2023 RLLR 231
Citation: 2023 RLLR 231
Tribunal: Refugee Protection Division
Date of Decision: December 1, 2023
Panel: Amritsingh Kahlon
Counsel for the Claimant(s): Arashveer Brar
Country: Mexico
RPD Number: VC3-08454
Associated RPD Number(s): N/A
ATIP Number: A-2024-01133
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision for the claimant, XXXX XXXX XXXX. The claimant is a citizen of Mexico and is claiming refugee protection presently pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
ALLEGATIONS
[2] The specific allegations are set out in the Basis of Claim form provided by the claimant. In summary, the claimant alleges that the claimant is a gay, XXXX XXXX XXXX man who has led — which has led to the claimant experiencing discrimination, prejudice, and intention of harm from both state parties and the public in Mexico. The claimant has been threatened and harassed in his school, and work, and also his family. The claimant also has been attacked by a Gulf Cartel member due to his sexual orientation in the year 2019.
DETERMINATION
[3] I find that the claimant is a Convention refugee under section 96. My analysis is as follows.
Identity
[4] The claimant’s personal identity as a citizen of Mexico has been established by his testimony and supporting documents filed as exhibits. Specifically, a copy of passport issued by the Government of Mexico is available in Exhibit 1. I therefore find on the balance of probabilities that identity and country of reference have been established for the claimant.
Nexus
[5] I find there is a link between the harm that the claimant fears and a particular Convention ground. The claimant identifies as a gay man and is XXXX XXXX XXXX, and therefore, I find the claimant has a nexus to a member of a particular social group that he is a gay man who is XXXX XXXX XXXX. I have therefore assessed this claim under section 96 and have Chairman’s Guideline 9.
Credibility
[6] In this case, I found the claimant was candid and straightforward. The claimant answered all the questions in a very clear manner. The claimant’s testimony was heartfelt, and he got emotional when talking about his family founding about — finding about his sexual orientation. The claimant broke up — broke down while talking about harassment he faced at the hands of family and the society over the years. The claimant had an expression of relief and a genuine smile while he was talking about his life in Canada. I found the claimant to be credible and believe what the claimant has alleged on a balance of probabilities.
[7] The claimant provided detailed testimony about his experiences as a gay man living with XXXX in Mexico and how his life has changed in Canada. The claimant spoke about the harassment at school, and at home, and at work. The claimant also spoke about threats he got from his family for coming out as a gay man. The claimant also testified about living with his partner and facing harassment at work and in public because of that. The claimant also testified about beaten up — beating beaten up (sic) by members of Gulf Cartel in 2019 because of his sexual orientation.
[8] The claimant testified about his past relationships with same-sex partner. The claimant testified how he was in a relationship from 2013 to 2016 and that relation was only held in the four (4) walls of their home, and there was so much harassment and abuse when they stepped outside. The claimant testified that their families hated them, and due to the pressure of the society and their family, they had retaliation.
[9] The claimant also testified that as — growing up in Mexico, he experienced stigma, discrimination, threats to life from the public and state authorities due to his sexual orientation and being XXXX XXXX XXXX and living with XXXX in Mexico. The claimant knew he was different, and that he had to hide his attraction to men, and could not live his life as who he is in Mexico. The claimant testified about being harassed and beaten up by his brothers for being gay.
[10] The claimant also spoke extensively about his life in Canada, and about his involvement in LGBTQ community, and how he has been actively participating and volunteering in different events. The claimant also provided documentary evidence in Exhibit 4.1 and 4.2. The documents are analyzed below — support letters from cousin and friends, which corroborate the claimant’s allegation that he is a gay man with XXXX and has faced harassment due to his sexual orientation and medical condition, support letter from XXXX XXXX XXXX which corroborates claimant’s allegation that he is XXXX XXXX XXXX, support letter from XXXX XXXX which corroborates his allegation that he is a gay man from Mexico and is XXXX XXXX XXXX, country condition documents and nude — news articles corroborating the claimant’s allegations on risk of harm faced by the LGBTQ community across Mexico.
[11] I found the claimant’s testimony to be spontaneous, detailed, and consistent with his Basis of Claim form. There were no inconsistencies or omissions going to the core of the claim.
[12] Based on the totality of the evidence, I found that his subjective fear as established by his credible testimony. I found — find that the claimant is a gay and XXXX XXXX XXXX man and he has experienced severe discriminations, threats in Mexico amounting to persecution.
