2024 RLLR 138
Citation: 2024 RLLR 138
Tribunal: Refugee Protection Division
Date of Decision: August 22, 2024
Panel: Devin Macdonald
Counsel for the Claimant(s): Marcela Donaji Gonzalez-Rodriguez
Country: Mexico
RPD Number: TC3-33441
Associated RPD Number(s): N/A
ATIP Number: A-2025-00724
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision for the claim made by XXXX XXXX XXXX. He alleges that he is a citizen of Mexico, and he is claiming protection, pursuant to sections 96 and subsection 97(1) of the Immigration and Refugee Protection Act.
[2] The claimant’s allegations can be found in his Basis of Claim form narrative at Exhibit 2, as well as the Basis of Claim form narrative addendum at Exhibit 8. In short, the claimant alleges that he faces a personalized risk to his life from an aspiring social media influencer because he exposed her scam or extortion. Further, the claimant alleges that he faces a risk of persecution in Mexico from homophobic members of society due to his sexual orientation and due to his gender expression.
[3] In rendering this decision, the Panel has considered and applied Chairperson’s Guideline 9, which is for Proceedings Before the IRB Involving Sexual Orientation, and Gender Identity and Expression, as well as Sexual Characteristics.
[4] The Panel finds that the claimant is a Convention refugee, pursuant to section 96 of the Immigration and Refugee Protection Act.
[5] The claimant’s fear stem from his sexual orientation and from his gender expression. The claimant sexual orientation constitutes a particular social group, and therefore, his claim is assessed under — section 96 of the Immigration and Refugee Protection Act.
[6] The Panel finds the claimant has established his personal identity and the country of reference for his claim with his testimony and with the copy of his passport issued by Mexican authorities and provided by the Minister at Exhibit 1.
[7] With regards to credibility, the Panel finds that the claimant is a credible witness, having questioned the claimant, and having assessed the evidence on the record, including the personal documents found at Exhibit 6 and Exhibit 7.
[8] The claimant provided spontaneous and frank testimony regarding his sexual orientation and his gender identity expression. He provided convincing testimony to establish that he is currently in a genuine relationship with a member of the same sex, and he described how they met, how their relationship initiated, and he gave many spontaneous details regarding their relationship, including events that they have celebrated together and disagreements that they have had at home.
[9] The claimant’s partner was available as a witness. However, the Panel did not find it necessary to question the witness.
[10] The claimant provided detailed testimony on his experiences of harassment, intimidation, and an unsafe environment when he attempted to participate in public life in Mexico. Specifically, the claimant provided testimony on facing slurs when taking just minor steps towards making a feminine gender expression as a man.
[11] The claimant provided witness’ testimonies from family and friends in Mexico and Canada that corroborate his sexual orientation.
[12] And the claimant’s sworn testimony is presumed true unless there is a reason to doubt it.
[13] In the case at hand, the claimant’s testimony is consistent with his allegations, and the Panel finds no valid reasons to doubt the genuineness or the veracity of the documents or the allegations that they support.
[14] As such, the Panel finds, on a balance of probabilities, that the claimant is genuine in his alleged sexual orientation in the way he expresses his gender identity. The Panel finds the claimant has a genuine fear of harassment, intimidation, and an unsafe environment in Mexico. Based on the totality of the evidence, the Panel finds that the claimant has established a subjective fear of return to Mexico based on his sexual orientation and his gender expression.
[15] And the Panel finds that the claimant’s fears of return to Mexico is grounded in the objective evidence.
[16] The SOGIESC Guidelines mention that concealment of one’s sexual orientation constitutes a serious interference with fundamental human rights, and that may therefore amount to persecution.
[17] There have been positive changes in law in Mexico in an effort to curb violence and discrimination against SOGIESC individuals. Sources indicate that sexual minorities continue to experience discrimination, harassment, and violence. This information can be found at 6.2 of Exhibit 3.
[18] There is — the claimant provided articles at Exhibit 5 that highlight that Mexico is experiencing a surge in violence against SOGIESC individuals despite the legal advances. And if you — one looks to Item 8 and Item 13 of Exhibit 5 you can see evidence of increasing violence against SOGIESC individuals in Mexico.
[19] The ongoing violence and discrimination based on sexual orientation and gender identity is also reflected in the United States Department of State report found at 2.1, which highlights that discrimination remains prevalent and hate crimes based on sexual orientation and gender identity persist in Mexico despite legislative changes. The objective evidence highlights that the rates that are reported are likely an underestimation, given the authorities complicity and the authorities’ indifference to such acts of violence.
[20] And the evidence is consistent that — the evidence is consistent with the claimant’s own evidence that he faced harassment and violence because of his sexual orientation and gender expression, and it supports their assertion that he could not live openly in Mexico without experiencing threats of violence.
[21] So, based on this analysis, I find that the claimant’s subjective fear of return to Mexico is well founded.
[22] With regards to state protection, the Panel finds that the claimant would not have access to adequate state protection should he return to Mexico.
[23] According to a report from the Inter-American Commission on Human Rights, same-sex couples that show public displays of affection are frequent target of abuse and arbitrary detention by the police. The report notes that police have used violent raids to target members of the LGBT community. And the report can be found at Item 6.1 of Exhibit 3.
[24] The report indicates that that crimes against LGBT individuals in Mexico are often incorrectly tracked, and there is a general failure of the authorities to investigate the crimes.
[25] So, in this context, the Panel finds that the claimant would not have access to adequate state protection. And in considering whether the claimant could safely relocate within Mexico, the Panel finds that the objective evidence highlights that these incidents of discrimination and violence are widespread throughout Mexico.
[26] Item 6.4 shows how even the more friendly parts of the country — in the more friendly parts of the country, individuals are at risk from violence and mistreatment.
[27] Therefore, I find that the claimant would have to hide his sexual orientation, his — change his gender expression to live safely and openly in Mexico. And for these reasons, I find that he does not have a viable internal flight alternative in Mexico.
[28] So, based on the foregoing analysis, the Panel has determined that the claimant has established there is a serious possibility of persecution on a Convention ground should he return to Mexico. Therefore, his claim is accepted.
——— REASONS CONCLUDED ———