Citation: 2020 RLLR 30
Tribunal: Refugee Protection Division
Date of Decision: February 28, 2020
Panel: David Jones
Counsel for the Claimant(s): N/A
Country: Ecuador
RPD Number: VB9-06374
ATIP Number: A-2021-00540
ATIP Pages: 000182-0000186
DECISION
[1] MEMBER: So, this is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada, for [XXX], from Ecuador, who is seeking refugee protection, pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act. I’ve also reviewed and applied both Chairpers- I’ve also reviewed and applied the Chairperson’s Guidelines on proceedings before the IRB involving Sexual Orientation and Gender-Gu- and Gender Identity and Expression.
Allegations
[2] The sp- the specifics of the claim are set out in the narrative of the claimant’s Basis of Claim form. In summary, the claimant fears persecution from unknown individuals, if he were to return to Ecuador because he is gay. I’m not going to repeat in detail all the events that lead to the claimant to flee Ecuador, but I will note that, on [XXX], 2019, the claimant received his first threat on Instagram saying: they will get rid of all the gays in Ecuador. The claimant was visiting Utah at the time. On [XXX], 2019, the claimant received a phone call in Utah on his cell phone saying he’s being watched. On [XXX], 2019, the claimant’s cousin received a call that threatened the claimant. The claimant’s cousin reported this threat to the authorities in Ecuador. On [XXX], 2019, the claimant got an email with the details of his return flight from an email account that roughly translates to: [XXX]. On [XXX], 2019, the claimant returned to Ecuador, after changing his flight from [XXX] due to the threats. On [XXX], 2019, the claimant made a report to the police and the attorney general’s office. On [XXX], 2019, the claimant took a taxi home, after being out with friends and, after getting out of the taxi and walking towards his home, he does not remember anything else from that night. The claimant woke up the next morning and felt a burning sensation on his side, when lifted his shirt, he noticed the word “gay” had been burned into him. The claimant went to file a new complaint with the attorney general’s office, but he was told he should wait for them to call. The claimant shared his story on Facebook and it was picked by the media in Ecuador. On [XXX], 2019, after the claimant’s story was public, he received a call from the attorney general’s office asking for his statement. He was told the process would take two or three weeks, and he should stay home and wait for another call. The claimant decided to move to Quinto, the capital of Ecuador, for his safety. On [XXX] 2019, when in, while in Quinto, the claimant received another threat, and it also stated that they knew his new location; although it did not provide any details. The claimant decided to leave Ecuador on [XXX], 2019. The claimant left, oh sorry, on [XXX] 2019, the claimant left Ecuador and flew to Canada where he applied for refugee protection.
Determination
[3] I find that the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act.
Analysis
Identity
[4] The claimant’s identity as a citizen of Ecuador had been established by his Ecuadorian passport; located at Exhibit 1.
Nexus
[5] The allegations establish a Nexus to a Convention ground for the claimant, based on his particular social group; namely as his sexual orientation as a gay man.
Credibility
[6] I find that the claimant is a credible witness. In making that finding, I’m relying on a, the principle that a claimant who affirms to tell the truth creates a presumption of truthfulness, unless there are reasons to doubt their truthfulness. In this regard, the claimant testified in a consistent and straightforward manner that was consistent with his Basis of Claim form and supporting documents. The claimant was able to speak clearly about his previous relationships, his experience living in Ecuador as a gay man, and the threats he received. And he was also able to answer spe- the specific questions asked. There were no relevant inconsten- inconsistencies in his testimony of contradictions between his testimony and o- the other evidence. I find that the claimant is a credible witness. The claimant also provided documents to support his claim. For example, Exhibit 4 contains photographs showing the injuries the claimant received, copies of the threats he received, copies of the reports he made to authorities in Ecuador, and a news article about when he was assaulted. Exhibit 5 also contains examples of the threats the claimant’s received. I have not reason to doubt the genuineness of these documents and, since they related to the claimant’s sexual orientation and the abuse he received because of it, I find these documents support the claimant’ s allegations and overall claim.
[7] While the claimant did return to Ecuador after receiving his first threat, the claimant testified he did not appreciate the risk he faced until he was back in Ecuador. I accept the claimant’s reasons for returning to Ecuador and for not making a claim in the United States, and I find that he claimant has a subjective fear of being persecuted if he were to return. As such, I find that the claimant has established, on a balance of probabilities, the fact alleged in his claim, including that the claimant is a gay man.
