2023 RLLR 7

Citation: 2023 RLLR 7
Tribunal: Refugee Protection Division
Date of Decision: December 12, 2023
Panel: Lusine Unanyan
Counsel for the Claimant(s): Natalie Banks
Country: Mexico
RPD Number: TC2-04580
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER:  So this is the decision in the refugee protection claim of XXXX XXXX XXXX XXXX who claims to be a citizen of Mexico and is claiming refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.  In deciding this claim I have taken into consideration and applied the Chairperson’s Guideline 4 regarding gender considerations and Guideline 9 involving proceedings before the Board involving sexual orientation, gender identity and expression.

[2]       Your allegations are fully set out in your Basis of Claim and subsequent amendment filed in the Exhibits.  In summary, you allege fear of harm from your father and his friends due to gender-based violence as well as fear of violence and discrimination from your family members and society at large in Mexico on account of your sexual orientation as a lesbian woman.  I find that you are a Convention refugee pursuant to Section 96 of IRPA. 

Identity

[3]       I find that your personal and national identity as a citizen of Mexico are established on a balance of probabilities based on your testimony and copy of your Mexican passport.

Nexus

[4]       I find that your allegations have a nexus to the Convention ground of membership in a particular social group of lesbian women and I have therefore assessed your claim under Section 96 of IRPA.

Credibility

[5]       A refugee’s sworn testimony is presumed to be true unless there are valid reasons to doubt their truthfulness.  In your case, I found you to be a credible witness and I accept your allegations on a balance of probabilities.  At your hearing today, you testified about your experiences of abuse as well as about your sexual orientation.  Your testimony was detailed and spontaneous and there were no material inconsistencies, omissions, or contradictions in your testimony or between your testimony and Basis of Claim and other documents on file.

[6]       You testified about how you grew up in a traditional society that does not accept diverse sexual orientations.  You testified about the impact of this on you and that you kept your same sex relationships private with only your mother and sister knowing about them.  Your testified about your fear of violence and discrimination on account of your sexual orientation and one of your experiences in forming this fear was that students at your former school were killed on account of their sexual orientation.  You testified about mistreatment and discrimination in society, including at your place of employment.  You also testified about your experiences of abuse at the hands of your father and his friends and though I did not require you to testify about the details of these experiences, I found the testimony that you did provide about them to be credible.

[7]       Finally, you testified about your pervious marriage to someone here in Canada, which ended, as well as your current marriage to your current spouse who I note was a support person during today’s hearing.  In support of your allegations, you have provided copies of marriage certificates from both marriages.  Other documents you have submitted in support of your allegations include photographs of you and your spouse, numerous letters of support from friends and community members as well as some family members, all of which confirm that you are married.  You also submitted other documents that go to support your marriage to your wife including a joint bank account statement.  I see no concerns on the face of the documents you have provided to support your claim and I find them credible and probative.  Accordingly, I attach full weight to these documents, which go to support your allegations.

[8]       I note that you lived in the United StateS for approximately four (4) years before coming to Canada and that you lived there without a valid immigration status.  You testified that you did not claim refugee protection there because you were unaware of the process as well as that you resided there with your father, whom you fear due to the history of abuse.  In Canada, you delayed in claiming for several months and you explained this by stating that you were initially unaware of the refugee process and you were also married to a Canadian for several of those months.  I note that delay in failure to claim are not determinative in and of themselves.  I find that your explanations adequately account for these issues and I do not draw negative inferences with respect to the credibility of your allegations.

[9]       So in view of all the above I find that you have established your subjective fear of persecution in Mexico on a balance of probabilities.

Well-Founded Fear of Persecution

[10]     I find that there is an objective basis for what you fear in Mexico for the following reasons.  Item 6.7 of the National Documentation Package for Mexico states that Mexico is a – is majority Catholic country and that the Catholic church has been opposed to the advancement of human rights for the LGBTQ people.  Children are taught to remain within the bounds of strict gender roles or else face ostracization.  The United States Department of State Report at Item 2.1 of the NDP indicates that several states have passed laws legalizing same sex marriage and promoting LGBTQ human rights, however, the IRB’s Response to Information Request at Item 6.2 notes that despite these legal provisions, progress regarding sexual diversity has been slow in Mexico.  This report says that discrimination based on sexual orientation as well as gender identity and expression are structural phenomena rooted in Mexican society and culture which occurs on a daily basis.  It states that there are no laws at the Federal level that ban conversion therapy.

