Decision TA4-10802 & TA4-10803 (Persuasive Decision, In Private)

Claimant(s): XXXXX
Date(s) of Hearing: February 4, 2005
Date of Decision: February 24, 2005
Coram: V. Rangan
For the Claimant(s): Allan S. Blott, Q.C., Barrister and Solicitor
Refugee Protection Officer: Nil
Designated Representative: Nil
Minister's Counsel: Nil

NOTE

These reasons for decision were edited for spelling and grammar on November 28, 2006, after they were identified as a "Persuasive Decision". Persuasive Decisions are decisions that have been identified by a Division Head as being of persuasive value in developing the jurisprudence of the Division.

The claimants XXXXX XXXXX XXXXX ("XXXXX") and XXXXX XXXXX XXXXX XXXXX ("XXXXX"), citizens of Mexico, seek refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act¹ (IRPA).

Allegations:

In their Personal Information Forms² (PIF) the claimants allege that they were subject to mistreatment, verbal abuse and physical assault by members of the family because of their sexual orientation. On XXXXX, 2004, XXXXX family caught the claimants in a compromising situation. Angered by the fact that a member of their family was a homosexual, XXXXX sibling beat his partner, XXXXX, and threw him out of the house. These physical assaults resulted in bruises and bleeding requiring immediate attention. XXXXX took XXXXX to his friends' ("XXXXX" and XXXXX") house where a doctor treated him for his injuries.

While at his friends' house, XXXXX brother visited the claimants with officers from the Judicial Police. These officers ransacked the house and took off the claimants clothing with them. The claimants were laughed at by the police officers when they attempted to lodge a complaint with the police. They were told that there were no laws to protect the homosexuals in that country.

The claimants decided to move to XXXXX. Even here the police followed them, handcuffed them and they were driven back to XXXXX. After three days of detention, XXXXX escaped and went to see another friend with whom XXXXX was staying after being released from detention. Unable to tolerate the humiliation and the problems facing them because of their homosexuality, the claimants left Mexico for Canada in XXXXX 2004.

Analysis:

The panel accepts the claimants' identities as citizens of Mexico.³  The claimants state that they require protection because of their sexual orientation. The panel accepts their membership in a particular social group, namely, homosexuals.

The claimants identified the family of XXXXX and the society as agents of persecution. The claimants grew up in the city of XXXXX, XXXXX and the incidents of harm perpetrated against them happened in this city. The claimants testified that they were seen as a couple in the community because they used to frequent the gay bars and often went for walks together. With the exception of some incidents of discrimination perpetrated against the claimants individually, and specific to them, the panel has analysed both their claims in the context of the country conditions and has arrived at a determination applicable to both claims.

XXXXX stated that he lost his job at the company at the XXXXX XXXXX XXXXX XXXXX because his boss found out that he was gay. However, documents to the Special Committee on Reconciliation and Arbitration⁴ state that when he was hired as a contractor in XXXXX 1990, he was promised a position. He did not get this position despite the fact that his work duties were those of a permanent worker. The claimant alleged it would be futile to tell the Board that he was fired because of his sexual orientation. He did not complain about this to any other authorities. The claimant presumed that he would not be treated favourably. While there may be discriminatory treatment of homosexuals, there is no persuasive evidence before the panel that the claimant's loss of his job was due to his sexual orientation. In the alternative, even if he was discriminated at his place of employment, the claimant made no effort to bring it to the attention of the authorities such as the Arbitration Board.

XXXXX was often ridiculed at his place of work. His boss told him that he would be fired if his (the claimant's) gay friends visited him at work. There was no evidence adduced that he was fired.

The claimants are residents of XXXXX and the documentary evidence⁵ states:

Better organizing will be a key element in any further progress, as demonstrated in XXXXX, where a well organised gay movement has achieved a significant level of acceptance in one Mexico's most Catholic and conservative cities. Though both the city and the state are governed by the centre-right and generally gay-hostile National Action Party (PAN), a political accommodation has been reached, significantly improving conditions for the city's homosexual population....

The accommodation now continues at present and there appears to be more rights now for the gay people in XXXXX and other cities in XXXXX than there were when PAN took over the government four years ago. ...⁶

... In XXXXX 54 men formed the XXXXX Gay Pride Committee on XXXXX, 1999 to begin planning the gay pride events and an annual parade. ...⁷

The only problem XXXXX had was with his family because they did not approve of his sexual orientation. XXXXX family also beat XXXXX because they believed he encouraged the homosexuality of their son. It does not seem reasonable that the police detained the claimants for three days without due process or reason. The claimants did not take the matter to higher authorities. Even if the panel accepts that the claimants were detained by the police, and I do not, it appears as if it was done as scare tactics rather than a punishment for an illegal act (which it is not) such as being gay.