Objective Basis
[8] The objective evidence is mixed when it comes to the country conditions regarding sexual orientation. The US Department of State report, at Item 2.1 in the National Documentation Package located at Exhibit 3, states that, and I quote, “the constitution includes a principle of non-discrimination and the right to decide one’s sexual orientation as a right. The law also prohibits hate-crimes. Although the law prohibits discrimination based on sexual-orientation; lesbian, gay, bisexual, transgender and intersect: LGBTI, persons continue to suffer discrimination from both public and private entities, particularly in education, employment, and access to healthcare. LGBTI organizations reported that transgender persons suffered more discriminations because they are more visible.” In addition, the report goes on to state, and I quote, “the government, lead by the ombudsman’s office, was generally responsible, responsive to concerns raised by the LGBTI community. Never the less, LGBI- LGBTI groups claimed police and prosecutors did not thoroughly investigate deaths of LGBTI individuals; including when there was suspicion that the killing motivated by anti-LGBTI bias.”, end quote. A report at Item 6.1 entitled, and I qu-: Ecuador LGBTI Landscape Analysis of Political, Economic and Social Conditions, indicates that, while Ecuador stands out amongst its neighbors for policies in favor of LGBTI rights, there is, and I quote, “a clear rift between legal rights and the lives of LGBTI people, and the lives LGBTI people truly live”, end quote. And the report goes on to indicate that, while violent crimes are an in, in a din- decline in general in Ecuador, LGBTI individuals face disproportionate levels of violence and abuse in public settings. The claimant also provided news articles to support his claim. Exhibit 4 and Exhibit 6, contain newspaper stories about the claimant’s own assault and the threats he received. The article found at Exhibit 6, contains information about another individual who received similar threats. This individual in an acquaintance of the claimant, and who is now living in Spain due to his fears in Ecuador. Based on the totality of the evidence, I find the claimant has established a well-founded fear of persecution if he were to return to Ecuador, by reason of his sexual orientation.
State Protection
[9] With respect to state protection, a State is presumed capable of protecting its citizens and a claimant must establish, on a balance of probabilities, through clear and convincing evidence that a country’s protection is inadequate. Simply asserting a subjective belief that state protection is not an- is not enough to rebut this presumption. The more democratic the State’s insti- institutions, the more a claimant must do to exhaust the options available to him. As discussed below, I find the claimant has rebutted this presumption. While the objective evidence is mixed, it does support the claimant’s fears that there is no operationally effective state protection available to him in his particular circumstance. Report at Item 6.1, states that, and I quote, “in spite of legal advances, activists continue to document discrimination, abuse, and LGBTI activists complain of lack of enforcement are on the rise.”, end quote. That report goes on to state that, and I quote, “Ecuador has established many protections for LGBTI people. Whereas the reports on the ground lel- on the ground reveal the Jack of meaningful implementation keeps many members of the LGBTI community from fully accessing these rights”, end quote. Further, as noted above, Item 2.1, indicates that police and prosecutors do not thoroughly investigate violence against LGBTI individuals when it appears it was motivated by a hate-crime. This objective evidence is reflected in the claimant’s own experience. The claimant testified that he made five attempts to receive state protection, including with the police, the attorney general’s office, and the om- ombudsman. The complaints were made both before the attack, which is, which was in response to the threats he received, and after the attack. The claimant testified that, after he was attacked, he reported the attack to the police and the police officer told him that, next time, he should just relax and enjoy it. The claimant testified that he felt more vulnerable after contacting the authorities than he did before. The claimant followed up as recently as one month ago and was told there’s been no progress with his complaints. The claimant has also sought help from LGBTI organizations in Ecuador. I note that the claimant testified that, when he was at an LGBTI organization, he was shown a listing of other victims of violence due to their sexual orientation in Ecuador, and that list was described as being over ten pages long. I find that the claimant has made efforts to obtain protection from authorities in Ecuador and that there is no adequate state protection available to him.
Internal Flight Alternative
[10] The test for an internal flight alternative is well-established. I must be satisfied that, one, the claimant would not be subject personally a danger of torture, or to a risk of, of life, or a risk cruel and unusual punishment, or face a serious possibility of persecution in the proposed internal flight alternative. And, two, that conditions in that part of the country are such that it would be objectionally reasonable in all of the circumstances, including those particular to the claimant, for him to seek refuge there. For the reasons below, I find the claimant does not have an internal flight alternative, as he would face a serious possibility of persecution anywhere in Ecuador. The issue of whether a city of Cuenca would be a viable alter- internal flight alternative for the claimant, was identified at the start of the hearing. With respect to the risk faced elsewhere in the country, the claimant testified that the first tried to escape harm by moving to Quinto, which is the furthest city in Ecuador from where he was living. The claimant described Quinto as the capital of Ecuador in every sense; including its cultural, liberal and financial capital. With a population of 3 million, the claimant felt he would be safe there. Shortly after arriving in Quinto, the claimant began to receive threats again. While the threats do not specifically identify where he was, they did refer to him changing cities and that they have located him. With respect to Cuenca, specifically the claimant testified that while the crime rate is low, he would be unable to live openly in Cuenca as it is a very religious city and dominated by macho culture. The claimant described how a gay man was recently murdered in Cuenca and his body dumped by the river with a bag over his head. The claimant further testified that he has visited Cuenca before with his partner and he is aware that there is no gay culture there. As an example of the risk faced in Cuenca, the claimant testified that he used a popular at- App for dating gay men in Cuenca, and none of the men displayed photographs of their faces. The objective evidence supports the claimant’s fears. In addition to what has been outlined above, a report at Item 6.3, notes that, and I quote, “in most of Ecuador, there’s a common view that religion must guide to those who are lost or struggling with sinful temptations, and that”, end quote. And that report goes on to state that, and I quote, “these beliefs are further incentivized religious and political debates that infiltrate families, reinforce the deep-rooted disfavouring of the LGBTQ community in Ecuador”, end quote. The claimant should not be required to hide his sexual orientation to be safe in an internal flight alternative. For the reasons above, I find that the claimant faces a serious possibility of persecution due to his sexual orientation in Cuenca and throughout Ecuador and, as such, there is no internal flight alternative available to him in the country.
Conclusion
[11] For the foregoing resuns- reasons, I determine that the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act, and the Board therefore accepts the claim.
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