2023 RLLR 27
Citation: 2023 RLLR 27
Tribunal: Refugee Protection Division
Date of Decision: August 10, 2023
Panel: Lesley Stalker
Counsel for the Claimant(s): N/A
Country: Mexico
RPD Number: VC3-04137
Associated RPD Numbers): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision in the refugee claim of XXXX XXXX XXXX XXXX, a citizen of Mexico, who is seeking protection in Canada under section 96 and section 97(1) of the Immigration and Refugee Protection Act.
[2] As your claim is based on your sexual orientation, I have considered and applied the Chairperson’s Guideline on proceedings before the IRB involving sexual orientation — sorry. Wrong — Chairperson’s Guideline on gender considerations in proceedings before the Immigration and Refugee Board.
ALLEGATIONS
[3] You fear that you will be persecuted in Mexico because of your sexual orientation. In your Basis of Claim form, you describe being bullied at school because of your appearance and manner. When your mother tried to report the bullying to the school principal, the bullying intensified. When you were between eight (8) and 10 years of age, you were raped by — the second rape by a police officer who held a gun to your head. You did not tell anyone what had happened for shame and fear.
[4] As an adult, you experienced overt discrimination in the XXXX or XXXX XXXX in which you worked. You eventually left the company but had trouble finding other jobs, in part, because of your sexual orientation. You also describe the challenges you had in finding housing with your gay partner and these experiences, together with other incidents of discrimination, have taken a toll on your mental health.
[5] In XXXX 2022, you and a fellow XXXX came to Canada to volunteer with a local XXXX company and the director of that company had promised to help you get work permits. When you arrived, however, you learned that she would not be able or was not willing to help you with work permits. You could not face returning to the discrimination and fear in which you had lived in Mexico and so you filed this claim for protection in January 2023.
DETERMINATION
[6] I find that you are a Convention refugee, pursuant to section 96 of the Immigration and Refugee Protection Act, on the basis of your membership in a particular social group, namely gay men.
ANALYSIS
Identity
[7] I am satisfied as to your identity by virtue of your testimony, the corroborative evidence that you have filed and your Mexican passport, a certified copy of which is on file.
Credibility
[8] I found you to be a very credible witness. You answered my questions readily and thoughtfully. I asked you about the Pride flag hanging on the wall behind you. You said the flag symbolizes your ability to express yourself freely, something you could not do in Mexico. You describe the humiliation, frustration and horror of repeated discrimination because of your sexual orientation.
[9] You recounted accompanying your sister, who was transitioning from being male to female, to surgery related to her transition. You said the two (2) of you experienced discrimination on the bus. When returning from the surgery, you tried to get a taxi. The driver refused to let you in. An onlooker intervened and said that she would report the taxi driver if he did not accept you. He took you part of the way and forced you to get out, leaving you to walk home in the streets that were dangerous.
[10] When I asked you how classmates or landlords or employers would know that you were gay, you said that it is, in part, because of your appearance and the way you walk. You are a XXXX and have a — I think you used the word, ‘delicate,’ way of walking. You also used the word, ‘effete or effeminate,’ to describe yourself in your Basis of Claim form.
[11] You described an incident in which you and a partner were returning from a hike. Two (2) police officers were at the base of the trail. They stopped you and said they needed to search you, your bodies and your belongings for drugs. They fondled your buttocks. When you asked them to let you go, they said they would do so if you performed oral sex on them. The officers then realized that others were coming down the trail and so let you go. You immediately left and returned home. You said that you never filed a complaint with the police about the discrimination assaults or other problems you experienced. You said that you have not wanted to have anything to do with the police since childhood. The sight and thought of them fills you with fear and disgust.
[12] You filed many documents to corroborate your allegations and these include one (1), statements from two (2) XXXX, one (1) male and one (1) female, from the XXXX company where you worked for five (5) years. They each describe the discrimination that you and other gay men in the company suffered. Two (2), statements from two (2) of your former partners, XXXX and XXXX (ph), XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and XXXX. They confirmed their relationship with you and the experiences that they have experienced as gay men in Mexico. Photos of your sister who is a transwoman. Four (4), photos of the XXXX company where you worked for five (5) years. I have no reason to doubt the reliability or the authenticity of any of the documents that you have provided.
[13] In view of your credible testimony, as well as the corroborative evidence, I am satisfied that you are a gay man and that you have experienced the problems you describe in your BOC.
Well-Founded Fear of Persecution
[14] The next question is whether you have a well-founded fear of persecution, in the future, if you go back to Mexico. This is two (2) parts. First, are you generally afraid of harm if you go back? And secondly, is your fear well-founded?
[15] I find that you are — you have shown a genuine fear of persecution in Mexico if you return and try to live your life as a gay man. You have described the harassment and harm and discrimination and violence that you experienced over many years.
[16] The next question is whether your fear is well-founded and I find that it is. The country reports in the Board’s National Documentation Package from Mexico says that the government of Mexico has taken some steps to affirm the rights of LGBTQ persons. In 2011, the first article of the Constitution was updated to include discrimination based on sexual orientation. As well, federal laws to prevent discrimination were amended in 2014 to prohibit violence against sexual minorities. All 32 states in Mexico have anti-discrimination laws. Unfortunately, these legal initiatives did not seep down into the culture. A source in the IRB Response to Information Request, at Tab 6.4 of the NDP, states that discrimination on the basis of sexual orientation and gender identity continues to be a structural phenomenon with extensive social roots.
