2023 RLLR 28

Citation: 2023 RLLR 28
Tribunal: Refugee Protection Division
Date of Decision: December 14, 2023
Panel: Rebecca Benest
Counsel for the Claimant(s): Robert J. Hughes
Country: Mexico
RPD Number: VC3-04220
Associated RPD Numbers): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER:  This is the decision of the Refugee Protection Division for XXXX XXXX XXXX XXXX.  You are claiming to be a citizen of Mexico and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Act or IRPA.  In assessing this claim, I have considered and applied the following guidelines.  Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics.  I have used the Guideline to ensure I substantively assess the claim and use trauma-informed questioning including leaving and coming back to questions as the claimant needed.  I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally.  The written decision will come to you shortly and may be amended to include specific citations to exhibits and case law as needed.

DETERMINATION

[2]       I find that you are a Convention refugee on the grounds of membership in a particular social group as a member of the LGBTQ+ community for the following reasons.

ALLEGATIONS

[3]       Your allegations are contained in your BOC narratives and testimony, but are summarised here.  You are a citizen of Mexico.  Starting around age nine (9), you experienced repeated sexual assault and rape from a cousin who will be referred to as JS.  This has created lasting trauma with significant effects to your mental and physical health.  You realised you were gay at around the age of 19 and were able to tell some close friends, but did not tell your family out of fear.  The following year, in 2019, you were drugged and sexually assaulted by a XXXX professor who will be referred to as JC.  You were eventually able to escape and retained an audio recording of part of this incident.  You reported this including the audio recording to the university, but they only switched your class and refused to help you further or hold the professor accountable.  You then reported this to the police, but they also offered no support or protection for you.

[4]       In 2020, you disclosed your experience with sexual assault to your parents and also told them that you are gay.  In response, your father verbally and physically assaulted you and continued to threaten you in various ways even after your return to university.  Throughout 2020 and 2021, your father and brother continued to threaten you, and your father threatened to send you to an institution to change your sexual orientation.  As a result of these experiences, you left Mexico and came to Canada in XXXX 2021.  You learned about the possibility of making a refugee claim in the summer of 2022 and applied to legal aid to make your claim.  In XXXX 2023, you started a relationship with your current partner, XXXX.  You met his family at his graduation XXXX XXXX XXXX and travelled to Ontario to meet his extended family in XXXX.  You allege that, if you return, you will be persecuted by the community at large as well as the police and state based on your sexual orientation.  You alleged that there is no state protection for you or an internal flight alternative.

Identity

[5]       Your personal identity and national identity as a citizen of Mexico has been established by your testimony in the supporting documents before me including your genuine Mexican passport.

Nexus

[6]       I find that there is a link between what you fear and one (1) of the five (5) Convention grounds, namely particular social group due to your being part of the LGBTQ+ community as a gay man.  I have, therefore, assessed this claim under section 96 of IRPA.

Credibility

[7]       Claimants benefit from the presumption that their allegations are true.  In this case, there were no omissions, inconsistencies, or other irregularities in the evidence that were not reasonably explained.  Your testimony was spontaneous, detailed, responsive to questioning, and unrehearsed.  You spoke with clarity and emotion about coming to an understanding of your identity and exploring that part of yourself and your first relationship with a classmate in XXXX school.  You spoke in detail about the pain of coming out to your parents, how it caused your father to hit you for the first time, and how he didn’t speak to anyone in the family for months after this.  You spoke about the continuous discrimination and violence you have experienced even as a child, when your XXXX teacher wouldn’t let you play soccer because he said your body was too feminine.  You spoke about the pain and the violence you and others you know have experienced in every city and town you have ever lived.  You also spoke with detail and joy about your current partner, XXXX, about how you met and started dating a week later, and how you love the pride he has in himself, and how supportive the relationship has been for you.  You spoke in detail about meeting his family recently and how it cemented for both of you the future you would like to create together.  You testified to your life in Canada, how you are more aware of who you are and less afraid of exploration, and more authentic and loyal to yourself.

