Citation: 2019 RLLR 39
Tribunal: Refugee Protection Division
Date of Decision: November 14, 2019
Panel: Kari Schroeder
Country: Mexico
RPD Number: VB9-01375
ATIP Number: A-2021-01124
ATIP Pages: 000226-000230
— DECISION
[1] PRESIDING MEMBER: This is the decision of the Refugee Protection Division in the claim of [XXX] as a citizen of Mexico who is claiming refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act.
[2] In rendering my decision, I have applied the Chairperson’s Guidelines on sexual orientation and gender identity.
ALLEGATIONS
[3] The following is a brief synopsis of the allegations put forward by the claimant:
[4] The claimant fears returning to Mexico due to her sexual orientation as a bisexual woman. The claimant had her first homosexual relationship after high school. The two women were caught one day by a teacher and the claimant was refused entrance to the school for the following school year. The claimant and her girlfriend were also attacked on the street, and her girlfriend’s car was destroyed. On one occasion, they were threatened at gunpoint. The claimant went to the police but nothing was done.
[5] In 2013, the claimant moved to Playa del Carmen for a work opportunity. The claimant was approached and threatened by a group of men who had seen her holding hands with another woman. On another occasion, a group of men threw stones at her house. The claimant moved several times to avoid the threats. Her car was also damaged in an attack, and in 2018 her house was broken into with all of her belongings destroyed. The intruders left a threatening note stating that she was going to die.
[6] The claimant entered Canada on [XXX], 2018 and claimed refugee protection in February of 2019.
DETERMINATION
[7] I find that the claimant is a Convention refugee pursuant to s. 96 of the Act for the reasons that follow:
ANALYSIS
[8] The claimant’s identity today has been established through her sworn testimony as well as a certified copy of her passport on file.
[9] In terms of credibility, when assessing credibility there is a presumption that claimants are telling the truth unless there is a reason to doubt the claimant’s allegations. In this case I have no reason to doubt the truthfulness of the claimant’s story. She testified in a straightforward manner with no embellishments and there were no inconsistencies between her testimony and her basis of claim form.
[10] The claimant testified that she felt she was different starting in high school. Once she finished high school, she began studying translation and met a girl named [XXX]. [XXX] was openly a lesbian and helped the claimant accept her own sexuality. The relationship evolved and eventually, became physical. The claimant described [XXX] as intelligent and confident and that she was physically attracted to her. The relationship lasted four years, and at first, only the claimant’s best friend knew. The claimant described how she cried when she first opened up to her friend.
[11] The claimant testified that two days after a teacher discovered her and [XXX] kissing in a classroom, that she was not allowed to go back to the school. She testified that if she and [XXX] ever held hands or displayed any affection in public, people on the street would give them nasty looks. The relationship eventually ended after a violent attack in 2006 which made them both afraid to go out together. The claimant described details of the attack and what was said to the two women. The claimant went to the police and when she told them why she had been attacked, the police told her that there was no case.
[12] The claimant has had four relationships during her five years in Playa del Carmen, three with women and one with a man. She experienced several threats during that time period, even though she tried to keep those relationships with women discreet. The claimant self-identifies as bisexual. She testified that she is not currently in a relationship in Canada. She also testified that her family in Mexico does not know that she is bisexual and that they believe she is just working in Canada. She testified that when she tried to tell her mother on one occasion, her mother told her that she would rather the claimant be a drug addict than be attracted to women.
[13] After hearing the claimant’s testimony, I believe her allegations and accept that she has a subjective fear of returning to Mexico due to her sexual orientation as a bisexual woman. Further, although she did visit Canada in 2017, I find that her failure to claim refugee protection at that time does not detract from her subjective fear. She testified that it was the attack and threatening note left in her home in 2018 that prompted her to leave the country, as at that point she was not even safe in her own home. I accept this explanation as reasonable.
