2023 RLLR 23
Citation: 2023 RLLR 23
Tribunal: Refugee Protection Division
Date of Decision: December 28, 2023
Panel: Robert Cox
Counsel for the Claimant(s): Crystal Raby
Country: Mexico
RPD Number: TC3-46740
Associated RPD Numbers): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
REASONS FOR DECISION
Overview
[1] XXXX XXXX XXXX (XXXX or the claimant) claims to be a citizen of Mexico. XXXX seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
ALLEGATIONS
[2] The allegations are set out in XXXX’s Basis of Claim Form (BOC)[2], which may be summarized as follows. XXXX is originally from Mexico City, Mexico, has a university education in XXXX XXXX and has worked and taught within the same field for the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and for private enterprises. XXXX identifies with the LGBTQ2+ community and alleges fears of personal harm or even death from the Mexican society because of XXXX’s sexual orientation. XXXX alleges inhumane harassment, discrimination, and threats because of XXXX’s LGBTQ2+ identity. According to XXXX’s narrative, XXXX has been the subject of ridicule and psychological and physical abuse since attending high school which continued into XXXX’s adulthood. The discrimination, ridicule and psychological abuse eventually led XXXX to resign from the XXXX; however, XXXX alleges that the XXXX fraudulently kept XXXX’s name on its employment and pay records, kept XXXX from receiving any benefits (including the income) and threatened XXXX with further harm if XXXX attempted to dispute, report, or denounce the XXXX’s corrupt and fraudulent actions. Fearful of the XXXX’s threats and actions, XXXX decided to leave Mexico.
[3] The immigration documents which form part of XXXX’s application for refugee protection demonstrate that XXXX flew from Mexico to Montreal, Quebec, Canada on XXXX XXXX, 2023, and then applied for refugee protection from Canada on May 1, 2023.
DETERMINATION
[4] Having considered all the evidence, the panel finds that XXXX has established a well-founded fear of persecution throughout Mexico under s. 96 of the Convention based on XXXX’s sexual orientation and identity within the LGBTQ2+ community.
ANALYSIS
Identity
[5] XXXX’s personal and national identity as a citizen of Mexico has been established by a certified true copy of XXXX’s Mexican passport.[3]
Nexus
[6] XXXX has alleged and established a nexus to the Convention ground of particular social group based on XXXX’s sexual orientation and identity within the LGBTQ2+ community. As such, the panel has assessed XXXX’s claim pursuant to section 96 of the IRPA.
Credibility
[7] 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 claimant and the documentary evidence. The law imposes a duty upon RPD members to assess the credibility of refugee claimants.
[8] Maldonado established the principle that claimants benefit from the presumption that their allegations are true. In this case, the panel did not find any reason to doubt the truthfulness of the claimant’s allegations. The claimant’s narrative and BOC are detailed and consistent with the supporting documentation and the country evidence before the panel.
[9] XXXX submitted over 260 pages of detailed documents. Based on the evidence, the panel accepts the XXXX’s allegations as they are set out in the original and updated narrative which form part of XXXX’s application for refugee protection and as they were confirmed by XXXX’s genuine and sincere oral testimony. The panel finds that XXXX has completely, sincerely, and genuinely demonstrated a membership within the LGBTQ2+ community and that said membership has led to XXXX being victimized by and suffering enduring persecution at the hands of the XXXX XXXX and Mexican society in general. The panel further finds that XXXX has been targeted and pursued by the XXXX XXXX and the Mexican society for reasons related to nothing else other than XXXX’s sexual orientation and XXXX’s membership in the particular LGBTQ2+ social community.
[10] Given the foregoing, the panel finds that XXXX’s allegations of persecution and subjective fear have been established on a balance of probabilities.
Well-Founded Fear of Persecution
[11] Having considered the claimant’s documentary evidence coupled with the objective evidence set out below, the panel finds the claimant has established a prospective risk and an objective basis for a fear of persecution in Mexico. The Panel considered the country conditions in Mexico for members of sexual minorities as depicted in the most recent National Documentation Package (NDP) for Mexico[4]. The Panel notes that conservative attitudes prevail in Mexico and public displays of affection between couples of diverse sexual orientations are not considered socially acceptable as noted in item 6.1 and item 6.2 of the National Documentation Package, NDP, for Mexico.[5] The DOS report provides that the government did not always investigate and punish those complicit in abuses” against LGBTQ individuals, “especially outside of Mexico City”. Discrimination based on sexual orientation and gender identity was prevalent, despite a gradual increase in public tolerance of LGBTQ individuals. According to public opinion surveys, 72 percent of individuals 18 years of age and older feel that the rights of transgender individuals are “little or not at all respected” in Mexico, while 66 percent feel that the rights of gay or lesbian individuals are “little or not at all respected.” At the national level, 64.4 percent of individuals aged 18 years or older feel that there is “little or no justification for two people of the same sex to live as a couple,” while in Mexico City, Nuevo Léon, and Yucatán the figures are 40.5, 72.2, and 64.3 percent, respectively. Letra S, in its annual report for 2020 on the violent deaths of LGBTQ+ individuals, provides that, in 2020, “at least” 79 LGBTQ+ individuals were killed in Mexico. The same source notes that this represents a 32 percent decrease in the number of LGBTQ+ individuals killed compared to 2019, with Veracruz and Chihuahua at the top of the list Treatment of individuals based on their sexual orientation, gender identity and expression having the highest number of LGBTQ+ homicides. However, the same source notes that the decrease is “in line” with a general reported decrease in homicides in 2020 compared to 2019, and that decrease is owed more to the social impact of the COVID-19 pandemic than to the implementation of public crime prevention and law enforcement policies.