[11]     Item 6.4 of the NDP states that the issue of sexual diversity is also absent in the legislation and executive agendas and continue to be considered taboo.  Sexual minorities experience abuse at the hands of the state including physical violence, arbitrary detention and due process violations.  Crimes against sexual minorities are constant including intolerance and discrimination, persistent homophobia, homicides, arbitrary detention, and physical violence.  Item 6.7 of the NDP states that homophobia and transphobia – sorry, the – a lot of the talking is getting my voice to break up.  Item 6.7 of the NDP states that homophobia and transphobia are prevalent in Mexican society and it has extensive social roots.  Crimes against sexual and gender minorities are frequent and are motivated by prejudices. 

[12]     Section 5.2 states that violence against women also continues to be a widespread problem and that femicide is the main cause of death for women aged 15 to 19.  6.5 of the NDP indicates that discrimination against sexual minorities remains prevalent across Mexico including in the workplace, access to housing, and health care.  So in view of all of the above objective evidence I find that your fear of persecution in Mexico is objectively well-founded.

State Protection

[13]     So you testified that the police have not helped you in your experiences in Mexico and your experiences are supported by the objective evidence about the availability of state protection in Mexico.  Item 7.18 states that police forces in Mexico lack human and material resources to properly investigate crimes and for all murders registered between 2010 and 2016, 94.8 percent of cases had no suspect facing charges.  Sources report that police officers collude with organized crime and that poor working conditions in law enforcement agencies leave police officers particularly vulnerable to bribes and corruption. Item 7.8 reports that 80 percent of police forces are controlled by criminals with sources noting that criminal groups bribe the police and local police and politicians have been infiltrated by organized crime. 

[14]     6.7 states that rules and public morals are at the police’s discretion, which combined with prejudice and discriminatory attitude against LGBTQ members can lead to abuses against sexual minorities.  The report states that police officers are often perpetrators of human rights violations and so many sexual minority individuals fear further harm from the authorities.  Furthermore, Item 5.20 states that there are deep-rooted institutional, structural and practical barriers which continue to hinder access for – to justice for women including that officials in the criminal justice system hold discriminatory stereotypes and have limited knowledge of women’s rights.  Complicity, indifference, and mismanagement of cases by law enforcement perpetuates violence and culprits often go unpunished. 

[15]     In light of the objective country condition documentation, I find that you have rebutted the presumption of state protection and that on a balance of probabilities, state – adequate state protection would not be available to you in Mexico.

Internal Flight Alternative

[16]     I have considered whether a viable Internal Flight Alternative exists for you in Mexico City.  Mexico City is known as the most progressive city in Mexico when it comes to LGBTQ rights and Item 6.2 of the NDP states that it has anti-discrimination laws to protect LGBTQ individuals and there are legal provisions in Mexico City that are favourable to LGBTQ individuals.  You testified that you would not feel safe there as a lesbian woman and that you also fear being found and harmed there by your father and his friends who abused you.  While I find that your evidence does not establish that your father or his friends would be motivated to target you there given that over 20 years and four (4) years respectively have passed since you had any contact with your father’s friends or your father, I do find that overall your particular circumstances and the objective evidence suggest that you do not have a viable IFA in Mexico City.

[17]     Given the absence of operationally effective state protection and the prevalence of homophobia and violence against sexual minorities in Mexico including by the police, I find that you would face a serious possibility of persecution throughout the country.  While there are indications that rights of LGBTQ individuals vary throughout the country, the Inter-American Commission on Human Rights reports at Item 6.1 of the NDP that deep-rooted stereotypes and prejudice persists throughout the country towards LGBTQ people and 6.2 states that most sexual minorities report experiencing physical acts of violence or harassment based on their sexual orientation or gender identity.

[18]     Item 2.1 states that these crimes are not isolated events but are emblematic of current patterns of conduct and reflect a series of structural problems of intolerance in Mexico.  With respect to Mexico City specifically, Item 6.4 states that even there the rights of LGBTQ people are treated as exceptions and protection is in the discretion of local officials.  Based on all of this evidence, I find that there is no viable Internal Flight Alternative available to you in Mexico City and that you would face a serious possibility of persecution throughout the country.

CONCLUSION

[19]     Based on the totality of the evidence, I find that you are a Convention refugee pursuant to Section 96 of IRPA and therefore your claim is accepted.

——— REASONS CONCLUDED ———