basis, at multiple levels: in family, work and institutional environments”.[6] According to the NDP, 66% of individuals aged 18 and older in Mexico felt that the rights of gay or lesbian individuals are “little or not at all respected” and 64.4% of individuals aged 18 and older felt there is “little or no justification for two people of the same sex to live as a couple”.[7] Dozens of LGBTQ+ individuals are killed every year in hate crimes in Mexico every year.[8] In a 2016 survey of 613 LGBTQ+ individuals, 35% of men and 23% of women had been victims of physical aggression or violence due to their sexual orientation. Mexico saw its highest number of LGBTQ+ targeted murders in five years in 2019, with 117 SOGIESC individuals killed.[9] The claimant also submitted two articles about the ongoing prevalence of hate crimes in Mexico despite some legal progress on gay rights.[10]
[18] Additionally, LGBTQ+ individuals may find it very difficult to obtain housing, particularly if they mention they are LGBTQ+, as over 30% of women and 35% of men would not be willing to rent a room in their home to a gay or lesbian individual.[11] The NDP goes on to state that LGBTQ+ individuals generally have access to employment and a bachelor’s degree of education, but only if they behave in a discreet manner.[12] If they are open about their sexual identity, they face discrimination both in school and the workplace, as a large number of people in the workplace reportedly still need training in inclusion and non-discrimination practices for sexual and gender diversity and most teachers and professors are homophobic.[13] Though some public tolerance has gained traction, Mexico is at its core still a socially conservative country with roots in stark, defined gender roles and significant religious influences, all of which serve to criticize, judge, and abuse sexual minorities.[14]
[19] Accordingly the NDP evidence clearly establishes that despite some recent legislative reforms and social progress, Mexican society still features extensive discrimination against LGBTQ+ individuals throughout its various institutions. This adversely impacts an LGBTQ+ individual’s physical and mental wellbeing, access to education, access to employment, access to justice, access to public spaces, enjoyment of life, and freedom of expression.
[20] The SOGIESC Guidelines note that SOGIESC individuals may face instances of harassment or discrimination that cumulatively amounts to a well-founded fear of persecution. I find that to be the case here with the claimant, due to his status as a SOGIESC individual. The systemic discrimination and widespread prejudice against SOGIESC individuals forces them to face real, tangible risks of elevated violence, homelessness, lack of access to public spaces and services, and limitations on their employment. As a consequence, they are unable to fully enjoy their civil, cultural, economic, political, and social rights. As discussed above in more detail, the claimant experienced many of these first-hand in the form of attempted murder, repeated harassment by people in public, extensive discrimination and mistreatment in the workplace and at school, and publicly concealing his gay relationships out of necessity and safety concerns. I also note that the claimant has experienced a lot of this harassment due to his mannerisms and behaviours that Mexican society tends to attribute to women rather than men. In the Mexican culture of machismo and clearly defined gender roles, failing to conceal his sexual orientation and the aspects of his identity that do not comport with these expectations can expose him to heightened risks even relative to other more gender-conforming and masculine-presenting gay men.[15] I find this discrimination is so pervasive and systemic that it cumulatively amounts to persecution.
[21] On the basis of a prominent lingering public prejudice against LGBTQ individuals that pervades most societal institutions, elevated violence, harassment, and discrimination against LGBTQ individuals, I find the claimant’s subjective fear of persecution in Mexico due to being a gay man is objectively well-founded.
State Protection
[22] States are presumed to be capable of protecting their citizens except in situations where the state is in a state of complete breakdown.[16] The claimant must rebut this presumption with clear and convincing evidence of the state’s inability to protect its citizens for their claim to succeed. I find that the claimant’s evidence, taken together with the objective country evidence, successfully rebut this presumption and serve as clear and convincing evidence that adequate state protection is not available to the claimant in Mexico.
[23] The NDP evidence indicates that police forces in Mexico lack human and material resources to properly investigate crimes and that for all murders registered between 2010 and 2016, 94.8% of cases had no suspect facing charges.[17] According to the 2019 National Survey on Victimization and Perception of Public Safety, 93.2% of all crimes committed were either not reported or not investigated.[18] Other sources indicate that police at all levels (local, state, and federal) play a role in facilitating illegal businesses, working for organized crime, and systematically violating human rights.[19] Additionally, 59.2% of respondents in a 2019 survey reported that they had experienced an act of corruption with public security authorities.[20]
[24] Additionally, the NDP notes that “there were reports the government did not always investigate and punish those complicit in abuses against LGBTI individuals, especially outside of Mexico City” and that SOGIESC matters are still considered taboo and are often absent from the legislative and executive agendas.[21] Police routinely subjected LGBTI persons to mistreatment while in custody.[22] Another source notes that in the case of homophobic crimes, which are often simply considered “crimes of passion”, investigations are not always conducted properly and even people found to be guilty have been either not punished or set free.[23]
[25] I note that a claimant is not required to risk their life to seek ineffective protection of a state merely to demonstrate that ineffectiveness.[24] I find the behaviour of the police towards people of the LGBTQ community as referenced by the NDP above gives rise to reasonable concerns of police misconduct and explains why the claimant would not be able or willing to avail himself of their protection.