[12] Document 6.5 of the NDP provides that the CEAV, Executive Commission of Attention to Victims, and Fundación Arcoiris 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 because of their sexual orientation or gender identity or expression, including 108 trans women, 93 gay men, and one lesbian woman. The highest number of victims, 76, was recorded in 2016. Of the total 202 victims, 33 showed signs of torture, while 15 showed signs of sexual violence. 17 cases were investigated as hate crimes, while 20 were investigated as a crime of passion. 64 people were accused as perpetrators. The states with the highest number of killings are Veracruz, 22 murders, the State of Mexico, 15 murders, Quintana Roo, 15 murders, and Chihuahua, 14 murders. There were eight murders presumably motivated by hate or prejudice in Mexico City, two in 2014, one in 2015, and five in 2016. In the first quarter of 2017, 20 killings of sexual minorities were registered, including six gay men, one bisexual man, and 13 trans women.
[13] The documentary evidence indicates that the claimant’s fear of persecution for reasons of sexual orientation is objectively well-founded.
STATE PROTECTION
[14] States are presumed to be capable of protecting their own citizens; however, this presumption is rebuttable with clear and convincing evidence to the contrary. Document 6.4 of the NDP provides that “[a]ccording to the CEAV and Fundación Arcoiris report, there are high levels of distrust in authorities.” According to The Guardian, ‘rights for gay people are still treated as exceptions to be granted at the discretion of local officials.”
[15] The same RIR also notes: According to the US Country Reports 2016, “[c]ivil society groups claimed that police routinely subjected LGBTI persons to mistreatment while in custody.” The CEAV and Fundación Arcoiris report indicates that at least one 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 Center and Cornell University Law School LGBT Clinic, “[p]olice harassment against the LGBTQ community remains high in Mexico City.” The 2016 CEAV and Fundacion Arcoiris report indicates that out of 425 persons interviewed, 139 reported some form of abuse by authorities, including delays or refusal to provide services as well as insults and violence.
[16] The objective evidence further provides that, in 2014, the Supreme Court of Justice of Mexico issued a non-binding protocol for judges on the adjudication of cases involving sexual minorities. The protocol 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, in practice, these policies and procedures do not effectively or necessarily protect them. According to sources, the judicial system is not effective in investigating crimes committed against sexual minorities. The Researcher stated that: “if someone has been threatened by a gang, [they] can file a complaint with the Judicial Authorities but that doesn’t 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”.
[17] The 2016 CEAV and Fundación Arcoiris report indicates that there are low levels of
reporting crimes. The Researcher stated that less than ten 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 US Country Reports 2016, “there were reports that the government did
not always investigate and punish those complicit in abuses [against sexual minorities], especially outside Mexico City…”
[18] 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 the state for protection.
[19] The panel finds that the claimant’s testimony and the objective evidence demonstrate that adequate state protection would not be available to the claimant in Mexico.
INTERNAL FLIGHT ALTERNATIVE (IFA)
[20] Given that the XXXX XXXX, state actor, has been identified as the agent of persecution and that the Mexican society has been identified as being conservative a state which is unaccepting of diversity vis-à-vis an individual’s sexual orientation, the panel finds that the claimant will face a serious possibility of persecution throughout Mexico. Accordingly, the panel finds that there is no viable IFA for the claimant.
CONCLUSION
[21] Based on the totality of the evidence, the panel finds that the claimant is a Convention refugee pursuant to section 96 of the IRPA. As such, the claim for refugee protection is accepted.
(signed) Robert Cox
December 28, 2023
[1] Immigration and Refugee Protection Act (S.C. 2001, c. 27)
[2] Exhibit 2, Basis of Claim (BOC) Form TC3-46740, originally signed on May 1, 2023, then signed a second time August 11, 2023.
[3] Claims referral information from CBSA/IRCC.
[4] National Documentation Package (NDP) for Mexico, September 29, 2023
[5] Ibid.