2024 RLLR 41

Citation: 2024 RLLR 41
Tribunal: Refugee Protection Division
Date of Decision: March 4, 2024
Panel: S. Seevaratnam
Counsel for the Claimant(s): Karim Escalona
Country: Dominican Republic
RPD Number: TC2-35405
Associated RPD Number(s): N/A
ATIP Number: A-2025-00128
ATIP Pages: N/A

REASONS FOR DECISION

[1] The claimant, XXXX XXXX XXXX XXXX XXXX, claims to be a citizen of the Dominican Republic and she is claiming refugee protection pursuant to sections 96 and 97 (1) of the Immigration and Refugee Protection Act (IRPA).[1]

[2] The claimant alleges that she fears XXXX and her family, the Dominican Republic society at large, and the security forces, as a bisexual person.

[3] The Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC)[2] was considered and applied.

ALLEGATIONS

[4] The details of the allegations are outlined in her Basis of Claim (BOC) form and narrative.[3]

ISSUES

[5] The determinative issues, identified at the commencement of the hearing, were the identity of the claimant’s sexual orientation, credibility, delay, reavailment, the agents of persecution, the objective basis for the claimant’s well-founded fear of persecution, state protection, and discrimination amounting to persecution.

DETERMINATION

[6] The panel finds the claimant to be a Convention refugee. The panel’s reasons are as follows.

IDENTITY

Nationality

[7] In Exhibit 1, the claimant has provided a copy of her passport issued by the Dominican Republic.[4] In addition, the claimant has provided a copy of her birth certificate,[5] and her educational certificates, all issued in the Dominican Republic.[6]

[8] The panel is satisfied that the claimant is a national of the Dominican Republic.

CREDIBILITY

[9] The panel is cognizant of the leading jurisprudence on the issue of credibility. Maldonado[7] stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.

Sexual Orientation

[10] The claimant’s sworn viva voce evidence was internally consistent with her BOC form and narrative,[8] her personal[9] and objective documentary evidence,[10] and the current National Documentation Package on the Dominican Republic.[11] The claimant provided letters of support from her parents,[12] and her sister.[13] The claimant explained that she kept her sexual orientation and her same sex relationship with XXXX a secret. She has provided photographs of her and her same-sex partner,[14] the gifts she received from XXXX,[15] and the way she dressed.[16] She explained that she has only had one relationship. She testified that she met XXXX when she was seventeen. She testified that she identifies as a bisexual person since she is attracted to both genders but finds women more attractive. She explained that she was threatened with a XXXX XXXX by XXXX, a friend of XXXX who was jealous of their relationship. The claimant testified that she reported the threat to the police who dismissed it and did not investigate the matter. She stated that XXXX’s family has political influence and holds prominent positions in Santiago, her hometown. The claimant explained that XXXX successfully hacked her Facebook and Instagram accounts and circulated intimate photos of the claimant and XXXX which went viral. The claimant testified that she was physically attacked and verbally abused at school and in her community in Santiago due to her sexual orientation.

Delay and Reavailment

[11] The claimant testified that when she arrived in XXXX 2020 in Canada, she was faced with the pandemic. She was unable to navigate the refugee process. She also explained that her XXXX XXXX declined, and she was feeling XXXX and missed her parents thus, she returned to Dominican Republic in XXXX 2021. The report from the XXXX XXXX corroborates the claimant’s XXXX XXXX. Accordingly, the panel has not drawn a negative inference from the delay in initiating her refugee claim and her reavailment. The pandemic and her declining XXXX XXXX were issues beyond the claimant’s control. The claimant stated that during her stay in the Dominican Republic in 2021, XXXX continued to threaten her and reposted the photos from her past recreating an environment of ostracization and humiliation. The claimant was visibly emotional while testifying and shared her difficulty in reliving those adverse and emotionally painful experiences in her community. The claimant stated that she was unable to continue living in a homophobic society where she was continuously ridiculed and attacked due to her sexual orientation. She stated that she had to hide her sexual orientation irrespective of where she resided in the Dominican Republic. She stated that same-sex relationships are not criminalized but society is conventional and sees relationships and marriage between a man and woman as the norm. She said that society is influenced by the Catholic church. Therefore, she returned to Canada in XXXX 2021, sought legal assistance, and initiated her refugee claim. The claimant stated that in Canada she is a member of XXXX.[17] The claimant has provided photos of her participating in parades.[18] Friends she has met in Canada have provided letters of support. [19] She explained that she is able to live a life without societal stigma. She stated that she feels free and liberated. She testified that she is finally happy.