Well-Founded Fear of Persecution
[13] The Panel finds that the claimant has well-founded fear of persecution in Mexico due to his sexual orientation and being XXXX XXXX XXXX. The past discrimination and abuse the claimant has experienced supports the objective basis of his fear of harm on a forward-looking basis. The objective basis is further supported by evidence in the National Documentation Package.
[14] Item 6.2 of NDP states that Mexico City is the most progressive city of LGBTQ+ — for LGBTQ+ people, but still, 81.8 percent individuals who identify as gay and 75.7 percent of individuals living with XXXX XXXX XXXX faced discrimination in Mexico City. NDP Item 6.2 states that the access of housing, employment, education, and health care are scarce for LGBTQ community, and it specifically notes that 33 percent of women and 39 percent of men would not rent a room in their home to people with XXXX XXXX XXXX.
[15] The Alliance for Diversity Workplace Inclusion states, “Individuals from the gay, lesbian, and bisexual community ‘only have access’ to bachelor’s degree and only if ‘they are middle-class and behave in a discreet manner’ and are not ‘openly gay or out of the closet.’ It is also ‘very difficult’ for the LGBTQ+ individuals to access housing, ‘even in terms of renting.’ If an individual mentions they are LGBTQ+, ‘they are prohibited or denied access to it without any other reason.’ In terms of education, ‘there is no access to it’ as ‘most of the teachers and professors’ are homophobic and transphobic.”
[16] According to the Special Program on XXXX XXXX XXXX XXXX XXXX XXXX XXXX, LGBTQ individuals have access to employment in Mexico City but face discrimination when they share their sexual orientation or when it is discovered.
[17] Crimes against sexual minorities are consistent and constant, including intolerance and discrimination, persistent homophobia, homicide, arbitrary detention, and physical violence.
[18] NDP Item 6.4 states that there are two (2) primary gender roles in current Mexican society, machismo and marianismo. Masculinity, or machismo, is valued as being superior to femininity, or marianismo. Mexican society is therefore particularly hostile to any sign of feminine in a man and, to a lesser degree, of masculine in a woman. Gender expression is also used as a point of reference for a person’s sexuality. Mexican children are taught to adhere to characteristics or behaviour accorded with their biological sex and are often told that deviating from these norms will result in punishment or ostracism.
[19] It further states that homophobia and transphobia are prevalent in Mexican society. Discrimination on the basis of sexual orientation and gender identity continues to be a structural phenomena with extensive social roots. Many LGBTQ individuals throughout the country still consider it difficult to live openly as SOGIE-diverse individuals because they fear harassment, violence, assault, and other negative societal consequences. Crime against sexual and gender minorities are constant and, in many cases, unmotivated by prejudices. This is specifically relevant when it comes to people living with XXXX.
[20] The NDP also talks about increase in violence against LGBT community. It states that a prominent — a predominant indicator of the rampant negative social perceptions of SOGIE diversity is the increasing rates of LGBT-targeted violence. In 2016’s survey of 613 LGBTQ-identified persons across Mexico, 62 percent of trans women, 51 percent of trans men, 35 percent of men, 23 percent of women, and more than 38 percent of intersex persons were victims of physical aggression due to their gender identity or sexual orientation. Additionally, 473 LGBTQ persons were known to be murdered in Mexico for reasons relating to SOGIE between 2013 and 2018. In 2019, Mexico saw the highest number of LGBTQ-targeted murder in five (5) years. 117 SOGIE-diverse individuals were killed, which was an increase of 37 percent from 2018.
[21] This means that one (1) LGBTQ individual is murdered every three (3) days in Mexico. Comparatively, the general population saw homicide rate increase of 2.5 percent between 2018 and 2019.
[22] The distinctive feature that characterizes the homicides of LGBTQ people is the cruelty with which they are committed. Many victims are subjected to multiple forms of violence, including torture, sexual assault, (inaudible). Mexican LGBTQ activists, groups, and news sources connect this increase in violence with LGBT rights legislation.
[23] Based on credible oral testimony, documentary evidence, and objective evidence in the National Documentation Package, I find the claimant’s subjective fear of persecution is well-founded. I am satisfied that the claimant would face a serious possibility of persecution if he returned to Mexico and that this risk would continue.