[17] The Response to Information Request, at Tab 6.5 of the NDP, elaborates on these social roots. “In Mexico, there are traditionally two (2) primary gender roles, machismo and marianismo.” M-A-R-I-A-N-I-S-M-O. “In Mexico, the confluence of two (2) cultures, Spanish and Indigenous, that have idealized the hypermasculinity of a warrior, has produced a popular culture that is particularly hostile to any sign of effeminate in a man. Spaniards and Aztecs alike were draconian in their treatment of sexual nonconformists.”
[18] The Response to Information Request, at Tab 6.2 of the NDP, indicates that discrimination against sexual minorities remains prevalent across Mexico, including in the workplace. Access to housing and access to healthcare. This accords with your account of discrimination when looking for work and looking for accommodation. The Response to Information Request, at Tab 6.4 of the NDP, includes observations by the UN’s special rapporteur, who notes that there has been an alarming pattern of homicides against gays, lesbians, bisexual and transgender individuals in Mexico. The special rapporteur says there is broad impunity for these crimes and sometimes complicity is facilitated by the complicity of investigative authorities. US Department of State report, at Tab 2.1 of the NDP, says that violence targeting LGBTQ persons is one (1) of the most significant human rights issues in Mexico.
[19] And I note that the IRB’s Gender Guidelines remind us that, “11.3.2, discrimination may amount to persecution if the consequences to the individual are of a substantially prejudicial nature, such as the right to earn a livelihood, rights to private and family life, rights to access public places, freedom of movement or the right to education. Harassment in some cases may constitute persecution if it is sufficiently serious and occurs over a period of time such that a claimant’s physical or moral integrity is threatened.”
[20] So I find in your case that you have experienced incidents of violence, but also incidents of discrimination, that have occurred over a long period of time that have affected your ability to earn a living and livelihood, to move about freely in public spaces and or to find safe housing. I further find that this persistent harassment and discrimination has threatened your physical or moral integrity. I, therefore, find that you, as a member of the LGBTQ community, have established a well-founded fear of persecution.
State Protection
[21] States are presumed to be capable of protecting their citizens, except in situations where the state is in a condition of complete breakdown. To rebut the presumption of state protection, claimants have to show clear and convincing evidence that the state protection would be inadequate.
[22] For your case, I find that you have rebutted the presumption of state protection. Many of the experiences of violence, harassment and threats were at the hands of the police, including your rape by a police officer when you were a child. You also described how your sister, a transwoman, was recently injured when trying to escape police who were running after her.
[23] Your account of police misconduct accords with the information in the National Documentation Package. The US Department of State report at Tab 2.1, the Austrian Red Cross report at Tab 6.1 and the Response to Information Requests at Tabs 6.2 and 6.4 indicate that members of the LGBTQ community continue to face violence and the police are, at best, indifferent or perhaps, at best, ineffective and, at worst, actively complicit. The RIR, Response to Information Request, at Tab 6.2 of the NDP, reports that, “Civil society groups claim police routinely subjected LGBTI persons to mistreatment while in custody, including physical violence, arbitrary detention and due process violations.” And the same report indicates that police harassment against the LGBT community remains high, even in Mexico City, which is considered the safe city for LGBTQ persons.
[24] The Austrian Red Cross report, at Tab 6.1 of the NDP, says same sex couples showing public displays of affection are a frequent target of police abuse and arbitrary detention, often with excessive use of force or verbal abuse, because of what is considered immoral behaviour in public spaces.
[25] So given your own experiences and the country reports on the attitudes of police towards LGBTQ persons, I find that the state would be unwilling or unable to provide adequate protection to you if you were to return to Mexico.
Internal Flight Alternative
[26] The final question is whether you can avoid the problems you fear by moving to a different part of Mexico. In particular, I proposed Mexico City as an internal flight alternative. I find that you would not have a viable IFA. You stated that you moved to different states, in an effort to get away from the discrimination and violence, Nayarit and Michoacan, but that life was no better for you in those states.
[27] The country evidence suggests that larger cities like Mexico City are more gay friendly than other parts of the country, but the reports indicate that the violence and discrimination, which has been outlined above, still exist in these cities. The report entitled, “Queer Refugee Hearings,” at Tab 6.8 (sic) of the NDP, states as follows, “Although Mexico City is internationally perceived as, “gay friendly,” a 2017 report states that homophobic and transphobic discrimination is pervasive. Participants said they were primarily discriminated against in public spaces at school and by their family. 20 to 25 percent of the population reported not being able to speak openly about their SOGIE.” S-O-G-I-E. SOGIE refers to sexual orientation and gender identity and expression. “Additionally, almost one (1) third of participants said they would not experience — report experience of discrimination based on their SOGIE because of perceived state corruption in favour of the perpetrator, the unlikelihood of state action and the bureaucracy that would be associated with the claim process. Mexico also has one (1) of the highest LGBTIQ targeted murder rates in the country.”
[28] So given the totality of the evidence before me, I find that you would face persecution because of your sexual orientation throughout Mexico and that there is no viable IFA available to you.
CONCLUSION
[29] I, therefore, find that you have established a well-founded fear of persecution in Mexico on the basis of your sexual orientation. I accept your claim.
——— REASONS CONCLUDED ———