2024 RLLR 147
Citation: 2024 RLLR 147
Tribunal: Refugee Protection Division
Date of Decision: May 3, 2024
Panel: Sarah Ngo
Counsel for the Claimant(s): Tina Tsanava
Country: Mexico
RPD Number: VC3-10378
Associated RPD Number(s): N/A
ATIP Number: A-2025-00724
ATIP Pages: N/A
DECISION
[1] MEMBER: So, this is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX XXXX. Today’s date is May 3rd, 2024. You alleged to be a citizen of Mexico and are claiming refugee protection pursuant to sections 96 and 97(1) of Canada’s Immigration and Refugee Protection Act, IRPA.
[2] I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally. The written decision will be sent to you and your Counsel by mail in the coming weeks.
[3] In coming to my decision, I have taken the IRB Chairperson’s Guideline 9 into consideration regarding Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, or what we call SOGIESC guidelines in short. For example, I have applied at section 8.5.1, which indicates that having to conceal one’s sexual orientation to avoid harm is in itself persecutory.
Determination and Nexus
[4] I find that you are a Convention refugee on the grounds of your membership in a particular social group as a gay man. As such, I have assessed your claim under section 96 of the IRPA.
ALLEGATIONS
[5] You allege the following, that you are a citizen of Mexico only, and that you face persecution from the Mexican authorities and society in general on account of your sexual orientation as a gay man.
[6] You allege that if you return to Mexico, you would be severely discriminated against by the Mexican public, that you would face mistreatment and risk to your life, and that you would receive no protection from the Mexican police.
ANALYSIS
Identity
[7] I find your personal and national identity as a citizen of Mexico has been established on a balance of probabilities by your sworn testimony and your Mexican passport on file. I accept that you are a citizen of Mexico and of no other country.
Credibility
[8] As per the Maldonado principle, when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their truthfulness.
[9] Overall, I found you to be a credible witness. You testified in a straightforward, sincere manner, and there were no material inconsistencies in your testimony or contradictions between your testimony and the other evidence before me that were not satisfactorily explained. You provided spontaneous and unrehearsed answers to my questions.
[10] You testified about how you always felt different from other boys growing up in the state of Hidalgo. You shared with genuine emotion about the persistent discrimination you faced in Mexico because of the way you choose to dress and how you carry yourself.
[11] You testified about a very traumatic incident when you were out with XXXX (ph), and how the police confronted you in an aggressive manner. You believe some police officers were behind the attack on you and XXXX, beating you and locking you both up in the trunk. You then moved to Guadalajara, which you were told was the “safest place for LGBTQ+ people to live in Mexico.”
[12] Despite various bureaucratic barriers, you married a man named XXXX (ph) in 2018. The two (2) of you divorced in 2023. While married, you and XXXX faced an incident where some people stole your car and made homophobic comments about you.
[13] You shared also about how your supervisor at the hospital discriminated against you, and that human resources denied your leave request for your wedding even though heterosexual couples were entitled to days off before and after their marriage.
[14] You also testified that the insurance company denied you medical benefits through your ex-spouse XXXX plan, because they said you were not his family member.
[15] You decided to come to Canada after a friend in Puerto Vallarta told you about how the LGBTQ+ community is well treated in Canada. You met your current boyfriend, XXXX (ph), in Puerto Vallarta, and you arrived in Canada in XXXX 2023.
[16] You testified that since coming to Canada, you feel you can finally accept yourself as you are. You said that being in Canada, you feel you can openly express your sexual orientation and be more authentic and true to yourself. You spoke with great emotion of how you have been warmly received and welcomed into the LGBTQ+ community here in Vancouver. You shared your rainbow diary in the supporting documentation and described how happy you felt to be chosen as a volunteer captain of the XXXX XXXX XXXX XXXX.
[17] I note that your claim is supported by the following documents of which I will highlight several items in particular. Your marriage and divorce certificate indicating your previous relationship with XXXX. A letter of support from your ex-spouse, XXXX. A statement filed by your ex-spouse XXXX to the public prosecutor’s office regarding your car theft in August 2021. Letters of support from your friend XXXX (ph) and his mother XXXX (ph) in Mexico. Letter of support from your current boyfriend XXXX. Letters of support from XXXX XXXX XXXX and the XXXX XXXX XXXX indicating your breadth of involvement and how you have volunteered at various events. And your rainbow diary, which includes photos and memories of your journey, friends in Canada, and participation in various LGBTQ+ events around Vancouver.
[18] I find I have no reason to doubt the authenticity of any of these documents, and they corroborate core elements of your claim. I therefore assign them full weight.
[19] Based on your credible testimony and the corroborating documentation, I find — I accept on a balance of probabilities your allegations of harm in Mexico.
Well-Founded Fear
[20] To be considered a Convention refugee, a claimant must demonstrate a well-founded fear of persecution based on one (1) or more of the Convention grounds. This includes a genuine subjective fear and an objective basis for that fear which must be forward-looking.
[21] I find that your subjective fear is established by your credible testimony, corroborated by the letters of support, and documentation submitted.
[22] I also find that your fear of returning to Mexico is objectively well-founded based on the country conditions noted in the National Documentation Package, or NDP, for Mexico. According to NDP Tab 2.1, Mexican federal law prohibits discrimination against lesbian, gay, bisexual, transgender, and intersex individuals.
[23] I note that the SOGIESC Guideline 9 directs that the absence of laws that criminalize or discriminate against LGBTQ+ individuals in a country does not signify a lack of discrimination in that country, nor does it indicate that state protection is available. Furthermore, the existence of laws addressing discrimination against LGBTQ+ individuals does not mean that discrimination does not take place.
