2023 RLLR 50
Citation: 2023 RLLR 50
Tribunal: Refugee Protection Division
Date of Decision: July 18, 2023
Panel: Alexander Pannu
Counsel for the Claimant(s): Pablo Irribarra Valdes
Country: Mexico
RPD Number: TC2-26956
Associated RPD Number(s): TC2-26963
ATIP Number: A-2023-01721
ATIP Pages: 000041-000050
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of XXXX (the “claimant”) and XXXX (the “associate claimant”), citizens of Mexico who are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
ALLEGATIONS
[2] The allegations are set out in the claimants’ Basis of Claim (BOC). In summary, the claimants are lesbian partners and were social activists in Puerto Vallarta, Jalisco state. They claim that they face a well-founded fear of persecution in Mexico because of their sexual orientation and a risk of harm from government officials who opposed their anti corruption denunciations and media activities.
DETERMINATION
[3] The claimants have established that they face a well-founded fear of persecution because of their membership in a particular social group, namely lesbian women. They also face a risk of harm from government officials because of their legal denunciations against corruption and exposing them to the media.
[4] The panel finds that the claimants have a well-founded fear of persecution and face a serious possibility of harm if they return to Mexico. Accordingly, I find that they are Convention refugees, and I accept both the claimant and associate claimant’s application for refugee protection under s.96 of IRPA.
ANALYSIS
Identity
[5] The claimants established their identity, on the balance of probabilities, as citizens of Mexico through their testimony and by submitting a copy of their Mexican passports.
Nexus
[6] The panel finds that there is a nexus between the claimants’ allegations and one of the grounds for being a Convention refugee, namely membership in a particular social group, based on sexual orientation. The claimants identify as lesbians. It is well-established that those fleeing persecution on account of their sexual orientation fall within the ambit of the particular social group category in Canadian refugee law. Their claims were assessed primarily under s.96 of the Act.
Credibility
[7] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.[2] Both claimants’ testimonies were consistent with their BOC narratives. Their responses to the panel’s questions were spontaneous and they did not embellish their evidence. Based on their testimony and the documents submitted as evidence, I find on a balance of probabilities that the claimants and their evidence are credible.
Well-Founded Fear of Persecution
Subjective Fear
[8] The claimant testified she grew up with siblings in a devout Catholic home in Acapulco, Guerrero state. Her father held very conservative views about the role of men, women, and the family, and her mother deferred to her older husband. Her family environment in which she grew up in was one in which traditional views of society were the norm, with anything outside of that – like homosexuality – being considered immoral and wrong and not spoken about.
[9] She realized she was attracted to women as a young girl but never acted upon her feelings because of the homophobic attitudes other family. As she grew older, she was pressured by her mother to act more feminine and have a boyfriend. Her older brother continued to insult her with derogatory names given to lesbians in Mexico. The claimant said at times she felt XXXX.
[10] The claimant had her first relationship with a woman, XXXX, when she was 20 and studying at a XXXX institution while living with her godparents in Guadalajara. She moved back in with her parents when they relocated to Guadalajara for work. Her parents were suspicious of the claimant’ s relationship with XXXX, and she admitted to them that she was lesbian. The disapproval of both their parents led Ms. XXXX and XXXX to run away together to Puerto Vallarta in 1991. The claimant’s father learned of their location and went to their house and physically attacked them with a hammer.
[11] The relationship with XXXX eventually ended and the claimant had relationships with XXXX and then XXXX before she met the associate claimant in XXXX 2011. Ms. XXXX submitted a letter as evidence corroborating her relationship with the claimant.[3] Ms. XXXX and Ms. XXXX have been in a relationship since then. The claimant submitted photos and social media posts to corroborate their long-term relationship.[4]
[12] The claimant testified that she and the associate claimant kept their relationship secret at first to avoid homophobic harassment. In 2014, their neighbourhood in Puerto Vallarta was flooded and the residents lost most of their possessions. They believed the local government had accepted bribes to allow construction of homes in a flood-prone area and to approve construction of a bridge which caused the flood. The claimant and her neighbours filed a complaint against the local government to compensate them for the flood damage to their homes and to correct the construction work. The claimant sent out and engaged with media to expose the government officials. They discovered that funding had been authorized to pay damages but had not been paid to the people affected. The claimant and neighbours filed a criminal complaint with the Prosecutor’s office against the officials for the diversion of funds.
