2023 RLLR 34
Citation: 2023 RLLR 34
Tribunal: Refugee Protection Division
Date of Decision: November 21, 2023
Panel: Devin Macdonald
Counsel for the Claimant(s): Terry S. Guerriero
Country: Mexico
RPD Number: TC3-31007
Associated RPD Number(s): TC3-31008, TC3-31009
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision for the claims made by XXXX XXXX XXXX XXXX, who is the principal claimant, XXXX XXXX XXXX XXXX XXXX, who is the first associate claimant, and XXXX XXXX XXXX XXXX, who is the second associate claimant. They allege that they are citizens of Mexico, and they claim protection pursuant to sections 96 and subsection 97(1) of the Immigration and Refugee Protection Act.
[2] The claimants’ allegations can be found in their Basis of Claim form narratives at Exhibit 2.1 to 2.3. The associate claimants allege that they are a couple and the principal claimant is their friend. The claimants allege that they face a risk of persecution in Mexico from homophobic members of society due to their sexual orientations. They allege that they were targeted by a liquor shop keeper with a criminal affiliation because the first associate claimant rejected his advances and because of the claimants’ sexual orientations.
[3] In rendering this decision and considering this claim, the Panel has considered and applied guideline 9 on proceedings before the IRB involving sexual orientation, and gender identity and expression, and sexual characteristics, and the Panel has considered and applied Chairperson guideline 4, which is on gender considerations in proceedings before the Immigration and Refugee Board.
[4] The Panel determines that the claimants are Convention refugees pursuant to section 96 of the Immigration and Refugee Protection Act. The claimants’ fear stem from their sexual orientations. The claimants’ respective sexual orientations each constitute a particular social group. Therefore, the claims are assessed under section 96 of the Immigration and Refugee Protection Act. Moreover, the threats alleged by the associate claimants are intrinsically linked with their gender, and those fears have nexus with membership in a particular social group, as women fearing gender-based violence.
[5] With regards to identity, the Panel finds that the claimants have established their identities and the country of reference for this claim with their testimony and with copies of their passports issued by Mexican authorities and provided by the Minister at Exhibit 1.
[6] Having questioned the claimants and assessed the evidence on the record, the Panel finds that the claimants are credible witnesses. The claimants provided spontaneous and frank testimony regarding their respective sexual orientations. The first associate claimant provided convincing testimony to establish that the associate claimants are in a genuine relationship. She described how they met, how their relationship initiated, and gave spontaneous, detailed testimony on their relationship. The principal claimant provided detailed testimony on a same-sex relationship that he had in Mexico, and he provided a letter of support from his former partner, and his testimony included spontaneous tangential details not in the Basis of Claim narrative, which were presented in an unrehearsed manner with the ring of truth.
[7] The principal claimant also testified that the claimants experienced harassment, intimidation, and an unsafe environment when they attempted to participate in public life together in Mexico. Specifically, the principal claimant and the first associate claimant provided testimony consistent with each other and with their narrative about being harassed and threatened by the liquor store owner, with the associate claimant first in 2019, and then also about being attacked by the same man in XXXX and XXXX of 2022.
[8] The claimants provided witness statements from family and friends in Mexico confirming each of their sexual orientations and confirming that the associate claimants have been in a relationship since 2019. They provided a copy of the police denunciation filed by the second associate claimant against the agent of harm, and they provided employment and medical documents that corroborate the surrounding allegations in their claim.
[9] Sworn testimony is presumed true unless there is a reason to doubt it, and in the case at hand, the claimants’ testimony was consistent with their allegations, and the Panel finds no valid reason to doubt the genuineness or the veracity of the documents or the allegations that the documents support. The Panel finds on a balance of probabilities that the claimants are genuine in their alleged sexual orientations and that the associate claimants are in a same-sex relationship together. The Panel finds that the claimants have a genuine fear of harassment, intimidation, and an unsafe environment in Mexico. And based on the totality of the evidence, the Panel finds that the claimants have established a subjective fear of return to Mexico based on their sexual orientations.
[10] The claimants’ fears of return to Mexico is grounded in the objective evidence. The SOGIESC guidelines mention that concealment of one’s sexual orientation constitutes a serious interference with fundamental human rights, and that may constitute or that may amount to persecution. While there have been changes in the law in Mexico in an effort to curb violence and discrimination, sources indicate that sexual minorities continue to experience discrimination, harassment, and violence. This information can be found at Exhibit 3 at Item 6.2 of the National Documentation Package. An article submitted by the claimants to the RPD indicates that Mexico is experiencing a surge in violence against LGBT individuals despite the legal advances, and that can be found at Exhibit 5. The ongoing violence and discrimination based on sexual orientation and gender identity is reflected in the United States Department of State report at Item 2.1 of Exhibit 3, and that report highlights discrimination remains prevalent, and hate crimes based on sexual orientation and gender identity persist in Mexico despite legislative changes. The objective evidence also highlights that the rates of violence reported are likely underestimated, given the authorities’ complicity and indifference to acts of violence. And the objective evidence is consistent with the claimants’ evidence that they faced harassment and violence because of their sexual orientation. It also supports their assertion that they cannot live openly in Mexico without experiencing threats of violence. So, based on this analysis and the above information, the Panel finds that the claimants’ subjective fear of return to Mexico is well-founded.
[11] With regards to state protection, I find the claimants would not have access to adequate state protection upon return to Mexico. According to a report from the Inter-American Commission on Human Rights, same-sex couples showing public displays of affection are a frequent target of abuse and arbitrary detention by the police. This report also highlights that police have used violent raids to target members of the LGBT community, and that report can be found at Item 6.1 of Exhibit 3, which is the Austrian Red Cross document. Reports from non-governmental organizations indicate that crimes against LGBT individuals in Mexico are often incorrectly tracked and that there is a general failure of authorities to investigate these crimes. In this context, I find that the claimants would not have access to adequate state protection, should they return to Mexico.
[12] In considering whether the claimants could safely relocate within Mexico, I find that the objective evidence highlights that the incidents of discrimination and violence are widespread across Mexico. Item 6.4 of Exhibit 3 documents how even in the more friendly parts of the country, individuals are still at risk of violence and mistreatment. Therefore, I find that the claimants would have to hide their sexual orientation in order to live safely and openly in Mexico. And therefore, I find that they do not have a viable internal flight alternative.
[13] So, based on the foregoing analysis, the Panel has determined that the claimants have established that there is a serious possibility of persecution on a Convention ground if they were to return to Mexico. Their claims are therefore accepted.
——— REASONS CONCLUDED ———