2023 RLLR 8

Citation: 2023 RLLR 8
Tribunal: Refugee Protection Division
Date of Decision: December 15, 2023
Panel: Lusine Unanyan
Counsel for the Claimant(s): Marcela Donaji Gonzalez-Rodriguez
Country: Mexico
RPD Number: TC2-07922
Associated RPD Number(s): TC2-07927
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER:  So, this is the decision in the refugee protection claims of XXXX XXXX XXXX XXXX, the principal claimant and XXXX XXXX XXXX, the associate claimant, who claim to be citizens of Mexico and are claiming refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act.

[2]       In deciding this claim, I have taken into consideration Chairperson’s Guideline number 4, regarding gender considerations. And Guideline 9, involving proceedings before the IRB regarding sexual orientation, gender identity and expression.

[3]       Your allegations are fully set out in your Basis of Claim and the principal claimant’s Basis of Claim narrative. In summary, you allege fear of violence and discrimination from your family members, Mexican state, and society at large in Mexico on account of your sexual orientation as lesbian women. 

[4]       I find that you are both Convention refugees pursuant to section 96 of IRPA for the following reasons.

Identity

[5]       I find that your personal and national identities as citizens of Mexico are established on a balance of probabilities based on your testimonies and copies of your Mexican passports and evidence.

Nexus

[6]       I find that your allegations have a nexus to the Convention ground of membership in a particular social group of lesbian women, and therefore, your claims have been assessed under section 96 of IRPA.

Credibility

[7]       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 credible witnesses, and I accept your core allegations. Your allegations are set out in detail in your Basis of Claim narrative.

[8]       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 your lives and that you kept same-sex relationships private. Both of you also testified about the impact on your family relationships, as most of them – as most of your family members have not accepted your identities as lesbian women.

[9]       You have been together for approximately nine (9) years since 2014. You provided a large number of letters of support which corroborate your relationship. You were married in XXXX of this year, and you have provided your marriage licence and certificate as well as photos from your wedding day. I accord these documents full weight in establishing that you are a couple.

[10]     The principal claimant testified extensively about your early experiences when your parents learned of your attraction to women, and you provided fluid and elaborated testimony about attending conversion therapy for several years. You testified about discrimination at work and that you were let go by two (2) separate employers on account of your sexual orientation.

[11]     Both of you testified about losing housing as well as facing harassment and violence from neighbours and another residence you had in Mexico. Both of which happened on account of your sexual orientation.

[12]     At all times, both of you testified in a detailed and spontaneous manner, and there were no material inconsistencies, omissions, or contradictions in your testimony or between your testimony and Basis of Claim narrative or other documents on file.

[13]     The letters of support that you have provided corroborate not only that you are a couple, but also the experiences of violence and discrimination that you faced in Mexico on account of your sexual orientation.

[14]     In view of all of the above, I find that your allegations have been established on balance of probabilities. Namely, I find that you have established that you are in a same-sex relationship and that you have experienced violence and discrimination on account of your sexual orientation in Mexico. Accordingly, I find that you have established your subjective fear of persecution in Mexico.  

Well-Founded Fear of Persecution

[15]     I find that your subjective fear in Mexico has an objective basis for the following reasons. Item 6.7 of the National Documentation Package, NDP for Mexico, states that 83 percent of Mexicans identify as being Catholic. And the Catholic church has been opposed to the advancement of human rights for the LGBTQ community. Children are taught to remain within the bounds of strict gender roles or else face ostracization from the community.

[16]     The United States Department of State report at Item 2.1 of the NDP states that several states in Mexico have passed laws legalizing same-sex marriage and promoting LGBTQ human rights. However, the Board’s own Response to Information Request at Item 6.2 of the NDP notes that despite these positive steps, progress regarding sexual diversity has been slow. 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 and that they occur on a daily basis. It states that there are no laws at the federal level that ban conversion therapy.

[17]     Item 6.4 of the NDP says that the issue of sexual diversity is also absent in the legislative 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 persist in homophobia, homicides, arbitrary detention, and physical violence.