[13] The claimants pressed for action for two years, but their criminal complaint went nowhere with the Prosecutor. The claimants received threatening messages on their phones and in person warning them to stop investigating the complaint. People in the Prosecutor’s office hinted to them to drop their complaint.
[14] In XXXX 2016, the claimants and three other women formed a XXXX to XXXX. They secured space in a public square, XXXX, to XXXX and paid rent to the City of Puerto Vallarta. However, when they asked for rental receipts for tax purposes, they discovered that some city officials were pocketing the rents paid by hundreds of businesses operating in the city’s XXXX.
[15] The corrupt officials cancelled a popular event in the XXXX and spread disinformation to other merchants blaming the claimants for the cancellation. The claimants were threatened by some of the merchants. The XXXX filed a criminal complaint against the XXXX for Puerto Vallarta, XXXX and his XXXX for the diversion of the rents and for defaming them by blaming them for the event cancellation. A copy of the complaint was submitted as evidence.[5] The XXXX and regularly briefed the media. A former member of the XXXX, submitted a letter as
evidence corroborating the claimant’s account of the flooding complaint and diversion of rents for the XXXX.[6] A neighbour and member of the XXXX, also submitted a letter corroborating the claimant on the two incidents in question.[7]
[16] The claimants started receiving explicit threats from officials in the XXXX asking them to stop their activities. The claimants stopped their media activity, but harassment continued. The claimant lost her job working for the XXXX. The XXXX’s licenses to XXXX were revoked. The claimant testified that unknown men in civilian clothes were monitoring their home and taking photographs.
[17] On XXXX, 2020, six armed men in civilian clothes in police vehicles attempted to take the claimants from their home, allegedly to the Prosecutor’s office. The claimants
refused to go with the men. A neighbour, XXXX, witnessed the armed men at the claimant’ s door and submitted a letter as evidence.[8]
[18] The claimants fled Puerto Vallarta and went to Ms. XXXX’s mother’s house in Nayarit. They hid when armed men came to the house in XXXX 2020. They next hid at the claimant’s brother XXXX’s house in Guanajuato from XXXX 2020 until XXXX 2021 when he started receiving death threats on his phone. XXXX submitted a letter as evidence corroborating the claimant’s account.[9] The claimants returned to hide at Ms. XXXX’s mother’s house from XXXX to XXXX 2021. Armed men again went to Nayarit to look for the claimants. The claimants finally hid at Ms. XXXX parents’ place in Guadalajara until they fled to Canada in XXXX 2022.
[19] Based on the testimony and documentary evidence, I find on the balance of probabilities that the claimants established they are lesbians and suffered persecution because of their sexual orientation. I also find that the claimants face a risk of harm from corrupt government officials whose activities the claimants helped expose.
Objective Evidence
[20] According to the objective evidence, although there have been advances in Mexico’s legislation to recognize equality, discrimination based on sexual orientation, as well as gender identity and expression, is a structural phenomenon rooted in Mexican society, and occurs daily, at multiple levels: in family, work and institutional environments.[10] Both claimants testified that their families were strongly against the LGBTQ community and their relationship was largely secret in public except to their friends and fellow members of the community. In accordance with Guideline 9, the claimants cannot be expected to hide their sexual orientation to live safely in Mexico.
[21] The evidence also shows that legislative attempts to stop discrimination do not necessarily translate into effective actions in reality for members of the LBGTQ community. Laws providing rights to sexual and gender minorities over the past five years have made them more visible in Mexican society, and as a result more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is ‘contagious’. These fears have in turn led to hate crimes and murders of LGBTQ people.[11]
[22]I considered the points raised in the Chairperson’s Guideline 9 on Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.[12] Based on the objective evidence and testimony, I find on the balance of probabilities that the claimants have a well-founded fear of persecution based on their gender and sexual orientation if they return to Mexico.
