Categories
All Countries Venezuela

2020 RLLR 143

Citation: 2020 RLLR 143
Tribunal: Refugee Protection Division
Date of Decision: November 2, 2020
Panel: Kerry Cundal
Counsel for the Claimant(s): Leonardo Jose Di Leone Velasquez
Country: Venezuela
RPD Number: VB9-08424
Associated RPD Number(s): VB9-08444, VB9-08453, VB9-08454
ATIP Number: A-2021-01106
ATIP Pages: 000169-000173

REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claim of the principal claimant, [XXX] and his spouse, [XXX] as citizens of Venezuela and their two minor children, [XXX] and [XXX] as citizens of the United States of America (U.S.) who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“).[1] The claimants’ identities have been established on a balance of probabilities by copies of their passports.[2]

ALLEGATIONS

[2]       The claimants fear return to Venezuela because they fear persecution due to their political opinion, namely their opposition and political activities, including supporting the Action Democracy opposition party against the regime. The claimants provided further details in their Basis of Claim (BOC) forms.[3] The claimants provided corroborative documents including identity documents, membership in the Action Democracy political opposition party, letters of support and screenshots of social media posts against the current regime.[4] The panel has reviewed and applied the Chairperson’s Guideline on Women Refugee Claimants Fearing Gender-Related Persecution.[5]

Determination

[3]       The panel finds that the principal claimant and the associate claimant, his spouse, have established that they are Convention refugees pursuant to section 96 of the Act for the reasons that follow.

[4]       The panel finds that the two minor associate claimants are neither Convention refugees pursuant to section 96 nor persons in need of protection pursuant to subsection 97(1) of the Act for the reasons that follow.

Credibility and Well-Founded Fear of Persecution

[5]       The claimants testified in a straightforward and consistent manner, consistent with their BOC and supporting documents. The panel finds that the claimants are credible witnesses. The principal claimant and designated representative for his two minor children, the associate claimants, testified that they do not have any fears of return to the U.S. for their two American children. He confirmed that that they are citizens of the U.S. Accordingly, the panel finds that their claims fail under both section 96 and subsection 97(1) of the Act.

[6]       He testified that he fears that he will be imprisoned, beaten and killed because of his political opposition if he returns to Venezuela. The two adult claimants testified that they left Venezuela in 2004 due to the persecution and threats they suffered during the Chavez regime. They testified that they did not have citizenship, permanent residence and had never made an asylum claim in the U.S. The principal claimant testified that he was able to obtain renewable work permits during their time in the U.S. He testified that they never returned to Venezuela. The two adult claimants testified that they continue to be politically active through social media, helping with humanitarian aid for opposition in Venezuela and participating in protests against the Maduro regime in Miami where they were living. The female adult claimant testified that she also fears gender-based persecution including rape by security forces as she has seen media reports regarding female opposition members who have suffered this kind of persecution in Venezuela.

[7]       The objective evidence supports the claimants’ fear of return to Venezuela because of their political opposition to the current government. The objective evidence indicates that ‘”civilian authorities’ control over the security forces declined and was deeply politicized.”[6] There are no independent government institutions remaining today in Venezuela to act as a check on executive power and “a series of measures by the Maduro and Chávez governments stacked the courts with judges who make no pretense of independence. The government has been repressing dissent through often-violent crackdowns on street protests, jailing opponents, and prosecuting civilians in military courts. It has also stripped power from the opposition-led legislature.”[7]

[8]       Further, the objective evidence indicates that authorities persecuted political opposition in Venezuela:

The most significant human rights issues included extrajudicial killings by security forces, including government sponsored “colectivos”; torture by security forces; harsh and life-threatening prison conditions; widespread arbitrary detentions; and political prisoners. The government unlawfully interfered with privacy rights, used military courts to try civilians, and ignored judicial orders to release prisoners. The government routinely blocked signals, interfered with the operations, or shut down privately owned television, radio, and other media outlets. The law criminalized criticism of the government, and the government threatened violence and detained journalists critical of the government, used violence to repress peaceful demonstrations…[8]

[9]       Based on the totality of the evidence, the panel finds that the claimants have established a nexus to political opinion and that they would face a serious possibility of persecution because of their political opposition against the current regime.

State Protection and Internal Flight Alternative

[10]     Given that the state is the agent of harm, the panel finds that there is no state protection available to the claimants. Further, given the state’s capacity and ongoing interest in arbitrarily detaining and abusing citizens who oppose the government, the panel finds that the claimants would face a serious possibility of persecution throughout Venezuela and it is not objectively reasonable in all of the circumstances including their particular circumstances to relocate anywhere in Venezuela. Accordingly, the panel finds that there is no internal flight alternative available to the claimants.

CONCLUSION

[11]     For the forgoing reasons, the panel finds that the principal claimant and the associate claimant, his spouse, have established that they are Convention refugees pursuant to section 96 of the Act and the Immigration and Refugee Board of Canada therefore accepts their claims.

[12]     For the forgoing reasons, the panel finds that the two minor associate claimants are neither Convention refugees pursuant to section 96 nor persons in need of protection pursuant to subsection 97(1) of the Act and the Immigration and Refugee Board of Canada therefore rejects their claims.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.  

[2] Exhibit 1.

[3] Exhibit 2.

[4] Exhibit 4.

[5] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa, Canada, March 1993, updated November 1996.

[6]Exhibit 3, National Documentation Package (NDP), Venezuela, September 30, 2020, Item 2.1.

[7] Exhibit 3, NDP, Item 2.3.

[8] Exhibit 3, NDP, Item 2.1.

