2024 RLLR 119

Citation: 2024 RLLR 119
Tribunal: Refugee Protection Division
Date of Decision: July 8, 2024
Panel: Paul Fitzgerald
Counsel for the Claimant(s): Constance Nakatsu
Country: Mexico
RPD Number: TC3-42064
Associated RPD Number(s): TC3-42063
ATIP Number: A-2025-00611
ATIP Pages: 90–97

REASONS FOR DECISION

INTRODUCTION

[1] The principal claimant, XXXX and the associate claimant, XXXX are citizens of Mexico. They are seeking refugee protection in Canada under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

[2] In reaching its decision, the Panel applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.[2]

ALLEGATIONS

[3] The claimants’ allegations were set out in their Basis of Claim form (BOC).[3] The fear that upon returning to Mexico, they will be persecuted due to their sexual orientation as lesbians.

DETERMINATION

[4] The Panel determines that the claimants are “Convention refugees” under s. 96 of the IRPA.

Identity

[5] The claimants’ personal and Mexican national identities were established, on a balance of probabilities, by a copy of their passports, issued by Mexican authorities.[4]

ANALYSIS

Nexus

[6] The claimants’ allegations establish a nexus to the Convention ground of particular social group, specifically lesbian women. The Panel has, therefore, analyzed his claim pursuant to section 96 of the Act.

Credibility

[7] Testimony provided under oath is presumed to be truthful unless there is a reason to doubt its truthfulness.[5] In this case, the Panel has no reason to doubt the claimants’ credibility. Their testimony was spontaneous and sincere and was consistent with the allegations in their BOCs. Therefore, the Panel finds the claimants to be credible and believes, on a balance of probabilities, the allegations contained in their claims.

[8] The Panel asked the principal claimant when she realized her attraction for women. She testified meeting the associate claimant for the first time in secondary school and falling in love with her at first side.

[9] She testified that she knew the associate claimant was shy, and needed an approach that would win her over but not frighten her. She testified that she needed to work up the courage to express her feelings to the associate claimant and chose the Mexican festival of Day of the Dead and she chose a place where she would be alone with the associate claimant.

[10] She testified that when they were alone, she hugged the associate claimant and kissed her cheek. To her delight and surprise, the associate claimant welcomed her advances and began to comfort her as she sensed that the principal claimant was nervous.

[11] Thus began a wonderful, loving, mutually supportive common-law same-sex relationship.

[12] The Panel asked them how it has evolved. They testified that each lived with their families and over time, the principal claimant’s mother began to suspect the true nature of the relationship and to despise the associate claimant who was doing witchcraft to her daughter.[6]

[13] The principal claimant’s mother also believed that because of her daughter’s relationship with the associate claimant, she was unlikely to marry a man and have children.[7]

[14] Thus, she encouraged a family friend “J” to court the principal claimant,[8] but after a few weeks of the principal claimant telling him that she was not interested in men, he sexually assaulted her, on XXXX 2021.[9]

[15] The Panel asked her whether she had reported the assault to the police.

[16] She testified that she had not because she feared it would be linked back to her mother.

[17] The Panel asked her whether she had discussed the matter with her mother or her sibling. She testified that there was no point in talking about it with her mother and she did not feel comfortable talking about it with her siblings.

[18] The Panel asked her what she did next. She testified that shortly after that horrible incident they went to stay with a friend in Mexico City.

[19] The Panel asked her whether they felt safe in Mexico City. She testified that they made the mistake of holding hands in public and were quickly treated with disgust and disdain by people in the neighbourhood.

[20] The principal claimant had obtained her Mexican passport on XXXX 2021,[10] and once there were in Mexico city the associate claimant applied for a Mexican passport which was issued on XXXX 2022.[11]

[21] They testified that they came to Canada on XXXX 2022.[12]

[22] The Panel asked why they did not seek asylum upon arrival in Canada. The principal claimant testified that she did not know what asylum was and was also dealing with a language barrier. They applied for it in July 2023[13] when she was told they would qualify.