[12] The panel finds on a balance of probabilities the claimant to be a credible and trustworthy witness. Her testimony was straightforward.

[13] The panel further finds that the claimant has established, on a balance of probabilities, the subjective basis for her well-founded fear of persecution based on her sexual orientation, as a bisexual person.

WELL-FOUNDED FEAR OF PERSECUTION

[14] The current media reports provided by counsel for the claimant indicates that same sex sexual activity is not explicitly criminalized in the Dominican Republic, which sets the country apart from many of its Caribbean neighbors. But LGBTQ Dominicans are subjected to violence and discrimination based on their sexual orientation and/or gender identity .[20]

[15] The reports state that LGBTQ people face serious issues of violence and discrimination, including hate crimes, arbitrary arrests, extortion by members of the police force, and lack of access to services and employment. According to a 2014 Gallup- Hoy poll, 73% of Dominicans said that LGBTQ people experience discrimination in the country.[21]

[16] The media reports further indicates that LGBTQ people experience discrimination in access to employment, education, housing, and issues in access to healthcare.[22]

Education

[17] The claimant testified that when photos of her and XXXX were circulated, she was attacked and verbally abused by her classmates. She explained that other students passed judgement on her sexual orientation. She testified that it became an intolerant environment.

Employment

[18] The claimant testified that she never disclosed her sexual orientation at work in fear of discrimination and reprisals. She stated that she may even risk losing her position. She explained that employers and society at large are not tolerant towards bisexual persons.

STATE PROTECTION

[19] There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens.[23] To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.[24]

[20] The claimant testified that she reported the matter to the police but they did nothing. The media reports provided by counsel for the claimant finds that members of the police force are often complicit or directly responsible for violence against members of the LGBTQ community.[25] Some have suffered violence and extortion while in custody.[26] LGBTQ Dominicans are reluctant to report violations, given a history of impunity and a mistrust of the police force.[27]

[21] The United States Department of State (DOS) Report for Dominican Republic, Country Reports on Human Rights Practices for 2022 indicates that the law does not criminalize consensual same-sex sexual conduct between adults or so-called cross-dressing.[28] Violence and threats of violence against LGBTQI+ persons were common, especially against gay men, lesbians, and transgender women. Victims often declined to file complaints due to fears of

further harassment or being outed. The National Police largely failed to respond to reports of these crimes because police generally did not prioritize this victim group and often showed indifference or outright hostility to the LGBTQI+ community.[29] Media and civil society observers highlighted several reports of LGBTQI+ persons being targeted for robbery, extortion, abuse, or murder through location-based dating apps.[30] The constitution protects the principles of non-discrimination and equality before the law, but it does not specifically include sexual orientation, gender identity and expression, or sex characteristics as protected categories.[31]

[22] Sources report that LGBTQ persons in the Dominican Republic encounter violence.[32]

[23] In addition, sources report that LGBTQ persons in the Dominican Republic experience police abuse.[33] US Country Reports 2019 states that NGOs reported “police abuse, including arbitrary arrest, police violence, and extortion against LGBTI persons.”[34] LGBTQ persons have reported being victims of arbitrary arrests… LGBTQ persons experience discrimination when interacting with state authorities. According to the same report, restrictions on access to basic rights for LGBTQ people, including healthcare and access to justice, are [translation) “influenced and/or condoned by authorities.”[35]

[24] The DOS executive summary indicates that significant human rights issues included credible reports of unlawful or arbitrary killings by government security forces; cruel, inhuman, or degrading treatment or punishment by police and other government agents; harsh and life – threatening prison conditions; arbitrary detention; arbitrary interference with privacy; serious government corruption; and violence against lesbian, gay, bisexual, transgender, queer, and intersex persons. The government took steps in some cases to prosecute and punish officials who committed human rights abuses or corrupt acts, but inconsistent and ineffective application of the law sometimes led to impunity.[36]

[25] Dominican Republic. Freedom in the World 2022 report finds that corruption remains a serious, systemic problem at all levels of the government, judiciary, and security forces, as well as in the private sector.[37] Judicial independence is hampered by corruption and the judiciary is susceptible to political pressure.[38]

[26] It is evident based on current and reliable documentary evidence that effective state protection will not be forthcoming to the claimant, a bisexual person. The NDP[39] and the documentary evidence submitted by counsel for the claimant,[40] makes clear that society at large and the security forces are among her agents of persecution. As such, in these circumstances, it is clear and convincing evidence that the state is unable or unwilling to protect the claimant. Accordingly, the claimant has successfully rebutted, on a balance of probabilities, the presumption of state protection.