Categories
All Countries Venezuela

2020 RLLR 140

Citation: 2020 RLLR 140
Tribunal: Refugee Protection Division
Date of Decision: January 14, 2020
Panel: Kari Schroeder
Counsel for the Claimant(s): Leonardo Jose Di Leone Velasquez
Country: Venezuela
RPD Number: VB9-03821,
Associated RPD Number(s): VB9-03830, VB9-03834
ATIP Number: A-2021-01106
ATIP Pages: 000154-000157

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division in the claims [XXX] as the principal claimant, [XXX] as the associate claimant, and [XXX] as the minor claimant, as citizens of Venezuela who are claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.

Allegations

[2]       The following is a brief synopsis of the allegations put forward by the claimants. The principal claimant worked for the [XXX] for 13 years. He is opposed to President Maduro’s government and fears persecution because of his political views. The claimant does not support any particular political party but has attended several street rallies and protests. While employed with the [XXX] the claimant heard about minor incidents of corruption and reported them to his superior. However, in his last year of working with the company, the claimant noticed some incidents of corruption that involved millions of dollars. He and two other [XXX] worked to expose this corruption in [XXX] of 2018 after the claimant no longer worked there. While the claimant was in the United States, he learned that the [XXX] were arrested, the claimant inquired with a lawyer and after confirming there were no charges against him, returned to Venezuela in [XXX] of 2018.

[3]       The claimant became politically active again upon his return, he began receiving threatening phone calls in [XXX] of 2019, in [XXX] his son was threatened and fled the country. The claimant continued to receive calls in which he was accused of consp-, conspiring against the state and hindering business deals with the [XXX]. The claimants left Venezuela on [XXX] of 2019, they did not claim protection in the United States. They learned that a group of soldiers had visited their home on [XXX], 2019 and confiscated the claimants’ computers.  The claimants fear that if they return to Venezuela, they will experience detention, further intimidation, or be killed.

Determination

[4]       I find that the claimants are Convention refugees pursuant to Section 97 of the Act for the reasons that follow.

ANALYSIS

[5]       The claimants’ identities have been established today through certified copies of their passports on file and I am satisfied that they are both and as well as the minor claimant, nationals of Venezuela. In terms of credibility, there is a presumption of truth applied to all claimants, unless there is a reason to doubt their allegations. Today, both claimants testified and they were credible and straightforward witnesses, they offered canor-, candid and spontaneous testimony and did not embellish, even when given the opportunity to do so. There were no material contradictions between your testimony and the Basis of Claim forms that would cause me to doubt their allegations.

[6]       The principal claimant testified that he noticed, starting in 2014, that some purchases for the contract of services with [XXX] were taking place in a very irregular manner, outside of Venezuela laws. The claimant testified that this generated some very intense discussions with his boss, who did not respond positively. The claimant refused to approve these processes and so his boss delegated that responsibility to someone else. As the claimant rose in the company, he had access to more and more information. He testified that starting in 2017, he was involved in some very large purchases and noticed that the company was purchasing extremely expensive equipment from out of the country, which in the claimant’s view was unnecessary. He filed a complaint, along with two other employees, [XXX] named [XXX] and [XXX], to the Prevention and Control of Losses in mid-2017. He hoped that this would prompt an investigation and an audit, he met directly with that manager and was hoping that some action would be taken, however, nothing was done. The claimant decided to leave the [XXX] in [XXX] of 2017 because of political pressure and because he had angered some higher up people. He clarified that at that time he had become more politically active, participating in more demonstrations as well as volunteering and coordinating logistics, to ensure people’s presence at demonstrations. He also distributed water and food and would assist people who were injured, the claimant believes that this made him more visible. The claimant testified that he supported all opposition parties, although he did some volunteer work for the Democratic Action Party. After the claimant left the company at the beginning of [XXX] of 2018, the claimant met with the two other [XXX] and gave them some of the additional information he had, to add to their complaint, he then left for the United States to visit his brother. That was when he learned about the detention of [XXX] and that [XXX] had fled the country to avoid detention. The claimant spoke to a lawyer and returned in [XXX] 2018 once he felt it was safe. In [XXX] 2019, the claimant testified that he began to receive threatening phones from the Colectivos.

[7]       The claimant believes that when the armed soldiers visited his home in 2019 that they were searching for some sort of further information about the complaints they had made. When I asked the claimant, what had prompted him to ramp up his political activity in 2017, he testified that through his position with [XXX] he was watching money being given freely to other countries. While people in his country were starving and being denied access to basic services, such as water and healthcare. The claimant spoke of his country as being in the clutches of a dictatorship and a criminal organization, he described Juan Guaidó as the only constitutionally legitimate president.

[8]       I also questioned the associate claimant today and she testified that she would accompany her husband in all demonstrations that was also not affiliated with any particular party. The claimant testified that she has never been directly threatened herself but that her children were. She described how at the end of [XXX] of 2019 when the Colectivo-, Colectivos called they threatened their son directly. They knew information about their son, including his routine and his place of study, they then threatened to kill him and he had to leave the country. The associate claimant testified that she participated in approximately 50 to 60 protests, beginning around 2014, she continued her participation, even when her husband was in the United States for several months. And so, I accept that her political opinions exist separate and apart from the principal claimant. She described the regime as malignant, the claimant also believes that their lives would be in danger if they were to return. Finally, the principal claimant testified that his former colleague [XXX] is still in detention to this day.

[9]       I have documentary evidence to corroborate the claim, including an activism certificate from the Democratic Action Party. As well as of-, as a copy of the complaint that the principal claimant made to the prevention and control of lasses. I have several letters corroborating events which took place in Venezuela before the claimants left. Based on the totality of the evidence, I accept that both claimants are opposed to the regime and have expressed anti-government political opinions, both through street protest and in the case of the principal claimant through anti-corruption complaints. Given that the claimants’ house was raided, I also find that the minor claimant has established a subjective fear of returning despite her young age. I find there is a Nexus between the claimants’ allegations on the Convention ground of political opinion. The duty of this Panel is, therefore, to determine whether the claimants’ fears are well-founded, having accepted the claimants’ allegations, I turn to the evidence on the treatment of political opponents in Venezuela.