[26] In light of the objective country documentation and the claimant’s evidence, I find that the claimant has rebutted the presumption of state protection and that adequate state protection would not be available to the claimant in Mexico.
Internal Flight Alternative
[27] I raised the issue of IFA with the claimant at the outset of the hearing and proposed Mexico City as a viable IFA. I note that counsel for the claimant inexplicably addressed the IFA of Cancun in his written submissions, when in fact I had proposed Mexico City (and the Zona Rosa). Nevertheless, I find that the claimant has successfully challenged this IFA under the first prong of the analysis.
[28] The Federal Court of Appeal has held that there is a two-pronged test for assessing an IFA.[25] The RPD must be satisfied that:
i. There is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or that it is more probable than not that the claimant would not be personally subject to a danger of torture or to a risk to life or risk of cruel and unusual treatment or punishment in the IFA; and
ii. The conditions in the 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 claim, for the claimant to seek refuge there.
[29] Both prongs of the test must be satisfied to find that a claimant has an IFA. Once the issue of IFA has been raised and potential IFAs have been identified by the RPD, the burden of proof then rests with the claimant to show that they do not have a viable IFA in those locations.
First Prong: Prospective Risk of Harm in the IFA
[30] The claimant has established a nexus to a Convention ground under section 96 of IRPA. I will therefore focus the first prong of the IFA analysis on whether the claimant has demonstrated that he faces a serious possibility of persecution in Mexico City. For the reasons that follow, I find that the claimant has successfully established that he would and therefore that Mexico City would not be a viable IFA.
[31] The NDP evidence indicates that, while circumstances for LGBTQ+ individuals are better in Mexico City and the Zona Rosa, authorities and homophobic societal attitudes operate similarly in all parts of Mexico.[26] In a 2015 study, 68% of the LGBTQ+ people surveyed in Mexico City claimed to have been discriminated against at some point and 20-25% reported not being able to speak openly about their sexual orientation.[27] Another source notes that 81.8% of respondents consider that discrimination exists towards gay individuals in Mexico City and that violence towards LGB individuals remains an issue.[28] Mexico City also features one of the highest LGBTQ-targeted murder rates in the country and violence and discrimination frequently occurs throughout the city, even in the Zona Rosa.[29] The NDP also documents that access to housing, even in terms of renting, is “very difficult” if an individual mentions they are LGBTQ+ and they could quite likely be prohibited or denied access to it without any other reason (and does not distinguish Mexico City from this statistic).[30] Between 30 and 35% of individuals openly conceded that they would not rent a room to a gay or lesbian individual.[31] Additionally, while LGBTQ+ individuals in general have access to employment in Mexico City, they will face discrimination when they share their sexual orientation or when their sexual orientation is discovered.[32] The NDP also documents discrimination in terms of access to healthcare services for LGBTQ+ individuals in Mexico City.[33]
[32] On the basis of these references in the NDP evidence, I find that the same discrimination, prejudice, and risk of harm the claimant would face at home in Pachuca would also be present in Mexico City, or indeed nationwide. Given that these conditions document ongoing widespread discrimination within the context of housing, employment, and healthcare in Mexico City, as well as ongoing violence against LGBTQ+ individuals, I find that the cumulative effects of these amount to persecution. Accordingly, I find the claimant would also face a serious possibility of persecution in Mexico City, and that it would not be a viable IFA.
[33] As the claimant has successfully challenged the proposed IFA under the first prong of the IFA analysis, I need not proceed with the second prong of the IFA analysis. I find that the claimant does not have a viable IFA in Mexico City or indeed throughout Mexico.
CONCLUSION
[34] I find the claimant has established he faces a serious possibility of persecution in Mexico on a Convention ground as a gay man. I therefore find that he is a Convention refugee under section 96 of IRPA and therefore accept his claim.
(signed) Matthew Stumpf
December 20, 2023
[1] Immigration and Refugee Protection Act, SC 2001, c 27, as amended, ss 96, 97(1)(a) and 97(1)(b).
[2] Exhibit 1.
[3] Exhibit 5, Items 1 and 2.