State Protection
[24] The claimant testified that he was beaten and punched in 2019, but he did not reach out to the police as it is known that the police is hostile towards the LGBTQ community and do not take complaints from the LGBTQ members seriously.
[25] Item 7.18 in NDP reports that police forces in Mexico lack human and material resources to provide — to properly investigate crimes and that for all the murders resisted (sic) between 2010 and 2016, 94.8 percent of those cases had no suspects facing charges. Sources report that police officers collude with organized crime and poor working conditions in law enforcement agencies leave police officers particularly vulnerable to bribes and infiltration by organized crime.
[26] Item 7.8 of NDP reports that 80 percent of the police forces are controlled by the criminals, with sources noting that the criminal groups bribed the police, and the local police and politicians have been infiltrated by organized crime.
[27] Item 6.4 of the NDP states that the SOGIE-diverse individuals are disproportionately vulnerable to arbitrary arrests, detentions in Mexico. Same-sex couples who demonstrate public displays of affection are the frequent target of police abuse and arbitrary detention by state agents, often with excessive use of force or verbal abuse because of what is considered immoral behaviour in public spaces.
[28] It further states that approximately 90 percent of all the crime, including human rights violations, in Mexico go unreported. However, only four (4) percent of SOGIE-diverse people who experience discrimination report it. This is because SOGIE-diverse individuals often lack confidence in authorities’ abilities to investigate and punish hate crimes due to a long history of corruption in Mexican investigative agencies.
[29] Additionally, they may fear retaliation from the human rights violation — violators. Gangs and cartels are often perpetrators of violence against LGBTQ individuals, particularly trans women, and are largely treated with impunity by the police.
[30] And another reason is that the police officers are often perpetrators of these human rights violations themselves. So, many SOGIESC individuals fear further harm from authorities. SOGIE-diverse individuals are frequently harassed and arbitrarily detained by the state authorities due to their physical appearance, the way they dress, or for expressing affection in public.
[31] It further states that the — that despite the government’s promise to carry out effective investigations into LGBTQ hate crimes, most case — hate crimes against the LGBTQ community go uninvestigated in many instances when it has dismissed investigations of homophobic or transphobic murders by categorizing them as crimes of passion. Hate crimes against LGBTQ individuals are also most often not acknowledged or typified by state officials, which negatively impact national statistics and response to LGBT-targeted violence. State authorities have also reportedly used their power to intimidate, threaten, and inflict violence against SOGIE-diverse individuals toward Mexico.
[32] The claimant also submitted news articles regarding violence against members of the LGBTQ community, including articles about murder of magistrate who was murdered for being a homosexual. They showed that even though high government officials are also not safe from the violence against the LGBTQ community and that adequate state protection is not available for the LGBTQ individuals.
[33] Therefore, the objective documentary country evidence in combination with claimant’s personal circumstances — 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 on a balance of probabilities.
Internal Flight Alternative
[34] Mexico City was proposed as an internal flight alternative to the claimant. Given the absence of operationally effective state protection and the prevalence of homophobia and the violence against sexual minorities, specifically people living with XXXX XXXX XXXX in Mexico, including the — including by the police, I find the claimant would face a serious possibility of persecution throughout the country.
[35] While there are indications that rights of SOGIE individuals vary throughout the country, the Inter-American Commission on Human Rights reports in NDP Item 6.1 confirms that deep-rooted stereotypes and prejudice persist throughout the country towards SOGIE people.
[36] Item 6.2 states most sexual minorities report experiencing physical acts of violence or harassment based on their sexual orientation or gender identity. LGBTQ individuals have access to employment in Mexico City but face discrimination when they share their sexual orientation or when it is discovered.
[37] Item 6.4 of NDP suggests that gay men face significant violence, and Item 2.1 supports that those crimes against LGBTQ individuals are not isolated events but emblematic for current patterns of conduct and reflect a series of structural problems and intolerance in Mexican society.
[38] Given the objective evidence as discussed above, and the lack of adequate state protection for the LGBTQ community, I therefore find that the claimant does not have a viable internal flight alternative as the situation of LGBTQ persons as well as those living with XXXX XXXX XXXX in Mexico are consistent throughout the country.
CONCLUSION
[39] Based on the totality of the evidence, I find the claimant to be a Convention refugee as per section 96 of the Immigration and Refugee Protection Act, and therefore, I accept his claim.
——— REASONS CONCLUDED ———