[10]     The objective evidence before me corroborates the claim, on [XXX] of last year, the government organized snap Presidential elections that were neither free nor fair. Nicolás Maduro was re-elected through this deeply flawed political process, which much of the opposition boycotted and the international community condemned, and this can be found at Document 2.1 of the National Documentation Package. The evidence also confirms that several thousand people have been detained in connection with anti­government demonstrations in Venezuela. The government routinely detains political opponents, including lesser-known activists or people whom the government believes have links to the political opposition. The government has issued an indefinite ban on all protests.

[11]     According to a report by Freedom House, also in the NDP, Venezuela is one of two countries in the Western hemisphere along with Cuba to be rated as not free by Freedom House. Political prisoners are subject to torture and other human rights abuses. There is pervasive corruption and impunity among all security forces and in government offices. Several hundred people have been killed or harmed in protests. Non­-governmental organizations also publish reports that authorities generally mistreat, abuse, and threaten to kill detainees. Civilian political prisoners were routinely held in military prisons, those found guilty of insulting the President are subject to lengthy prison terms in abhorred conditions. Opponents of the government are frequently harassed and intimidated by the National Guard, the Savane, and members of the Colectivos, family members of political opponents are also targeted.

[12]     Therefore, based on the totality of the evidence before me, I find that the claimants have established through sufficient reliable evidence that they face a serious possibility of persecution if they return to Venezuela because of their opposition to the current government and the evidence establishing that political opponents are persecuted. Further, given that the State is the agent of harm in this case, l find that there is no operationally effective state protection available to the claimants. I also find that there are no internal flight alternatives available to the claimants in their particular circumstances because opponents of the government face a risk of persecution throughout the country. I, therefore, find that the claimants face a serious possibility of persecution in Venezuela, no matter where they live.

CONCLUSION

[13]     I find that the claimants are Convention refugees pursuant to the Act and the Board, therefore, accepts their claims, today.

———- REASONS CONCLUDED ———-

Categories
All Countries Venezuela

2020 RLLR 139

Citation: 2020 RLLR 139
Tribunal: Refugee Protection Division
Date of Decision: February 28, 2020
Panel: Persia Sayyari
Counsel for the Claimant(s): Molly Joeck
Country: Venezuela
RPD Number: VB9-01283
Associated RPD Number(s): VB9-01290, VB9-01293, VB9-01294, VB9-01295
ATIP Number: A-2021-01106
ATIP Pages: 000141-000153

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division in the claims of Rayner Enrique [XXX] (the principal claimant); his spouse, [XXX] (the associate claimant), and their minor children, [XXX] and [XXX] (the minor claimants).

[2]       I have appointed [XXX] as the designated representative for his minor children, [XXX]and[XXX].

[3]       The principal claimant claims to be a citizen of Venezuela.

[4]       The associate claimant and the minor children all claim to be dual nationals of Venezuela and Colombia.

[5]       All of the claimants are seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

DETERMINATION

[6]       I find that [XXX] is a Convention refugee pursuant to section 96 of IRPA as he has established a serious possibility of persecution in Venezuela due to his political opinion.

[7]       I find that [XXX] and [XXX] are not Convention refugees under section 96 nor persons in need of protection under section 97(1) of IRPA because although they have established a serious possibility of persecution in Venezuela due to their political opinion, they have not established a claim against Colombia, where they hold nationality.

ALLEGATIONS

[8]       The claimants’ allegations were set out in their Basis of Claim forms[2] and oral testimony. To summarize, the claimants fear persecution from Venezuelan authorities due to their political opinion.

[9]       All of the claimants were born in Venezuela and are citizens of Venezuela. The associate claimant and the minor claimants also obtained Colombian citizenship through the Colombian consulate while living in Venezuela. They held a right to Colombian citizenship because the associate claimant’s parents were dual nationals of Venezuela and Colombia.

[10]     In 2005, the associate claimant founded a [XXX] and became its president. From 2007 onwards, the principal claimant also worked there as the company’s [XXX] and [XXX]. The company distributed [XXX] for the [XXX] Venezuelan companies [XXX] and [XXX].

[11]     Since 2012, the adult claimants have been active members and supporters of Primero Justicia, an opposition political party in Venezuela. In [XXX] 2017, the adult claimants attended a large protest against the decision of the Supreme Tribunal of Justice to dissolve the opposition­ led National Assembly. The next day, a plain-clothes police officer named [XXX] overhead the principal claimant discussing the protest with a customer in his store. He subsequently returned with 12 officers, arrested the principal claimant, and seized the store’s merchandise.

[12]     Police interrogated the principal claimant about his participation in the protest. They released him after he agreed to pay a bribe of $[XXX] worth of [XXX]. In [XXX] and [XXX] 2017, COBIS twice returned to the claimants’ store demanding bribes. The second time, the principal claimant refused and filed a complaint about COBIS with the Attorney General’s Office.

[13]     The claimants started having technical problems with an [XXX] which they used to do business with [XXX] The principal claimant made inquiries and the president of [XXX] told him their access was intentionally suspended because the principal claimant had been identified by COBIS as a government opponent.

[14]     In [XXX] 2018, COBIS and four other men stopped all of the claimants in a parking lot when they were leaving a restaurant. COBIS told the principal claimant he was an “enemy of the homeland” who needed to be careful. The principal claimant filed another complaint about COBIS with the Attorney General’s Office.

[15]     On [XXX] 2018, the Bolivarian National Intelligence Service (SEBIN) summoned the principal claimant to an interview, claiming they wanted to gather more information about his two complaints against COBIS. A SEBIN officer asked the principal claimant about his travel history and business activities and accused him of being an American spy. He gave the principal claimant a summons for a second interview about “crimes against public order and against the nation’s independence and security.”[3] The claimants fled Venezuela on [XXX] 2018.

