2023 RLLR 49
Citation: 2023 RLLR 49
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2023
Panel: Peter Karambelas
Counsel for the Claimant(s): Sandra M. Gonzalez Ponce
Country: Mexico
RPD Number: TC2-12570
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: 000036-000040
DECISION
[1] MEMBER: This is a decision of the Refugee Protection Division for XXXX. You are a citizen of Mexico and claim protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I considered your testimony and the other evidence in your claim, and I will now render my decision. The written decision will be mailed to you in due course.
ALLEGATIONS
[2] You fear persecution in Mexico because of threats and physical abuse be received by people demanding that you XXXX in your role as an XXXX Hidalgo. You also feel - fear persecution from Mexican authorities and society because of your identity as a gay man. You alleged that there is no state protection for you and no internal flight alternative in Mexico.
DETERMINATION
[3] You are a Convention refugee pursuant to section 96 of the IRPA, as you face a serious possibility of persecution in Mexico because of your membership in a particular social group, as a gay man.
ANALYSIS
Identity
[4] Your personal and national identity is established by a copy of your Mexican passport.
Credibility
[5] There is a presumption in Canadian refugee law that when someone promises to tell the truth, as you did, the testimony that follows is true, unless I have good reason to doubt it. You testified in a generally consistent, spontaneous, and straightforward manner regarding the central elements of your allegations. There were no material inconsistencies in your evidence which have not been satisfactorily explained. The presumption of truth holds in your claim. I can believe and rely upon your evidence.
[6] Specifically, you established with your moving testimony and corroborative documentation that you are a gay man who has experienced relentless homophobia harassment in the workplace from your superiors and other colleagues, including in your XXXX role as an XXXX. Your direct superior and a recent XXXX role even refused to share an office with you because he assumed you were gay.
[7] You have also experienced anti-gay harassment in public, including an incident of sexual assault in XXXX 2018 during which you were groped and ridiculed by a man. You were publicly harassed twice when you tried to show affection to your former partner, OA (ph). You have made other gay friends in Canada and have been able to express yourself as a gay man here in ways that you feel are impossible in Mexico because of the strong anti-gay sentiment there.
[8] You provided supplementary documentation to corroborate your allegations, including articles describing routine violence against members of the LGBTQ+ community in Mexico, and a letter from a gay friend in Canada, who describes how you met, the joy of being able to relate to other Spanish-speaking gay men in Canada, and the frank conversations you have had about the difficulties you have suffered in Mexico because of your sexual orientation.
[9] I find that these documents corroborate your allegations regarding your sexual orientation and the ant-gay discrimination you have endured in Mexico.
Objective Basis
[10] Your fear of persecution is established by your credible testimony. l also find that your claim is objectively well-founded. The objective evidence consistently indicates that the legal protections and recognitions of LGBTQ+ persons that exist in Mexico do not accurately reflect the actual situation for many sexual minorities in that country, which is often dire.
[11] There is a federal ban on discrimination based on sexual orientation in Mexico, and same-sex couples can be married there. At the same time, anti-LGBTQ+ discrimination at the societal level is widespread, with transgender individuals facing some of the most extreme forms of persecution. I infer from this mixed evidence that sexual minorities in Mexico are not treated identically by society and authorities.
[12] It is therefore necessary to consider your personal circumstances and whether or not those circumstances internet with Mexican society and the authorities in such a way as to create a serious possibility of persecution for you.
[13] You are a gay man, and you testified that you experienced homophobic harassment by people in the workplace and in public for being perceived as gay, despite you not being open to most people about your sexual orientation. You testified that your speech and mannerisms may be interpreted by others as feminine or gay. I therefore find from your evidence that your identity as a gay man is obvious to most onlookers.
[14] I find that gay men who are easy to — I find that gay men who are easy to identify as gay men by employers, colleagues, authorities, and society generally, are at greater risk of suffering a homophobia endemic in Mexican culture. Your personal experiences bear this out. You credibly testified to routine harassment at work and in public for being perceived as gay. This aligns with the survey identified at Item 6.4 of the NDP, which indicate that half of all LGBTQ+ respondents experienced harassment or discrimination in the workplace, and that gay men in particular constituted 31 percent of the known 117 LGBTQ+ members in Mexico during the 2018-2019 period.