[18]     6.7 of the NDP state that homophobia is prevalent in Mexican society as it has extensive social groups. Crimes against sexual and gender minorities are frequent and motivated by prejudices.

[19]     Section 5.2 of the NDP states that violence against women also continues to be a widespread problem in Mexico and that femicide is the main cause of death for women aged 15 to 19.

[20]     Items 6.5 and 6.2 indicate that discrimination against sexual minorities remains prevalent across Mexico, including in the workplace, access to housing and healthcare.

[21]     6.4 includes statements from the U.N. Special Rapporteur, which has noted that there is an alarming pattern of homicides of LGBTQ individuals in Mexico. And that the perpetrators of these crimes enjoy impunity. Violence against LGBTQ community members has also reportedly increased since the recognition of   same-sex marriage throughout Mexico because of backlash to these progressive changes in the law.

[22]     In view of all of the above country conditions evidence, I find that your fear in Mexico is objectively     well-founded. 

State Protection

[23]     You testified that you never sought the assistance of the police in Mexico because you did not feel safe doing so. You testified that you were aware the police perpetrate violence against LGBTQ community and do not take report seriously. Your testimony in this regard is supported by the objective country conditions evidence.

[24]     Item 7.18 of the NDP reports that police forces in Mexico lack human and material resources to properly investigate crimes. Sources report that police officers also collude with organized crime and that poor working conditions in law enforcement agencies leave police officers particularly vulnerable to bribes and corruption.

[25]     Item 6.7 of the NDP states that rules and public morals are at the police and judges’ discretion, which, combined with prejudice and discriminatory attitudes, can lead to abuses against sexual minorities. Police officers are often perpetrators of human rights violations, and many sexual minority individuals fear further harm from the authorities.

[26]     Item 5.20 states that there are deep-rooted institutional, structural, and practical barriers which continue to hinder access 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 perpetuate violence, and culprits often go unpunished.

[27]     In light of the objective country conditions evidence, as well as your personal circumstances, I find that you have rebutted the presumption of state protection. And that adequate state protection would not be available to you in Mexico on a balance of probabilities.

Internal Flight Alternative

[28]     I have considered whether a viable internal flight alternative exists for you in Mexico City. 6.2 of the NDP provides that Mexico City is known as the most progressive city in Mexico when it comes to LGBTQ rights. It has anti-discrimination laws to protect LGBTQ individual then there are legal provisions in Mexico City which are favourable.

[29]     You testified that you would not feel safe there as lesbian women because outside of Zona Rosa, hate crimes and discriminations against the LGBTQ community, particularly lesbian women, are still prevalent. 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, including in Mexico City. 

[30]     While there are indications that rights of LGBTQ individuals vary throughout the country, the Inter-American Commission on Human Rights reports at Item 6.2 that deep-rooted stereotypes and prejudice persist throughout the country towards LGBTQ people.

[31]     Item 6.2 also states that most sexual minorities reported experiencing physical acts of violence or harassment based on their sexual orientation or gender identity throughout Mexico.

[32]     2.1 supports that those crimes are not isolated events but are emblematic of current patterns of conduct and reflect a series of structural problems of intolerance throughout the country.

[33]     Item 6.4 of the NDP indicates that Mexico City, along with some other cities in Mexico, are considered to be more accepting of LGBTQ members. And that LGBTQ individuals have reported feeling safe from societal abuse in Zona Rosa in Mexico City. However, they still report feeling fearful of police abuse and extortion.

[34]     This report at Item 6.4 indicates that though Zona Rosa in Mexico City is considered to be a safe space for LGBTQ members, violence and discrimination against them are still frequent. The report states that “In practice, these zones have also proven not to be safe from LGBT-targeted violence and discrimination.” The report states that Mexico City has one of the highest LGBTQ targeted murder rates in the country.

[35]     I find that in view of all of the above evidence, there is no viable internal flight alternative available to the claimants in Mexico City, as you would face a serious possibility of persecution throughout the country.      

CONCLUSION

[36]     Based on the totality of the evidence, I find you both to be Convention refugees as per section 96 of IRPA, and therefore, your claims are accepted. 

——— REASONS CONCLUDED ———