State Protection
[23] There is a presumption that a state has the capability to protect its citizens. A claimant can rebut that presumption, on the balance of probabilities, with clear and convincing evidence. The claimant has an obligation to approach state authorities for protection if the protection might reasonably be forthcoming or it is objectively reasonable to seek protection. The burden of proof is directly proportional to the level of democracy in the country.
[24] Mexico is a federal presidential republic with free and fair elections, a large population of 130 million people and the 11th largest economy in the world. The claimant’ s burden of proof is high.
[25] The objective evidence however shows that corruption, including within the armed forces and federal police, underpins state collusion with criminals. Local police are particularly vulnerable to corruption and infiltration from organized crime groups, as they are overworked, underpaid, and understaffed. The federal government has said infiltration by organized crime is a problem in many police forces around the country.[13]
[26] The claimants said they received threats from members of the government that were supposedly investigating their criminal complaints against corrupt government officials. The claimant testified that armed men in police vehicles came to her house to possibly kidnap her at the direction of the corrupt government officials they had angered. This incident was witnessed by a neighbour.
[27] After considering the objective evidence, the documentary evidence, and the testimony, I find on the balance of probabilities that there is clear and convincing evidence that the claimants cannot receive adequate state protection in Mexico should they return.
Internal Flight Alternative
[28] The two-pronged test for an IFA is well-established. The panel must be satisfied, on the balance of probabilities, that:
a) the claimant would not be subject personally to a danger of torture or to a risk of life or a risk of cruel and unusual punishment, or face a serious possibility of persecution in the proposed internal flight alternative; and
b) that conditions in that part of the country are such that it would be objectively reasonable, in all the circumstances, including those particular to the claimant, for them to seek refuge there.[14]
[29] The panel has considered the two prongs in assessing whether a viable internal flight alternative exists for the claimants and finds that it does not. On the evidence before me, I find that there is a serious possibility of the claimants being persecuted in any part of Mexico. The claimants would not attempt to hide their sexual orientation should they return to Mexico, nor are they required by Canadian refugee law to do so. The objective evidence shows that persecution based on sexual orientation is widespread throughout Mexico and even in so-called gay-friendly neighbourhoods in Mexico City and some tourist cities, members of the LGBTQ community are targeted for verbal and physical assaults and robberies.
[30] Mexico remains a conservative country outside of some neighbourhoods in Mexico City and some of the cities catering to tourists. Conservative attitudes prevail in parts of the country and public displays of affection between members of the same sex may not be considered socially acceptable in some areas. Discrimination based on sexual orientation and gender identity is widely prevalent, despite a gradual increase in public tolerance of LGBTQ individuals according to public opinion surveys.[15]
[31] Accordingly, I find on a balance of probabilities, that there is no viable IFA in Mexico.
CONCLUSION
[32] Based on the totality of the evidence and the analysis above, the panel finds that the claimant has a well-founded fear of persecution pursuant to section 96 of the Act.
Accordingly, her claim and the claim of the associate claimant are accepted.
(signed) Alexander Pannu
July 18, 2023
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Maldonado v. Canada (M.E.I.), [1980] 2 F.C. 302 (C.A.)
[3] Exhibit 5 – claimant disclosure
[4] Exhibit 5 – claimant disclosure
[5] Exhibit 5 – claimant disclosure
[6] Exhibit 5 – claimant disclosure
[7] Exhibit 5 – claimant disclosure
[8] Exhibit 5 – claimant disclosure
[9] Exhibit 5 – claimant disclosure
[10] NDP Mexico April 29, 2022 Item 6.2
[11] Ibid.
[12] Chairperson’s Guideline 9 on Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics – revised December 2021
[13] NDP Mexico April 29, 2022 Item 10.2
[14] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.)
[15] NDP Mexico April 29, 2022 Item 6.1