[27] The Chairperson’s Guideline 9, s.8.7.1. clearly states that an IFA is not viable if the claimant must conceal her sexual orientation in order to live in a location.[41] The claimant’s sworn viva voce evidence revealed that she feared disclosing her sexual orientation. She testified that she kept her same sex relationship with XXXX a secret. When photos and personal information was shared by her agent of persecution, XXXX, she faced hostility, ridicule, and ostracization at school and in her community. She feared for her life from XXXX and other homophobic members of society.

[28] The objective and reliable documentary evidence from a variety of reliable sources indicates that being a bisexual person is treated with stigma and humiliation throughout the Dominican Republic.[42] Accordingly, the panel finds that there is a serious possibility of persecution throughout Dominican Republic and there is no viable IFA where the claimant could reside without any risk to her life or safety.

CONCLUSION

[29] The panel finds the claimant, XXXX XXXX XXXX XXXX XXXX, to be a Convention refugee. The claimant has established that there is a reasonable chance of persecution if she was to return to her country of nationality, the Dominican Republic, today.

[30] Accordingly, the Refugee Protection Division accepts this claim.

——— REASONS CONCLUDED ———

[1] The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).

[2] Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression and Sex Characteristics, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: September 2021.

[3] Exhibit 2, Basis of Claim Form – TC2-35405.

[4] Exhibit 1, Claim referral information from CBSA/IRCC.

[5] Exhibit 5, Personal Disclosure received February 23, 2024, 18 items, 57 pages, item 14.

[6] Ibid., items 15-18.

[7] Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).

[8] Exhibit 2 BOC Form and Narrative (TC2-35405).

[9] Exhibit 5, Personal Disclosure received February 23, 2024, 18 items, 57 pages.

[10] Exhibit 6, Country Conditions Disclosure received February 24, 2024, 22 pages.

[11] Exhibit 3, National Documentation Package (NDP) for Dominican Republic – July 31, 2023.

[12] Exhibit 5, Personal Disclosure received February 23, 2024, 18 items, 57 pages, item 5.

[13] Ibid., item 6.

[14] Ibid., item 9.

[15] Ibid., item 10.

[16] Ibid., item 7.

[17] Exhibit 5, Personal Disclosure received February 23, 2024, 18 items, 57 pages, item 2.

[18] Ibid., item 8.

[19] Ibid., item 3 and 4.

[20] Exhibit 6, Country Conditions Disclosure received February 24, 2024, 22 pages, “LGBT Issues in the Dominican Republic.”

[21] Ibid.

[22] Ibid.

[23] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

[24] Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), para. 38.

[25] Exhibit 6, Country Conditions Disclosure received February 24, 2024, 22 pages, “LGBT Issues in the Dominican Republic.”

[26] Ibid.

[27] Ibid.

[28] Exhibit 3, NDP for Dominican Republic (July 31, 2023), item 2.1, s.6. Acts of Violence, Criminalization, and Other Abuses Based on Sexual Orientation, Gender Identity or Expression, or Sex Characteristics.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Ibid., item 6.1, s.2.1.2. Violence.

[33] Ibid., s.2.2. Treatment by Authorities.

[34] Ibid

[35] Ibid.

[36] Ibid., item 2.1, Executive Summary.

[37] Ibid., item 2.3, C2.

[38] Ibid., F1.

[39] Exhibit 3, NDP for Dominican Republic (July 31, 2023).

[40] Exhibit 6, Country Conditions Disclosure received February 24, 2024, 22 pages.

[41] Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression and Sex Characteristics, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: September 2021, s. 8.7.

[42] Exhibit 3, NDP for Dominican Republic (July 31, 2023), item 6.1, and Exhibit 6, Country Conditions Disclosure received February 24, 2024, 22 pages.