[24] Discrimination and violence against LGBTQ+ individuals continue to be prevalent in Mexico. I find that, for example, NDP Item 6.2 notes that discrimination based on sexual orientation as well as gender identity and expression is, “a structural phenomenon rooted in Mexican society” and that “it occurs on a daily basis at multiple levels in family, work, and institutional environments.”
[25] NDP Item 2.1 reports that violence targeting LGBTQ+ persons is one (1) of the most significant human rights issues in the country.
[26] NDP Item 6.7 references data gathered by a nonprofit organization named Letra S, which indicates that at least 87 LGBTQ+ people were killed in 2022 because of their sexual orientation, gender identity, or expression.
[27] NDP Item 2.1 states that the Mexican government did not always investigate and punish those complicit in abuses against LGBTQ+ persons, especially outside Mexico City.
[28] Your Counsel also provided recent articles from reputable news sources such as Reuters, The New York Times, CTV News, and PBS outlining the dangers faced by the LGBTQ+ community in Mexico. This includes reports about the suspicious death in 2023 of Jesús Ociel Baena, who was the first openly non-binary person to assume a judicial post in Mexico. The circumstances around Baena’s death are still under investigation. I find these documents relevant and probative to your claim, so I give them high weight.
[29] Overall, while Mexican laws themselves appear to be progressive, the societal attitudes in Mexico reflect a heavily discriminatory and violent situation for the LGBTQ+ community. The discrimination and abuse that LGBTQ+ individuals face in Mexico is persistent, pervasive, and serious without protection from the state, and I find that it amounts to persecution.
[30] I also note that under SOGIESC guidelines, section 5.1.1 (sic), that being compelled to conceal one’s sexual orientation or gender identity constitutes a serious interference with fundamental human rights that may therefore amount to persecution. A claimant cannot be expected to conceal their sexual orientation or gender identity as a way to avoid persecution in their country of reference.
[31] As such, I find that you have established a well-founded fear of persecution from the Mexican community at large, as well as from the state.
State Protection
[32] A state is presumed to be capable of protecting its citizens except in situations where the state is in complete breakdown. A claimant can rebut the presumption of state protection by providing clear and convincing evidence that state protection is inadequate.
[33] NDP Tab 6.4 states that SOGI diverse individuals are disproportionately vulnerable to arbitrary arrests and detentions in Mexico. NDP Item 6.4 also notes that same sex couples who demonstrate public displays of affection in Mexico are the frequent target of police abuse and arbitrary detention by state agents, often with excessive use of force or verbal abuse.
[34] NDP Item 2.1 indicates that the Mexican government does not adequately investigate crimes against LGBTQ+ individuals. It also states that Mexican civil society groups claimed police routinely subjected LGBTQ+ peoples to mistreatment while in custody.
[35] In addition to mistreatment by police, which you also testified about, the country evidence indicates that Mexico’s judicial system is not effective in investigating crimes committed against sexual minorities. NDP Item 7.18 notes that Mexico has an extremely low rate of prosecution for all forms of crime. Prosecutions can take years to complete, and crime is unreported due to a generalized mistrust in authorities. The objective evidence also indicates that the legislation that has been passed by the Mexican government to protect LGBTQ+ persons, which includes the Federal Law to Prevent Discrimination, is only partially effective, and that the discrimination and violence against LBGTQ+ persons continue to be persistent and prevalent across the country.
[36] Given your personal circumstances and the objective country conditions, I find that state protection would not be reasonably forthcoming in this case. As such, I find you have rebutted the presumption of state protection.
Internal Flight Alternative (IFA)
[37] The test for determining whether there is a viable IFA involves two (2) prongs. First, I must be satisfied that you would not face a serious possibility of persecution, and that you would not be personally subjected to a risk of life — a risk to life, or of cruel and unusual treatment or punishment or danger of torture in the IFA location. Second, I must be satisfied that it would not be unreasonable in all of the circumstances, including those particular to you, for you to seek refuge there.
[38] I did consider Mexico City as a potential IFA, and I raised that at the start of our hearing. I find, however, that the NDP evidence on Mexico City is mixed. While some evidence suggests that it may be more gay-friendly than other parts of the country, other evidence suggests that the brutal violence and discrimination against LGBTQ+ individuals still exist in larger cities.
[39] Furthermore, NDP Item 6.4 states that Mexico City has one (1) of the highest LGBTQ+ targeted murder rates in the country. The report also described Zona Rosa as the gay village of Mexico City, but states that violence and discrimination against LGBTQ+ persons in establishments within Zona Rosa are frequent.
[40] I note that you have lived in different states within Mexico, Hidalgo and Jalisco, and also — and still experience discrimination due to your sexual orientation in those cities, including Guadalajara, and Mexico City, where you stayed for two (2) months.
[41] Therefore, despite certain safe zones, I do not find that there is a viable IFA in Mexico where you could live openly as a gay man. I find that the levels of discrimination you would experience would be sufficiently high to constitute a serious possibility of persecution throughout the country and the risk of physical attacks would be similar. Accordingly, I find that the IFA test fails on the first prong and that there is no viable IFA in your case.
CONCLUSION
[42] Based on the analysis above and all the evidence before me, I find that you, XXXX XXXX XXXX XXXX, are a Convention refugee pursuant to section 96 of the IRPA. The Board accepts your claim.
——— REASONS CONCLUDED ———