Identity

[16]     The claimants’ identities have been established on a balance of probabilities by copies of their Venezuelan passports.[4]

Credibility

[17]     I find the claimants to be credible. They provided straightforward and spontaneous testimony. There were no relevant inconsistencies within their testimony or between their testimony and the documentary evidence before me. The claimants also provided a number of documents to support their claim, including:

  • The two complaints made by the principal claimant to the Attorney General’s Office in [XXX] 2017 and [XXX] 2018;
  • Invoices related to the claimants’ business activities with [XXX];
  • The two summons from SEBIN issued to the principal claimant;
  • The adult claimants’ Primero Justicia membership cards.

[18]     These documents were consistent with the claimants’ allegations and I have no reason to doubt their authenticity. I thus accept the claimants’ evidence as credible and I believe their allegations.

Countries of Reference: Principal Claimant

[19]     I find on a balance of probabilities that the principal claimant is a national of only Venezuela and that he does not have a right to citizenship in Colombia.

[20]     The principal applicant is married to a Colombian citizen and is the father of three children with Colombian citizenship. He does not currently hold any type of visa or residency permit in Colombia. He testified that when he inquired with officials at the Colombian consulate in Venezuela about how he could obtain residency or citizenship through his family relationships, he was told the process was discretionary and his chances would be “better as an investor.”

[21]     The principal claimant’s testimony accords with country condition evidence indicating that the process for him to obtain citizenship in Colombia is discretionary. The National Documentation Package (NDP) for Colombia outlines the steps for him to obtain Colombian citizenship. First, he must apply for a temporary three-year visa. The authorities who process applications for those visas retain discretion to require an interview and additional documentation before granting applications. Second, if he is successful in obtaining a temporary three-year visa, he would become permitted to apply for a five-year resident visa. Third, if he was successful in obtaining the five-year resident visa, he would become permitted to apply for Colombian citizenship.[5]

[22]     Given this evidence, I find on a balance of probabilities that the principal applicant does not have a right to citizenship in Columbia because the right is not automatic under the law.

Countries of Reference: Associate Claimants

[23]     According to sections 96 and 97 of IRPA, a claimant must establish his or her claim against each country of nationality. The claimants indicated on their Basis of Claim forms and narratives that all of the associate claimants are dual nationals of Colombia and Venezuela. They confirmed this in their oral testimony. I find on a balance of probabilities that the associate claimants are dual nationals of Colombia and Venezuela and must therefore establish their claims against both countries.

The Claim Against Venezuela

Well-Founded Fear Of Persecution

[24]     The claimants have established a well-founded fear of persecution in Venezuela.

[25]     The adult claimants are members of Primerico Justicia, an opposition party, and have demonstrated their opposition to the Venezuelan government by attending public protests. They are known to be politically opposed to the Venezuelan government by members of the police force, by the president of a [XXX] company, and by the SEBIN. Immediately before the claimants fled Venezuela, the SEBIN demonstrated an intention to investigate the principal claimant for “crimes against public order and against the nation’s independence and security.”[6] SEBIN chose to investigate the principal claimant after he complained about extortion against the [XXX] of which the associate claimant is the president. The adult claimants testified that this investigation shows that Venezuelan authorities have singled them out for political persecution and that their entire family is now at risk.

[26]     Country condition evidence corroborates the claimants’ testimony. According to a report by Human Rights Watch, massive demonstrations against President Nicolas Maduro took place in 2017, fueled by discontent with his authoritarian practices and frustration over Venezuela’s humanitarian crisis.[7] The government responded with “widespread and systematic use of excessive force and arbitrary detentions against demonstrators,” as well as “patterns of other human rights violations, including violent house raids, torture and ill-treatment of those detained in connection with the protests.”[8]

[27]     The crackdown subsequently extended beyond the protests. The Office of the High Commissioner for Human Rights (OHCHR) has reported “since the end of July 2017, security forces, notably the intelligence services, have continued to use arbitrary and unlawful detentions as one of the main tools to intimidate and repress the political opposition or any person perceived as a threat to the [g]overnment for expressing dissent or discontent.”[9] Security forces including the SEBIN “have subjected detainees to ill-treatment and torture such as electric shocks, severe beatings, rape, suffocation with plastic bags and chemicals, mock executions and water deprivation.”[10] According to a research report prepared by the Immigration and Refugee Board of Canada, sources report that “supporters of the government see Justice First as a “right-wing group” or “coup-mongers” and an “enemy of the government.”[11]

[28]     I note that the OHCHR has documented cases of cruel, inhuman or degrading treatment of detainees’ families and the detention of children.[12] This corroborates the adult claimants’ testimony that their entire family could face persecution if returned to Venezuela.

[29]     I find the evidence before me is adequate to establish that the principal claimant became a target for investigation by SEBIN due to his political opposition to the Venezuelan government and that all of the claimants now have a well-founded fear of politically-motivated persecution from Venezuelan authorities due to their political opinion.

State Protection

[30]     I find that state protection would not be reasonably forthcoming to the claimants in this case.

[31]     A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness. The jurisprudence indicates that the test for a finding of state protection is whether the protection is adequate. It is not enough for there to be existing relevant legislative or procedural framework for protection if the police or other authorities are not able or willing to effectively implement those protective provisions.

[32]     In this case, when the principal claimant attempted to approach the Attorney General’s office for protection from a police officer who was extorting him, it resulted in SEBIN opening an investigation against the principal claimant for crimes against the state. He received no meaningful protection from the Attorney General’s office.