[23] They found legal representation and signed their BOCs three weeks later, on September 28, 2023.[14]

[24] The claimants testified that they have been in a common-law same sex relationship since XXXX 2010.[15] Thus, it is unsurprising that many of their close confidants could confirm that the claimants are lesbian and have been in a same-sex relationship for over a decade. Witnesses of this relationship included the mother of the principal claimant,[16] the aunt[17] and grandmother[18] of the associate claimant, two long-time friends[19] of the principal claimant,[20] and a long-time friend of the associate claimant.[21]

Conclusion on Credibility

[25] The Panel finds, the claimants through their testimony and documentary evidence have on a balance of probabilities, substantiated their allegations that they are lesbians and that they face a serious possibility of persecution in Mexico based on their sexual orientation.

[26] The situation in Mexico with respect to the LGBTQ+ community is quickly evolving. Thus, it is important to consider only the most recent information as that gives the most accurate information regarding the claimants’ forward-looking risk in returning to Mexico.

[27] Today in Mexico, same-sex relations are no longer a crime[22] there are laws protecting the LGBTQ community from discrimination,[23] same-sex marriage is legal in several States,[24] and so is adoption by gay couples.[25] Conversion therapy is outlawed in many states,[26] and the Mexican state, “performs well regarding the protection of LGBTI people against discrimination and violence.”[27] Moreover, sexual re-assignment surgery is legal in Mexico[28] and birth certificates can now be altered to include additional genders and also name changes as a result of sexual re-assignment surgery.[29]

[28] However, despite these impressive advances, such laws are not nationwide and are usually not enforced. Most cases go unpunished while anti-LGBTIQ+ violence continues to be very high.[30]

[29] This is perhaps because, in Mexico discrimination based on SOGIESC is a structural phenomenon rooted in Mexican society. It occurs daily at multiple levels in family, work and institutional environments.[31]

[30] Indeed, in 2019, Mexico saw the highest number of LGBT-targeted murders in five years: 117 SOGIE-diverse individuals were killed, which was an increase of 27% from 2018. Statistically this represented a murder rate of one LGBT individual every three days in Mexico.[32]

[31] As recently as 2023, there were credible reports of crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons.[33]

[32] The Panel finds that the claimants have demonstrated a subjective fear of persecution in Mexico, that is objectively well founded.

State Protection and Internal Flight Alternative

[33] It is clear to the Panel that the treatment of Mexico’s LGBTQ+ persons, by both society and by authorities is changing, but to the extent that these changes exist they must be considered in the context of current day Mexico.

[34] For example, the objective country evidence confirms, “Mexico suffers from high rates of crime, exacerbated by its low rate of criminal convictions. Most crime in Mexico goes unreported, or simply cannot be accurately captured due to large number of individuals who have “disappeared.””[34] Moreover, local law enforcement may have limited ability to respond to serious crimes.[35]

[35] Indeed, Mérida, the city considered the safest in Mexico is not the best IFA for people in the same position as the claimants, and Mexico City, which would normally be the best IFA for persons in the same position as the claimants is not one of the safest cities in Mexico. By way of example, in 2022, ten of the municipalities that declared “gender-based violence alerts” – a special mechanism that aims to protect women in the face of situations of extreme violence and vulnerability, formed part of the Greater Mexico City area.[36]

[36] Thus, the Panel finds that the claimants have rebutted the presumption of state protection with clear and convincing evidence that the Mexican state would be unwilling or unable to provide them with adequate protection.

[37] The Panel further finds that the claimants have rebutted the presumption of a safe Internal Flight Alternative with Mexico with clear and convincing evidence that they would face persecution if they were to return to Mexico.

CONCLUSION

[38] Having considered all of the evidence, the Panel finds that the claimants, XXXX and XXXX face a serious possibility of persecution in Mexico based upon their sexual orientation.

[39] The Panel therefore finds that they are “Convention refugees” pursuant to section 96 of the Act.

[40] The Panel accepts their claims.

——— REASONS CONCLUDED ———

[1] Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.

[2] Chairperson Guidelines 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression; Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017, revised December 17, 2021.

[3] Document 2 – Basis of Claim Form – TC4-02628, signed September 28, 2023.