[8]       I note that your claim is supported by the following documents; affidavits from two (2) close friends corroborating core elements of your claim, copies of WhatsApp messages and audio recordings from the night of the 2019 sexual assault, a copy of the Vancouver lease where you were living with your ex-partner RP, a letter and photos from your current partner XXXX, country conditions documents on conditions for LGBTQ+ individuals in Mexico.

[9]       I have no reason to doubt the authenticity of any of these documents and they corroborate core elements of your claim.  I, therefore, assign them full weight.  Accordingly, on the whole, in terms of your general credibility, I have found you to be a credible witness and I therefore, accept what you have alleged in your oral testimony and Basis of Claim form.  Namely, you have experienced extensive sexual assault and rape first from JS in your childhood and then from JC in university.  You shared your sexual orientation with your parents in 2020, and as a result, your father verbally and physically assaulted you.  Your father and other family members have continually threatened you including threatening to institutionalise you as a result of your sexual orientation.  You have experienced and witnessed countless acts of discrimination even as a child for taking ballet and having adults comment on the shape of your body or the way that you walk.  You had two (2) serious relationships in Mexico including an ex-partner who moved to Canada and lived with you in 2021 and 2022, and you have been in a close and strong relationship with your current partner, XXXX, since XXXX 2023.  Your subjective fear is established by your credible and corroborated testimony.  I also find that your claim is objectively well-founded.

[10]     According to the U.S. Department of State report on Mexico, Mexican Federal Law prohibits discrimination against lesbian, gay, bisexual, transgender, and intersex individuals.  I note that the Chairperson’s Guideline nine (9) directs that the absence of laws that criminalise or discriminate against LGBTQ+ individuals in a country does not signify a lack of discrimination in that country nor does it indicate that state protection is available.  Furthermore, the existence of laws addressing discrimination against LGBTQ+ individuals does not mean that discrimination does not take place.  Discrimination and violence against LGBTQ+ individuals does continue to be prevalent in Mexico.  For example, Item 6.1 is a report from 2017 that states that an average of 71 killings motivated by homophobia were committed per year for the previous 10 years.  The report also notes that those numbers are based on newspaper reports, so the actual numbers are likely higher.  A 2021 report at Item 6.7 describes how in Guadalajara, where you lived, there have been frequent attacks on men who use the male-specific dating app Grindr.  An LGBTQ+ rights activist is a source in the report and they state that these attacks are not new, but it is just an easier way for attackers to get to their victims.  The report also describes how victims are afraid to report these crimes due to fear of further retaliation.

[11]     A U.S. Department of State report at Item 2.1 states that there were 50 hate-crime homicides and four (4) forced disappearances against LGBTQ community members in the first eight (8) months of the year in 2021.  The report also indicates that discrimination against the community is prevalent.  While the country condition evidence such as the Freedom House report at Item 2.8 indicate that Mexico has taken legislative steps to prevent violence and discrimination against the LGBTQ+ community, it also indicates that those laws are not adequate or uniformly enforced.  This is also found in Response to Information Request at Item 6.4 that indicates that legislation to protect sexual minorities is only partially effective.  That RIR also quotes a Mexican official who indicates that crimes against sexual minorities are “consistent and in many cases motivated by prejudice.”  As indicated by the UN Special Rapporteur, there is “an alarming pattern of grotesque homicides of lesbian, gay, bisexual, and transgender individuals in Mexico and there is a broad impunity for those crimes, sometimes with the suspected complicity of investigative authorities.”  271 transgender and gender-diverse persons were reported to have been killed in Mexico between 2008 and 2016.  There have been several incidents in which police officers have been accused of kidnapping, torturing, and killing LGBTQ+ individuals.