[33]     Country condition evidence indicates that although arbitrary detention and mistreatment of political dissidents is not legal in Venezuela, this behaviour has been condoned by the state and the state has blocked efforts to hold perpetrators accountable for it. According to the

OHCHR, efforts made by the Attorney General’s Office to identify state agents who had perpetuated human rights abuses were blocked by Venezuelan security forces – “particularly the Bolivarian National Guard.”[13] The OHCHR identified instances where evidence about abuses disappeared from case files and cases where security forces allegedly responsible for killing demonstrators were released despite judicial detention orders. The “OHCHR received information on only one case where investigations had led to the opening of the trial of the alleged perpetrators.”[14]

[34]     Given that the state is the agent of harm in this case and the country condition evidence indicates that state authorities are unwilling to protect the claimants, I find that state protection would not be reasonably forthcoming for them.

Internal Flight Alternative

[35]     I find there is no viable internal flight alternative for the claimants. Venezuelan authorities including the police and the SEBIN are the agents of harm. Venezuela has effective control over the entirety of its own state and there is no evidence before me to suggest that their desire or ability to persecute the claimants would vary from region to region. As such, I find the claimants face a serious possibility of persecution throughout Venezuela.

The Claim Against Colombia

Risk of Harm

[36]     I do not find that the associate claimant or the minor claimants face a well-founded fear of persecution or a risk to their lives, a risk of cruel and unusual punishment, or a risk of torture in Colombia.

[37]     At the hearing, the associate claimant testified she did not wish to return to Colombia because she does not know anybody there and would have difficulty financially supporting herself and her children. She also testified that Venezuelans living in Colombia face discrimination in housing and employment, and she would be readily identifiable as Venezuelan by her accent.

[38]     News articles submitted by the claimants indicate that thousands of Venezuelans have fled their country for Colombia in recent months, with approximately 800,000 Venezuelan migrants (both documented and irregular) currently living there.[15] Some Colombians have expressed xenophobia towards Venezuelans that includes verbal and physical violence, the refusal to rent Venezuelans property, and the refusal to employ Venezuelans.[16] Colombian officials, including the president of Colombia, have denounced xenophobia against Venezuelans and called for tolerance,[17] and the United Nations High Commissioner for Refugees has launched a campaign in Colombia to generate empathy towards Venezuelan migrants.[18]

[39]     Counsel submitted there is a serious possibility that xenophobic discrimination would interfere with the associate claimant’s right to obtain housing and employment in Colombia. Counsel pointed out that these rights are listed in the Universal Declaration of Human Rights and that board members should consider such international instruments when assessing persecution.

[40]     To be considered persecution, mistreatment must be sufficiently serious. To determine whether mistreatment qualifies as “serious”, I must examine: 1) what interest of the claimant might be harmed; and b) to what extent the subsistence, enjoyment, expression or exercise of that interest might be compromised. While the experiences of persons with similar profiles must be considered in determining whether ill-treatment is systemic, each case must be determined on its own facts.

[41]     I agree with counsel that the right to work and the right to housing are important interests and that in certain cases, inference with those rights can constitute persecution. However, I do not find the evidence adequate to establish that the associate claimants or the minor claimants would face a serious possibility of persecution in Colombia for the following reasons.

[42]     In the present case, neither the principal claimant nor the associate claimant indicated that they feared persecution in Colombia while preparing their Basis of Claim forms. To the contrary, they explicitly said in their narrative that they decided not to move to Colombia because they feared the principal claimant might be deported from there to Venezuela. According to their narrative,

While we were considering ways to leave Venezuela, we considered whether Colombia might be an option. […] We didn’t want to take the chance of applying for a residency permit [for the principal claimant] and waiting for months only to find out it had been refused. […] In the meantime, our lives would be in danger in Venezuela. We needed to go somewhere where we knew we would be safe, and protected against removal to Venezuela. It was clear that that [sic] this would not be the case for [the principal claimant] in Colombia, and [our] family was not willing to be separated.[19]

[43]     I sympathise with the claimants’ reluctance to go to Colombia when it was uncertain whether the principal claimant would be able to obtain legal residency there. Given that they have a well-founded fear of persecution in Venezuela, it is reasonable that they would choose not to live in Colombia to avoid the possibility of the principal claimant being deported back to Venezuela. However, there is nothing in the claimants’ narrative to indicate that they ever feared persecution within Colombia.

[44]     I have also considered the associate claimant’s personal circumstances. The associate claimant holds a [XXX] in [XXX] and successfully established a [XXX] business in Venezuela. According to the claimants’ Basis of Claim narrative, this business “thrived” until the [XXX] field became subject to a state monopoly in Venezuela.[20] Although the associate claimant and her children could be identified as Venezuelans by their accents, they also hold the benefit of Colombian citizenship. If returned to Colombia, they would not be crossing the Venezuelan land border with many irregular migrants seeking amnesty, shelter and employment while lacking citizenship status in Colombia. Although they may face xenophobic discrimination, I do not find that their ability to find housing or work would be compromised to a level that rises to persecution.

[45]     For these reasons, I find the evidence insufficient to demonstrate that the associate claimant or the minor claimants would face a serious possibility of persecution in Colombia.

CONCLUSION

[46]     I find that [XXX] is a Convention refugee and I accept his claim.

[47]     I find that [XXX] and [XXX] are not Convention refugees nor persons in need of protection and I reject their claims.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2] Exhibits 2.1, 2.2, 2.3, 2.4, and 2.5.

[3] Exhibit 4, page 88.

[4] Exhibit 1.

[5] Exhibit 5, National Documentation Package, Colombia, 31 May 2019, tab 3. 7: Requirements and procedures for a person born in another country to Colombian parents to acquire citizenship; requirements and procedures for the spouse and child of a citizen to obtain permanent residency; rights and social benefits available … Immigration and Refugee Board of Canada. 9 July 2014. COL104916.E.

[6] Exhibit 4, page 88.

[7] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.10: Crackdown on Dissent: Brutality, Torture, and Political Persecution in Venezuela. Human Rights Watch; Foro Penal. 29 November 2017.