XXXXX has his family in XXXXX and he found the situation intolerable. He had an alternative to relocate to a place where his family would not interfere and even if they did, there were measures in place to deal with any unlawful demonstration of hatred towards gays.

Internal Flight Alternative (IFA):

The issue of IFA was addressed before and at the hearing of both their claims. The claimants were questioned about it. XXXXX stated that he could not relocate to Mexico City because it was not safe anywhere for homosexuals. The claimant's statement with respect to Mexico City is not consistent with the following documentary evidence:

In most other cases, the improving climate towards homosexuals in many big cities means that gays, lesbians, and bisexuals who live in the more intolerant areas and smaller urban areas do have internal relocation options. Mexico City has an increasingly vocal and visible gay subculture, which for the first time has gained representation in both the Legislative Assembly of the DF and the federal Chamber of Deputies. ...⁸ [emphasis added]

With Mexican culture highly resistant to change from within, the primary force for change is coming from international contact. Not surprisingly that influence is being felt most strongly in Mexico City, and other tourist centres, where a semantic change is signalling new perspectives among youth.⁹

Participation by homosexuals is widely accepted in two of Mexico's three principal political parties. Ambassador Pedro Joaquin-Coldwell, ambassador to Cuba is openly bisexual. On July 17, 1998, the Human Rights Commission of the Federal District, the PRD and the Rainbow Foundation jointly issued a "Human Rights Primer to Prevent Discrimination Based on Sexual Orientation". At the dedication, Mexico City Human rights Ombudsman Luis De la Barrera said "it was wrong to discriminate against someone for making love in their way." The primer begins by emphasizing "being homosexual, lesbian, bisexual, transsexual, or transgender is in no way an infraction of the law".¹⁰

The primer enumerates nineteen rights and then directs persons to proper government agencies and human rights organizations to get assistance or file complaints of rights violations.¹¹  In September 1999, the Legislative Assembly of the Federal District passed an ordinance banning discrimination based on sexual orientation. This is the first of its kind in Mexico and provides for prison sentences of one to three years, fines equivalent to 50 to 200 days salary, and community service of 25 to 100 days for anyone who "provokes or incites hatred or violence, refuses to provide an individual with a service offered to the general public, harass or exclude an individual or group or denies or restricts employment based on sexual orientation."  This law, sponsored by the PRD went into effect October 1, 1999. This ordinance applies only to Mexico City.¹²  [This is] one of the reasons why the claimants could relocate to Mexico City.

Gay and lesbian organizing is rapidly spreading outward from its established bases in Mexico City, XXXXX and Tijuana and is becoming more accessible through the telephones and the Internet. In most cases, the improving climate towards homosexuals in many big cities means gays, lesbians and bisexuals, who live in the more intolerant rural areas and smaller urban areas do have an internal relocation option. Mexico City has an increasingly vocal and visible gay subculture and conditions for homosexuals in XXXXX have also improved markedly.¹³

Homosexual magazines with erotic photography are available for sale in kiosks in major cities. The authorities generally permit open displays of political activism, including protests and homosexual pride parades and allow homosexual service organisations and gay bars to operate relatively unhindered in larger cities. Homosexuals are invited to take part in educational programs and debates on television.¹⁴

XXXXX testified that he participated in the gay pride parade in his hometown. He stated that nobody saw him at the parade except his gay friends. Although the acceptance of gay community in the claimant's hometown is improving, the claimant's relocation to Mexico City would give greater freedom to be a gay person.

Based on the totality of the evidence, I find that while there is still room for improvement for gays in Mexico City, these problems are not such as to persuade me that there is a serious possibility that the claimants will be harmed should they return to Mexico and live in Mexico City. This satisfies the first prong of the test of an IFA in accordance with Rasaratnam.¹⁵

In accordance with Thirunavukkarasu,¹⁶ the panel must also consider the second prong test of an IFA: whether it would be unduly harsh for the claimants to move to Mexico City. I find that the claimants are intelligent people. They have several years of work experience including in the Customer Service field. Therefore, these qualifications could assist them in finding jobs in Mexico City. Accordingly, I find that it is not unreasonable, under the circumstances, for them to live in Mexico City. This satisfies the second prong of the test of an IFA.