[15] Because you were a XXXX in Mexico who worked side by side with XXXX your experience of publicly identifiable gay members also exposed you to anti-gay discrimination by Mexican law enforcement. Your experiences of harassment by your colleagues who are XXXX are echoed by accounts of XXXX homophobia in the objective evidence.
[16] For example, the NDP discusses an incident during which two (2) men were arrested for kissing on a beach in Quintana Roo. Your experience of homophobic sexual assault in XXXX 2018 is unfortunately unsurprising considering the objective evidence.
[17] An lnter-American Commission of Human Rights, IACHR, report discusses concern with regard to the rising number and increasingly violent nature of crimes based on prejudice against LGBT persons, and the civil rights organization, Letra Asida (ph), even reports on the existence of criminal gangs dedicated to targeting gay men.
[18] ln view of the above, I find that your fear of persecution in Mexico is well-founded.
State Protection
[19] If refugee claimants have access to adequate national or state protection of their country of citizenship, they do not require Canada for protection. lt is incumbent on claimants to rebut the presumption of state protection with clear and convincing evidence. You testified that if you were to ever report the anti-gay harassment you had experienced in Mexico to the authorities, such as to the police, they would laugh at you.
[20] You testified that police would not work and routinely called you anti-gay slurs. You believe that the authorities in Mexico have considered gay men to be unserious clowns. You fear not being able to access state protection. It is against your fear of — your fear of not being able to access state protection as a gay man is represented in the objective evidence. lt indicates that legal protections for LGBTQ individuals in Mexico are not uniformly enforced. And if the government did not always investigate and punish those complicit in abuses against LGBTI individuals.
[21] When considering your attempts to access protection in the — let me rephrase that. In considering your evidence regarding your hesitancy to access state protection, and the objective evidence, I find that you have rebutted the presumption of protection in Mexico.
Internal Flight Alternative
[22] If refugee claimants can flee to safety within their own country, they do not require Canada’s protection. The Panel must apply a two (2)-prong test to determine whether there is a viable effect. First, the Panel must be satisfied on a balance of probabilities there is no serious possibility of persecution in the proposed location. And second, conditions in the proposed IFA must be such that would not be unreasonable in all the circumstances, including those particular to you, for you to seek refuge there.
[23] Most of the anti-gay discrimination you have experienced occurred in the city of Hidalgo. When I asked you about whether or not you could be safe in Mexico City, you testified that while you considered moving elsewhere in the country before moving to Canada, you real ized that nowhere would be safe for you, that your relatives in other areas like Mexico City and Michoacan, advise you — they do not believe you could be safe there? You discussed the case of a high-profile magistrate in Mexico City who was murdered for advancing a pro LGBTQ+ policy agenda. And you reiterated that you do not think anywhere would be safe.
[24] The objective evidence seems to indicate that some places in Mexico, including urban centers like Mexico City, are safer and more welcoming of LGBTQ+ individuals than others. For example, Mexico City legally recognizes changes in gender identities, while other places like Monterrey and Mérida do not. And recent national survey indicates that residents of Mexico City have significantly less homophobic views than the national average when it comes to attitudes towards same-sex couples living together.
[25] However, it remains unreasonable to expect you to hide or change a fundamental aspect of who you are to be safe in Mexico. In view of your particular circumstances as a publicly identifiable gay man who has experienced relentless homophobia and working in public, in conjunction with the objective evidence, which discusses the prevalence of homophobia throughout Mexican society, it describes anti-LGBTQ discrimination in Mexico as a structural phenomenon with extensive social roots.
[26] I find on a balance of probabilities that you would face a serious possibility of persecution throughout Mexico. As you face a serious possibility of persecution throughout Mexico, there is no viable IFA for you in that country. Tt is not necessary for me to assess the second prong of the IFA test.
CONCLUSION
[27] You are a Convention refugee pursuant to section 96 of the IRPA, as you face a serious possibility of persecution in Mexico because of your membership in a particular social group, as a gay man. Accordingly, I accept your claim.
——— REASONS CONCLUDED ———