[8] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.10: Crackdown on Dissent: Brutality, Torture, and Political Persecution in Venezuela. Human Rights Watch; Foro Penal. 29 November 2017.

[9] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.

[10] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.

[11] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 4.4: Information on the political party Justice First (Primero Justicia), including membership procedures, structure and leadership at the national level and in Maracaibo (2014-May 2016). Immigration and Refugee Board of Canada. 11 May 2016. VEN105518.E.

[12] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.

[13] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.

[14] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.

[15] Exhibit 4, page 147.

[16] Exhibit 4, page 149.

[17] Exhibit 4, page 150.

[18] Exhibit 4, page 144.

[19] Exhibit 2.1.

[20] Exhibit 2.1.

Categories
All Countries Venezuela

2020 RLLR 77

Citation: 2020 RLLR 77
Tribunal: Refugee Protection Division
Date of Decision: March 9, 2020
Panel: C. Ruthven
Counsel for the Claimant(s): Constance Nakatsu
Country: Venezuela
RPD Number: TB8-30661
Associated RPD Number(s): TB8-30706, TB8-30822, TB8-30660
ATIP Number: A-2021-00800
ATIP Pages: 000110-000123

REASONS FOR DECISION

[1]       These reasons and decision are in regards to the claims for protection made by [XXX] (principal claimant), [XXX] (youngest female claimant), [XXX] (male claimant), and [XXX] (eldest female claimant).

[2]       Each is claiming protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.[1] The panel heard the claims jointly, pursuant to Refugee Protection Division Rule 55.[2]

ALLEGATIONS

[3]       The principal claimant’s full allegations are set out in her Basis of Claim Form and related narrative,[3] including the narrative amendments.[4] The claims of the male claimant, the eldest female claimant, and the youngest female claimant each rely on the narrative of the principal claimant. In summary, the claimants fear persecution in Venezuela due to the anti-government political opinion of the three eldest claimants.

[4]       The principal claimant and the male claimant each joined the Primero Justicia political party in 2010. The eldest female claimant subsequently joined Primero Justicia in 2011. Their participation included distributing flyers in their respective neighbourhoods, and attending weekly meetings. The principal claimant and the male claimant loaned out sound equipment from their business for use by Primero Justicia at rallies and marches.

[5]       The principal claimant and the male claimant were assaulted and threatened on three occasions related to the 2012 presidential campaign. In [XXX] 2012, just prior to the official campaign start, the principal claimant and the male claimant were threatened by three chavistas on motorcycles. The principal claimant was threatened as she was pushed against a wall, and told to stop supporting Henrique Capriles Radonski. On [XXX] 2012, chavistas again attacked the principal claimant and the male claimant in Puerto Cabello. The male claimant was injured with a stick, and he required hospital treatment for an abdominal injury. Finally, the principal claimant was threatened on [XXX] 2012 at a march in Barinitas.

[6]       The principal claimant, the male claimant, and the eldest female claimant were threatened by men on motorcycles in Carabobo State on [XXX] 2013, as they were setting up sound equipment for a Henrique Capriles Radonski rally. The men physically assaulted the eldest female claimant, and they showed the principal claimant a threatening gesture.

[7]       The physical attacks escalated to include specific mention of claimant names by the attackers. On [XXX] 2013, the eldest female claimant organized an opposition rally in her neighbourhood, to coincide with International Workers’ Day. Men on motorcycles approached the eldest female claimant, and threw a tear gas canister at her while calling her name, and referencing the principal claimant. The eldest female claimant was treated for gas inhalation.

[8]       The adult male was physically assaulted on [XXX] 2014 at a march in support of Leopoldo Lopez and other opposition figures. The adult male fell to the ground unconscious. During the subsequent hospital treatment, the adult male was diagnosed with [XXX]. He was affected by the medicine shortages in Venezuela, but he was able to access [XXX] in Carabobo State.

[9]       In [XXX] 2017, national protests began to escalate. The National Guard invaded the San Diego neighbourhood where the four claimants were residing at the time. The son of the principal claimant was arrested, but his release was later secured by the principal claimant’s intervention. Her son fled to the United States of America in [XXX] 2017. In [XXX] 2018, the eldest female claimant was assaulted by colectivos, as she stood in line to buy food.

[10]     The members of the colectivos specifically asked about the principal claimant. The principal claimant was herself subsequently refused food sales in [XXX] 2018, as the principal claimant did not possess a card which showed her chavista support.

[11]     On [XXX] 2018, the eldest female claimant and the youngest female claimant departed Venezuela, and they entered the United States of America. On [XXX] 2018, the principal claimant and the male claimant departed Venezuela, and they entered the United States of America. The claimants crossed the land border into Canada on [XXX] 2018, and they each made their claims for protection.

DETERMINATION

[12]     The panel finds that the principal claimant, the male claimant, and the eldest female claimant are each Convention refugees, pursuant to section 96 of the Immigration and Refugee Protection Act, based on their anti-government political opinion.

[13]     The panel also finds that the youngest female claimant is a Convention refugee, pursuant to section 96 of the Immigration and Refugee Protection Act, based on her imputed political opinion.

ANALYSIS

Identity

[14]     The panel finds that each of the claimants has established their identity as a national of Venezuela, based on a balance of probabilities. Each claimant presented their Venezuela passport.[5] The panel finds no reason to doubt the authenticity of any of these four documents.

Credibility

[15]     The panel found the principal claimant and the eldest female claimant to be credible witnesses. Both the principal claimant and the eldest female claimant testified in straightforward manners, and there were no relevant inconsistencies in their oral testimony or contradictions between their oral testimony and the written submissions.

[16]     The panel finds that the principal claimant coherently explained the involvement of herself, her husband, and her mother in the campaigns of opposition candidates, as well as the campaigns of Primero Justicia, since approximately 2010. Similarly, the panel finds that the eldest female claimant provided detailed and spontaneous testimony about her motivation to join Primero Justicia.