In the nation as a whole, recent years have seen substantial political and legal gains for sexual minorities, particularly at the federal level in major metropolitan cities such as Mexico City. In April 2003, the Mexican Congress unanimously approved a sweeping new Federal Law to Prevent and Eliminate Discrimination. It explicitly includes sexual orientation in its definition of discrimination. The National Council Against Discrimination (Consejo Nacional Para Prevenir la Discriminacion) is charged with investigating discrimination, formulating policies to prevent discrimination, working to ensure compliance with international human rights treaties ratified in Mexico and educating the public that discrimination is against the law. Individuals as well as organizers may file complaints of discrimination with the Council.¹⁷

The claimants did not complain to this Council at any time.

The Constitution provides for freedom of religion. The new Catholic Catechism does describe homosexuality as "grave depravity" and "intrinsically disordered". However, recognizing that the number of men and women who have deep seated homosexual tendencies is not negligible, it specifies that "they must be accepted with respect, compassion, and sensitivity, avoiding every sign of unjust discrimination."¹⁸  It has to be noted that even in a democratic nation such as Canada so open to equal rights and freedom for the gay population, there is resistance from some religious organizations. However it is apparent from the above Catechism that the Church is attempting to be tolerant towards the gay community. In a further sign of increasing official tolerance of homosexuals organizing, on September 25, 1999, some 150 openly gay and lesbian Mexican Christians extended their efforts to the Catholic Church. The pilgrimage proceeded for 1.5 miles along Guadalupe Boulevard, culminating at Mexico's holiest shrine, The Basilica of the Virgin of Guadalupe. The pilgrims entered the Basilica without incident. In the words of the Metropolitan Community Church pastor Jorge Sosa, "The Virgin Mary protects everyone and accepts everyone, and we are here to show her our devotion and to ask her protection as we fight for our rights in Mexico."¹⁹

Moreover, even assuming, without deciding, that state protection would not be reasonably forthcoming in XXXXX due to the presence and influence of the police officers (also friends of the family) pursuing and harassing the claimant, I am not convinced within the preponderance of probabilities, as I must be,²⁰ that the Mexican state would not be reasonably forthcoming with serious efforts to protect the claimants if the claimants were to contact the police in Mexico City now, or at some time in the future, for relief from the family and the police officers. The claimants have not yet done so, and there is nothing before me to convince me within the preponderance of probabilities that the XXXXX police officers would be able to influence any police response in Mexico City, which is quite obviously an entirely different police jurisdiction. I am not convinced within the preponderance of probabilities that the claimants would not be able to relocate to Mexico City and access state protection if needed. For all these reasons, I find that the presumption of state protection, at least insofar as Mexico City is concerned, is not rebutted, and therefore, I find that the claimants do have an IFA in Mexico City.

For the same reasons, the claimants have not discharged their onus of showing that the risk of harm they fear would be faced in every part of Mexico pursuant to section 97(1)(b) of the Act. The claimants, therefore, are not persons in need of protection.

CONCLUSION

For all the above reasons, the Refugee Protection Division determines that the claimants are neither Convention refugees nor persons in need of protection.

"V. Rangan" [signature]
V. Rangan

DATED at Toronto this 24^th day of February 2005.

Endnotes

1. Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2. Exhibits C-1 and C-2.
3. Exhibit R-2, copies of his passport and other relevant documents.
4. Exhibit C-3, pp. 7.6-7.9.
5. Exhibit R-1, National Documentation Package, November 26, 2004, tab 6, World Policy Reports, Sexual Orientation and Human Rights in the Americas, item 6.2, Question and Answer Series – Mexico: "Update of Treatment of Homosexual", p. 6.2.31.
6. Ibid., pp. 6.2.31-32.
7. Ibid., p. 6.2.33
8. Ibid., VI, "Prospects for Internal Relocation", p. 6.2.34.
9. Ibid.
10. Ibid., p. 6.2.30.
11. Ibid., p. 6.2.31.
12. Ibid.
13. Ibid., p. 6.2.32.
14. Ibid., V, "Political and Legal Gains", p. 6.2.28.
15. Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
16. Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.).
17. Ibid., pp. 6.1.26-27.
18. Ibid., 6 A, "Influence of Machismo", p. 6.2.11.
19. Ibid., p. 6.2.33.
20. Xue, Jian Fei v. M.C.I. (F.C.T.D., no. IMM-4477-99), Rothstein, October 23, 2000.