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2019 RLLR 134

Citation: 2019 RLLR 134
Tribunal: Refugee Protection Division
Date of Decision: October 7, 2019
Panel: Marshall Schnapp
Counsel for the Claimant(s): Pablo Andres Irribarra Valdes
Country: Dominican Republic
RPD Number: TB8-21226
Associated RPD Number(s): TBS-30602
ATIP Number: A-2021-00256
ATIP Pages: 000099-000101


DECISION

[1]       MEMBER: This is the decision for the following claimants [XXX] and [XXX]. You are both claiming to be citizens of the Dominican Republic and are claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration Refugee Protection Act.

[2]       In reaching my decision today I’ve considered the Chairpersons Guideline on Sexual Orientation and Gender Identity and Expression. I’ve considered both your testimony and other evidence in this case and I am ready to render my decision orally. I find that you are both Convention refugees pursuant to Section 96 of IRPA on the grounds of your membership in a particular social group as a gay man and a bisexual man respectively. I find that you both would face a serious possibility of persecution in the future if returned to the Dominican Republic. I’m accepting your claims.

[3]       The detailed allegations are set out in the Basis of Claim which are at Exhibits 2 and 3. You are both citizens of the Dominican Republic and claim that you fear persecution your country of nationality because of your identity as a gay and bisexual man respectively. Both of you describe how you would not be able to live openly as a couple in the Dominican Republic and that you could be subjected to discrimination or violence because of your sexual orientation. You have each described your own experiences of past violence and discrimination in the Dominican Republic, as well both of you in your Basis of Claim forms described how the police were unresponsive and negative towards you when you attempted to report a robbery and sexual assault.

[4]       Both of you were subject to verbal abuse when others perceived you as a couple out in public. Mr. [XXX] claim form and testimony documented verbal and physical abuse by his family when he exhibited what they deemed as non-masculine behaviors. As well after he was sexually assaulted the police were unwilling to investigate this. Mr. [XXX] claim from and testimony documented that he was sexually abused by his brother from aged 10 to 14 after his brother suspected he may be gay. His brother threatened to tell his family and gang members about his sexual orientation if he told anyone what he was doing to him. As well his employment was in jeopardy due to his sexual orientation. It was also shown that he could lose custody and access to his son if his sexual orientation was made public. You both allege there is no state protection for you or an internal flight alternative. Both claimants explained how homophobia is prevalent all-over Dominican Republic and the police, rather institutions do not have, do not offer any protection to gays or bisexuals.

[5]       Both your personal identities as citizens of the Dominican Republic have been established by your testimony and copies of your passports in Exhibit 1.

[6]       In terms of your general credibility, I have found you both to be credible witnesses. I accept each of your allegations on a balance of probabilities as you both have provided credible testimony as well as documentary evidence in support of your claim. You each spoke about the allegations in your claim, including your sexual orientations, the discrimination and violence you each faced in your country and around your decision to leave. Both your testimony was detailed, spontaneous, and consistent with your other evidence. I have no reason to doubt the genuineness of your claims. Importantly, you also provided several probative documents such as copies of support le-, letters corroborating your allegations. You also provided a police report corroborating the incident of the robbery and as noted the police did not include the sexual assault which you attempted to report. I also have numerous photographs depicting your relationship, vacations together and your time in Canada.

[7]       On the subject of Mr. [XXX] re-availment, I note it was only for eight months. He explained how he was desperate to go back to find a way for both himself and Mr. [XXX] to come to Canada together. He explained that when he was first in Canada he did not realize he could claim refugee status on the basis of sexual orientation and he only determined that when he was back in the Dominican Republic. After speaking with someone, a friend he made in Canada when he was here. He further explained that after being back in the Dominican Republic and ex-, and experiencing additional harassment based on their sexual orientation the decision was made for him to go back to Canada and claim refugee status. While he and Mr. [XXX] would find a way to get him to Canada. It’s important to consider the context here, fear, depression and a lack of knowledge that he could’ve claimed his refugee status when he was first here. And I do not believe that it would be reasonable to infer that your return indicates a lack of subjective fear. I find that you both, that both of your subjective fears been established by the credible testimony and documentary evidence. And I believe what you both have alleged on a balance of probabilities.

State Protection

[8]       Having both, having accepted both of your allegations I have assessed these allegations against the country conditions evidence that we have on the Dominican Republic to determine whether each of you had faced a serious possibility of persecution and whether state protection will be available to you. I have considered Item 6.1, 6.4, and 2.1 of the Na-, National Documentation Package for the Dominican Republic which is at Exhibit 4. As well, your counsel has provided multiple documents and newspaper reports. To summarize, the evidence indicates that LGBT individuals often face intimidation and harassment in the Dominican Republic both from authorities and society. There were reports of violence against LGBT individuals including gay and bisexual men. People were reluctant to file official complaints due to fear of reprisals or humiliation.

[9]       It is noted that a report cited in Item 6.1 also indicates that the LGBT community experiences difficulty when trying to access the justice system and the police sometimes do not provide them with assistance. Moreover, discrimination is persa-, pervasive and affects LGBT people in the context of employment in the workplace and educational settings and healthcare settings. I find that you would not be able to live your lives freely and you would not be able to maintain a relationship in an open manner without risking harm or discrimination. You would face a risk of violence, harassment or discrimination by private actors, or even the police and I’ve considered that some of this has already occurred to you in the past. I find that the evidence establishes that you would each face a serious possibility of persecution due to you sexual orientation and the evidence is sufficient to also rebut the presumption of state protection. Finally given that the situation would be generally consistent throughout the Dominican Republic there would be no internal flight alternative available to either of you.

[10]     I therefore determine that each of you has a well-founded fear of persecution on the basis of your membership in a particular social group and that you are both Convention refugees pursuant to Section 96 of the Immigration Refugee Protection Act. Your claims are therefore accepted.

———- REASONS CONCLUDED ———-