[17]     The panel found that neither the principal claimant nor the eldest female claimant exaggerated or embellished their testimony, and they each provided spontaneous details about their own personal involvement in the anti-government rallies and marches in Venezuela.

[18]     Despite the above, the panel finds that there were allegations presented for these claims that were not supported by the oral and written evidence. These allegations relate specifically to the male claimant being targeted in his medical care, namely having a [XXX] refused based on his anti-government involvement in Venezuela. The panel accepts that the male claimant has suffered long-term [XXX] (now diagnosed as end-stage [XXX]), and that these [XXX] challenges require regular and ongoing [XXX] and prescription treatments. Other diagnosed medical problems for the male claimant include [XXX] and [XXX].[6]

[19]     Although the panel finds that there was sufficient medical evidence presented to support the ongoing and long-term medical challenges for the male claimant, the panel notes that limited evidence was adduced to support that the male claimant faces a risk of harm in Venezuela, related to the authorities denying him any medical treatment that is available to other citizens of Venezuela.

[20]     The male claimant testified that he attempted to obtain a [XXX] in both Italy and Venezuela. He was not successful in either country. The claimant further testified that he travelled to Caracas every two months, but that around 2015 or 2016, he was told that there was a general crisis in the health care industry, and that a [XXX] would not be available to him, due to lack of resources. The male claimant clarified in his testimony that he never received a phone call regarding the availability of a [XXX] to be [XXX] his body.

[21]     This testimony from the male claimant is in contrast to the Basis of Claim Form narrative statements provided by the principal claimant regarding an urgent trip to Caracas by the male claimant and the eldest female claimant on [XXX] 2017. The narrative statements also indicated that there was a [XXX] available for [XXX] for the male claimant, but that the [XXX] was subsequently denied to him at the Caracas hospital.[7]

[22]     The panel carefully reviewed the presented post-hearing documentation related to possible side effects of four prescriptions taken by the male claimant,[8] and the panel notes that for the past six months, family members of the male claimants have approached [XXX] of Hamilton, Ontario regarding declining [XXX] functioning, as well as increased [XXX], and increased [XXX] on the part of the male claimant.

[23]     Based on the objective medical evidence presented the panel accepts that, on a balance of probabilities, the male claimant faced [XXX] challenges during his testimony at the hearing. The medical documentation in support of these [XXX] difficulties was not presented to the panel until after the date of the hearing, so the panel is left to balance the differences in the evidence presented, namely between the Basis of Claim Form narrative statements and the testimony of the male claimant.

[24]     The panel finds insufficient reliable evidence was adduced to corroborate a specific targeting of the male claimant in Venezuela, based on his health conditions.

[25]     Despite this negative credibility inference, the panel finds that the credible testimony of the principal claimant, in conjunction with the credible testimony of the eldest female claimant, and in consideration of the supporting documents presented, have cumulatively provided sufficient evidence that the principal claimant, the male claimant, and the eldest female claimant were each long-term members of the Primera Justicia political party, and that they actively and publicly participated in anti-government rallies and marches in support of high-profile opposition candidates over the past ten years.

[26]     The credible evidence of the political participation overcomes the sole negative credibility inference.

Supporting Documents

[27]     The claimants presented fifteen photographs regarding the involvement of the principal claimant, the male claimant, and the eldest female claimant in opposition rallies and marches in Venezuela.[9] The panel finds that the principal claimant’s testimony provided spontaneous details about the background of these photographs, and as such added to the credibility of the claims made by the three eldest claimants.

[28]     In support of their claims for protection, the claimants also presented copies of their Primera Justicia membership certificates,[10] business registration documents for [XXX],[11] and medical documentation related to serious injuries sustained at protest marches and rallies in Venezuela between [XXX] 2013 and [XXX] 2018.[12] The panel finds no reason to doubt the authenticity of any of these documents. As such, they were assigned high probative value, based on their relevance to the allegations put forth by the claimants.

Subjective Fear Considerations

[29]     The panel putto the claimants at the hearing some possible subjective fear considerations, namely their failure to claim asylum during their time in the United States of America, as well as the return of the principal claimant and the male claimant to Venezuela in the two years that lead up to their decision to depart Venezuela permanently.

[30]     The male claimant testified that he travelled to Italy in [XXX] 2017, as he wanted to seek out the possibility of a [XXX] in that country. When it became obvious that to the male claimant that he would not receive a [XXX] in Italy, the male claimant returned to Venezuela.

[31]     Although the panel assigned the male claimant’s testimony reduced probative value in relation to the cognitive impairments that he has faced over the past six months (as documented by medical professionals in Canada), the panel notes that this portion of the testimony is supported by passport entry stamps and exit stamps. In conjunction with the presented medical documentation regarding [XXX], the panel accepts the male claimant’s explanation regarding his trip to Italy as being reasonable, under the circumstances.

[32]     The principal claimant provided Basis of Claim Form narrative statements which indicated that her visit to the United States of America in [XXX] 2018 was to care for her son, [XXX] as he was facing [XXX] health issues.[13] The panel acknowledges that the principal claimant returned to Venezuela before her status in the United States of America expired.

[33]     The principal claimant also testified that her son was a resident of the state of Wisconsin in [XXX] 2018. She was aware that [XXX] had made a claim for asylum one-and-a-half years prior to their arrival in [XXX] 2018, but her son had not received any response from the authorities of the United States of America, up until that point. The principal claimant further testified that she had a cousin in Canada, and that she preferred to make a claim for protection in Canada, based on what she had heard about the policies of the administration in the United States of America, especially as it related to Latin Americans (as immigrants). The panel finds these explanations to be reasonable, under the circumstances.