[14] I find there is a nexus in this case to the Convention ground of membership in a particular social group; namely, sexual orientation. Having accepted the claimant’s allegations as credible, I turn to the objective evidence before me.
[15] According to the US Department of State Report on Human Rights, which is document 2.1 of the National Documentation Package, a Mexico City municipal law provides increased penalties for hate crimes based on sexual orientation and gender identity. However, civil society groups claimed that police routinely subjected LGBT persons to mistreatment while in custody. Discrimination based on sexual orientation and gender identity was prevalent despite the new laws and despite a gradual increase in public tolerance of LGBT individuals. There were reports that the government did not always investigate and punish those complicit in abuses, especially outside Mexico City.
[16] For example, on August 5th of last year, and 18-year-old man was beaten to death allegedly by a group of 10 taxi drivers outside of a gay bar. Local human rights defenders claim the killing was a hate crime because the victim was attacked due to his sexual orientation. Advocates have also argued negligence in investigating the case, due to homophobia in police ranks.
[17] According to an Immigration and Refugee Board response to information request, this is document 6.2, the vague terminology in the laws such as, “abnormal sexual life”, makes LGBT people vulnerable to the interpretation of these laws by local authorities. The concept of machismo is still embedded in Mexican culture which increases homophobia and discrimination against sexual minorities.
[18] With respect to the situation in Yucatan, where the claimant previously lived, this report states that,
“More LGBT individuals were killed in 2017 and 2018 than in previous years for reasons believed to be due to their real or perceived sexual or gender identity.”
[19] And with respect to the situation in Mexico City, a response to information report at document 6.4, states that there are,
“gay-friendly zones where the LGBT community feels more safe from being abused. Although, there are police officers that look for any way to intimidate or extort couples wherever they are.”
[20] In a 2015 report on the situation of human rights in Mexico, the Inter-American Commission for Human Rights reports that it does not know of any — sorry, that notes there have been some improvements in Mexico City in terms of discrimination against LGBT persons, unlike other parts of the country.
[21] However, this same document goes on to state,
“An alarming pattern of homicides of lesbian, gay, bisexual and transgender individuals and the broad impunity for these crimes, sometimes with the suspected complicity of investigative authorities.”
[22] After reviewing the objective evidence before me, I find that despite some improvements to the legal situation for same-sex couples, and some improvements to the laws preventing discrimination, LGBTI people in Mexico face an ongoing risk of violence in a culture that still places a significant stigma on sexual orientation that is anything other than heterosexual. With the exception of a few safe zones in one or two cities, the claimant would not be free to live openly as a bisexual woman in Mexico. Based on the evidence before me I, therefore, find that the claimant has established that she would face a serious possibility of persecution in Mexico based on her sexual orientation.
[23] In terms of state protection, the evidence established that authorities are often complicit in crimes against the LGBT community and in any event, often fail to protect the victims. The claimant herself went to the police on a couple of occasions to report the attacks against her and nothing was done. I, therefore, find that state protection would not be reasonably forthcoming to the claimant in this case.
[24] In terms of any internal flight alternative, the evidence before me establishes that the treatment of LGBT persons varies from state to state. According to document 6.4 of the National Documentation Package, the worst places where sexual minorities are most ostracized are Merida, Yucatan, Leon, Guanajuato, Monterrey, Nueva Leon and Jalisco. Even though Mexico City and Guadalajara are said to be friendlier, the evidence establishes that LGBT people are not immune from violence in any city. The claimant cannot be expected to hide in any internal flight alternative or restrict her movements to one or two neighbourhoods in a city where she may or may not be safe. I, therefore, find that there is no viable internal flight alternative available to the claimant in this case.
CONCLUSION
[25] I find that the claimant is a Convention refugee pursuant to s. 96 of the Act and the Board, therefore, accepts her claim today.
[26] All right, thank you very much everyone, that concludes our hearing, and I wish you the best of luck.
— DECISION CONCLUDED