[4] NDP, Mexico, Tab 6.2 at pp. 1-2, 6-8: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022; NDP, Mexico, Tab 6.1 at pp. 14-18: Mexico: Sexual orientation and gender identity (SOGI) COI Compilation. Austrian Red Cross. Austrian Centre for Country of Origin and Asylum Research and Documentation. May 2017.
[5] NDP, Mexico, Tab 6.2 at pp. 8-9: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022.
[6] NDP, Mexico, Tab 6.2 at p. 13: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022.
[7] NDP, Mexico, Tab 6.2 at p. 12: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022.
[8] NDP, Mexico, Tab 6.2 at p. 13: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022.
[9] NDP, Mexico, Tab 6.4 at p. 19: Queer Refugee Hearings Program: Country of Origin Information Report: Mexico. Capital Rainbow Refuge. April 2021.
[10] Exhibit 5, Items 3 and 4.
[11] NDP, Mexico, Tab 6.2 at pp. 18-19: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022; NDP, Mexico, Tab 6.4 at p. 22: Queer Refugee Hearings Program: Country of Origin Information Report: Mexico. Capital Rainbow Refuge. April 2021.
[12] NDP, Mexico, Tab 6.2 at pp. 18-19: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022.
[13] NDP, Mexico, Tab 6.2 at pp. 19-20: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022.
[14] NDP, Mexico, Tab 6.2 at pp. 1-2: Mexico: Societal norms on gender identity expressions, including in indigenous communities (2016-May 2018). Immigration and Refugee Board of Canada. 25 May 2018.
[15] NDP, Mexico, Tab 6.5 at pp. 1-2: Mexico: Societal norms on gender identity expressions, including in indigenous communities (2016-May 2018). Immigration and Refugee Board of Canada. 25 May 2018.
[16] Canada (Attorney General) v Ward, [1993] 2 SCR 689 at 725.
[17] NDP, Mexico, Tab 7.18 at p. 16: Mexico: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available to victims, including witness protection (2018–September 2020). Immigration and Refugee Board of Canada. 21 September 2020.
[18] NDP, Mexico, Tab 7.18 at p. 18: Mexico: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available to victims, including witness protection (2018–September 2020). Immigration and Refugee Board of Canada. 21 September 2020.
[19] NDP, Mexico, Tab 10.2 at p. 3: Mexico: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available to report instances of corruption (2017–September 2020). Immigration and Refugee Board of Canada. 1 September 2020.
[20] NDP, Mexico, Tab 10.2 at p. 2: Mexico: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available to report instances of corruption (2017–September 2020). Immigration and Refugee Board of Canada. 1 September 2020.
[21] NDP, Mexico, Tab 6.2 at p. 7: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022; NDP, Mexico, Tab 2.1 at pp. 34-35: Mexico. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[22] NDP, Mexico, Tab 6.2 at p. 12: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022; NDP, Mexico, Tab 2.1 at pp. 34-35: Mexico. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[23] NDP, Mexico, Tab 2.1 at pp. 34-35: Mexico. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[24] Canada (Attorney General) v Ward, [1993] 2 SCR 689 at 724.
[25] Rasaratnam v Canada (Minister of Employment and Immigration), [1991] FCJ No. 1256, [1992] 1 FC 706 (CA).
[26] NDP, Mexico, Tab 6.4 at pp. 28-29: Queer Refugee Hearings Program: Country of Origin Information Report: Mexico. Capital Rainbow Refuge. April 2021; NDP, Mexico, Tab 6.4 at pp. 10-11: Mexico: Situation of sexual minorities, including in Mexico City; protection and support services offered by the state and civil society (2015-July 2017). Immigration and Refugee Board of Canada. 16 February 2018.
[27] NDP, Mexico, Tab 6.4 at p. 29: Queer Refugee Hearings Program: Country of Origin Information Report: Mexico. Capital Rainbow Refuge. April 2021.
[28] NDP, Mexico, Tab 6.2 at p. 17: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022.
[29] NDP, Mexico, Tab 6.4 at p. 29: Queer Refugee Hearings Program: Country of Origin Information Report: Mexico. Capital Rainbow Refuge. April 2021.
[30] NDP, Mexico, Tab 6.2 at p. 19: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022.
[31] NDP, Mexico, Tab 6.2 at p. 19: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022.
[32] NDP, Mexico, Tab 6.2 at pp. 19-20: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022.
[33] NDP, Mexico, Tab 6.2 at p. 21: Mexico: Treatment of individuals based on their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and support services, particularly in Mérida, Monterrey, and Mexico City; state protection (2020–March 2022). Immigration and Refugee Board of Canada. 8 April 2022.