[12]     The U.S. Department of State reports that violence targeting LGBTQ+ persons is one (1) of the most significant human rights issues in the country.  You have also experienced this personally.  You have faced extensive and violent experiences of sexual assault from a family member and a university professor, with the university and the police providing no measures of support including when presented with audio evidence of the assault.  You have experienced countless incidents of discrimination and threats of violence including from your own family and including threats to have you institutionalised on this basis.  In sum, while the laws themselves appear to be progressive, the social circumstances in Mexico reflect a heavily discriminatory and violent situation for the LGBTQ+ community.  The discrimination and abuse that the LGBTQ+ individuals face in Mexico is persistent, pervasive, and serious without protection from the state, and I find that it amounts to persecution.  I also note under the SOGIESC Guidelines, section 5.1.1 that being compelled to conceal one’s sexual orientation or gender identity constitutes a serious interference with fundamental human rights that may, therefore, amount to persecution.  A claimant cannot be expected to conceal their sexual orientation or gender identity as a way to avoid persecution in their country of reference.  As such, I find that you have established that you would face a serious possibility of persecution as a gay man in Mexico.  In sum, I find that you have established a well-founded fear of persecution from the community at large as well as from the state.

State Protection

[13]     A state is presumed to be capable of protecting its citizens, except in situations where the state is in a state of complete breakdown.  A claimant can rebut the presumption of state protection by providing clear and convincing evidence that state protection is inadequate.  Item 7.18 notes that Mexico has an extremely low rate of prosecution for all forms of crime.  Prosecutions can take years to complete and crime is unreported due to a generalised mistrust in authorities.  The objective evidence also indicates that the legislation that has been passed by the government to protect LGBTQ persons, which includes the Federal Law to prevent discrimination, is only partially effective and that the discrimination and violence against LGBTQ+ persons continues to be constant and prevalent across the country.  Item 6.4 indicates that the government does not adequately investigate crimes against LGBTQ+ individuals.  Even in larger cities, police are often involved in intimidation or extortion of same-sex couples.  In addition to mistreatment by police, the judicial system is not effective in investigating crimes committed against sexual minorities.  Item 6.4 also reports that the government did not generally investigate and punish those complicit in abuses against LGBTQ+ persons.  You have also experienced this personally after getting sexually assaulted by a professor.  You brought audio evidence of the assault to the police to make a report.  They told you that you didn’t have enough evidence and provided no measures of support or protection for you, with you stating “the laws only pretend to take care of you.”  As such, I find that state protection would not be reasonably forthcoming in this case.

Internal Flight Alternative

[14]     Similarly, I find that an Internal Flight Alternative would not be available to you in Mexico.  The test for a viable IFA has two (2) prongs.  First, I must be satisfied that you would not face a serious possibility of persecution and that you would not be personally subjected to a risk to life of cruel and unusual treatment or punishment or danger of torture in the IFA location.  Second, I must be satisfied that it would not be unreasonable in all of the circumstances including those particular to you for you to seek refuge there.  Although some evidence suggests that larger cities like Mexico City may be more gay-friendly than other areas of the country, the remaining evidence suggests that the brutal violence and discrimination described above against LGBTQ+ individuals still exists in these cities.  The evidence before me including NDP Item 6.4 indicates there is a pattern of grotesque homicides of LGBTQ+ individuals, and there is broad impunity for these crimes and sometimes complicity of authorities is suspected.  In terms of Mexico City, there are conflicting reports.  Some of the evidence before me indicates that hate crimes against LGBTQ+ persons are almost unheard of in Mexico City.  Yet, the same document goes on to indicate that there were several murders in Mexico City motivated by hate or prejudice.

[15]     Further, a more recent 2021 report at Item 6.7 indicates that Mexico City has one (1) of the highest LGBTQ+-targeted murder rates in the country.  The report also describes Zona Rosa as the gay village of Mexico City, but states that violence and discrimination against LGBTQ+ persons in establishments within Zona Rosa are frequent.  I also note that you have lived in several different towns and cities throughout your life, from small towns to large cities such as Guadalajara, and testified to experiencing violence and discrimination in all of them.  Therefore, despite certain safe zones, I do not find that there is a viable Internal Flight Alternative in Mexico where you could live openly as a gay man.  I find that the levels of discrimination you would experience would be sufficiently high to constitute a serious possibility of persecution throughout the country and the risk of physical attacks would be similar.  As such, an IFA is not viable in this case.

CONCLUSION

[16]     Based on the totality of the evidence and my analysis above, I find you to be a Convention refugee and I accept your claim.

——— REASONS CONCLUDED ———