[4] Document 1 – Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada, passport.

[5] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).

[6] Document 4 – Claimant’s Documents: Exhibit C-4; Declaration of EMGD, mother of principal claimant, XXXX 2024.

[7] Ibid.

[8] Ibid.

[9] Ibid., and Exhibit C-3; Declaration of EOJ, grandmother of associate claimant, XXXX 2024.

[10] Document 1 – Package of information from the referring Canada Border Services Agency/ Immigration, Refugees and Citizenship Canada, passport.

[11] Ibid.

[12] Document 1 – Package of information from the referring Canada Border Services Agency/ Immigration, Refugees and Citizenship Canada: Application Summary, dated July 17, 2023

[13] Ibid.

[14] Document 2 – Basis of Claim Form – TC4-02628, signed September 28, 2023.

[15] Document 1 – Package of information from the referring Canada Border Services Agency/ Immigration, Refugees and Citizenship Canada: Application Summary, dated July 17, 2023

[16] Document 4 – Claimant’s Documents: Exhibit C-4; Declaration of EMGD, mother of principal claimant, XXXX 2024.

[17] Document 4 – Claimant’s Documents: Exhibit C-2; Declaration of BEPO, aunt of associate claimant, XXXX 2024.

[18] Document 4 – Claimant’s Documents: Exhibit C-3; Declaration of EOJ, grandmother of associate claimant, XXXX 2024.

[19] Document 4 – Claimant’s Documents: Exhibit C-7; Declaration of DMLF, friend of principal claimant, XXXX 2024.

[20] Document 4 – Claimant’s Documents: Exhibit C-9; Declaration of ARM, friend of principal claimant, XXXX 2024.

[21] Document 4 – Claimant’s Documents: Exhibit C-8; Declaration of BLAP, friend of associate claimant, XXXX 2024.

[22] Document 3 -National Documentation Package, Mexico, 31 May 2024, tab 6.2: Treatment of individuals based on their sexual orientation, gender identity and expression, and sex characteristics (SOGlESC) by society and authorities, including legislation; access to housing, employment, education, health care, and … Immigration and Refugee Board of Canada. 8 April 2022. MEX200969.E, page 1.

[23] Ibid., page 2.

[24] Ibid., pages 8-9.

[25] Document 3 -National Documentation Package, Mexico, 31 May 2024, tab 6.4: Queer Refugee Hearings Program: Country of Origin Information Report: Mexico. Capital Rainbow Refuge. April 2021, page 11.

[26] Document 3 -National Documentation Package, Mexico, 31 May 2024, tab 6.2: Treatment of individuals based on their sexual orientation, gender identity and expression, and sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and … Immigration and Refugee Board of Canada. 8 April 2022. MEX200969.E, page 16.

[27] Ibid., page 6.

[28] Document 3 ‑National Documentation Package, Mexico, 31 May 2024, tab 6.4: Queer Refugee Hearings Program: Country of Origin Information Report: Mexico. Capital Rainbow Refuge. April 2021, page 9.

[29] Ibid., page 9.

[30] Ibid., page 12.

[31] Document 3 -National Documentation Package, Mexico, 31 May 2024, tab 6.2: Treatment of individuals based on their sexual orientation, gender identity and expression, and sex characteristics (SOGIESC) by society and authorities, including legislation; access to housing, employment, education, health care, and … Immigration and Refugee Board of Canada. 8 April 2022. MEX200969.E, page 13.

[32] Ibid., page 12.

[33] Document 3 -National Documentation Package, Mexico, 31 May 2024, tab 2.1: Mexico. Country Reports on Human Rights Practices for 2023. United States. Department of State. 22 April 2024, page I.

[34] Document 3 -National Documentation Package, Mexico, 31 May 2024, tab 7.4: OSAC Country Security Report. Mexico. United States. Overseas Security Advisory Council. 5 February 2024, page 1.

[35] Ibid.

[36] Document 3 -National Documentation Package, Mexico, 31 May 2024, tab 1.5: Mexico Peace Index 2023: Identifying and Measuring the Factors that Drive Peace. Institute for Economics & Peace. May 2023, page 23.