[34]     As such, the panel did not draw any negative inferences from the failure to claim in the United States of America, or the returns to Venezuela by the principal claimant and the male claimant in the two years before their final departure from Venezuela.

Objective Basis of the Claim

[35]     The panel finds that the overall objective evidence supports the claims for Convention refugee protection for the principal claimant, the male claimant, and the eldest female claimant, based on their anti-government political opinion. Separately, the panel also finds that the overall objective evidence supports the claim for Convention refugee protection for the youngest female claimant, based on her imputed political opinion.

Political Profile of the Three Eldest Claimants in Venezuela

[36]     The panel considered whether there was a serious risk of persecution for the principal claimant, the male claimant, and the eldest female claimant in Venezuela, particularly based on their respective political profiles, pursuant to section 96 of the Immigration and Refugee Protection Act.

[37]     The panel finds that the totality of the corroborating evidence enumerated above, in addition to the testimony of the principal claimant and the eldest female claimant, has provided sufficient evidence to support that the principal claimant, the male claimant, and the eldest female claimant have each been prominently involved in the opposition movement of Venezuela since at least 2010 (in the case of the principal claimant and the male claimant) and at least 2011 (in the case of the eldest female claimant).

[38]     The panel further finds that, on a balance of probabilities, these prominent roles would reasonably lead to the principal claimant, the male claimant, and the eldest female claimant being associated with the opposition in Venezuela, in the eyes of government groups, and government operatives and agents. The panel accepts the testimony of the principal claimant and the eldest female claimant regarding the motivation of the persons threatening them (at political rallies and in line for food) as being directly related to their support of opposition candidates, and their support for the Primero Justicia political party.

Imputed Political Opinion of the Youngest Female Claimant

[39]     Although the panel finds that the political profile of the youngest female claimant was not in itself enough to draw the attention of the authorities of Venezuela, the panel examined a possible imputed political profile for the youngest female claimant, as it related to her family relationships. The panel notes that the youngest female claimant is the adult daughter of the principal claimant and the male claimant, as well as the granddaughter of the eldest female claimant, and the younger sister of [XXX].[14]

[40]     The principal claimant testified that the youngest female claimant would be targeted upon a return to Venezuela, as the authorities specifically target family members of those individuals who are deemed to be against the government.

[41]     Although [XXX] was not present at the hearing to provide testimony in support of any of the claims for protection, the panel finds that relevant portions of his Basis of Claim Form narrative[15] were supported by the testimony of the principal claimant. The panel notes the authorities of Venezuela have previously attended the residence of the four claimants (including the youngest female claimant), in search of [XXX]. Should the youngest female claimant return to Venezuela, the panel accepts the testimony that she would be sought after in relation to her older brother, her parents, and her grandmother.

Recent Abuses at the Hands of the Security Forces and their Allies

[42]     Abuses have increased in Venezuela, as security forces and allied armed civilian militias, also known as colectivos have been deployed to violently quash protests in February 2019, the Venezuelan Human Rights group Faro Penal documented seven deaths, 107 arbitrary detentions, and 58 bullet injuries that resulted from the use of force by state security forces and colectivos that blocked aid from entering the country.[16]

[43]     The most significant human rights issues in Venezuela included extrajudicial killings by security forces, including colectivos, torture by security forces, harsh and life-threatening prison conditions; and political prisoners. The government of Venezuela took no effective action to investigate officials who committed human rights abuses, and there was impunity for such abuses.[17]

[44]     The regime in Venezuela aggressively seeks to define national identity according to its own ideology. The opposition and anyone critical of the government are denied the status of citizen. The National Electoral Council is by no means impartial, and there are reasonable doubts as to whether the published results reflect voters’ preferences. After President Madura’s razor­ thin victory, the opposition presented over two hundred substantiated allegations of electoral rule violations. There is evidence of pressure on public employees to attend campaign rallies, and freedom of association and assembly is severely restricted in practice. The vast majority of judges hold provisional or temporary office, and the autonomy and impartiality of public prosecutors is seriously affected by improper interference by political actors.[18]

Risk of Harm for All Four Claimants

[45]     The panel finds that the claimants presented sufficient evidence in the written submissions and testimony to establish that the principal claimant, the male claimant, and the eldest female claimant were each specifically targeted by the actions of the chavistas, and later by the colectivos. The criminal acts included property damage, physical assaults, and threats to their lives. The panel also finds that the preponderance of the evidence points to the youngest female claimant, now an adult, would similarly be targeted based on a perceived anti-government political opinion (in relation to her parents, her older brother, and her maternal grandmother).

[46]     The panel finds that all four claimants have established an objective basis for their respective claims, and that their fears are well-founded.

State Protection

[47]     The claimants sought police protection in relation to the physical assault against the eldest female claimant, the threatening gesture, and the property damage that occurred in Carabobo State on [XXX] 2013. The principal claimant indicated in her Basis of Claim Form narrative that she was told by the police that it was best for her to leave things as they were, and that the police were only able to provide assistance to them if the motorcycle make, and the licence plate numbers, were known to her as a declarant.[19]

[48]     The panel finds that the lack of further attempts to seek redress with the authorities of Venezuela was reasonable, under the circumstances.

[49]     Based on the venues and timings of the various threats from chavistas and colectivos on motorcycles, the panel accepts the threats of harm were directed at the principal claimant, the male claimant, and the eldest female claimant because they were actively supporting the opposition to the government of Venezuela.

[50]     For more than a decade, political power has been concentrated in a single party with an increasingly authoritarian executive exercising significant control over the legislative, judicial, citizens’ power, including the prosecutor general and ombudsman, and electoral branches of government.[20]

[51]     There were continued reports of excessive use of force by security forces in Venezuela, particularly in the repression of protests over the lack of food and medicine. There were also reports from the Attorney General’s Office that groups of armed people with the support or acquiescence of the government carried out violent actions against demonstrators.[21]

[52]     Although the vast majority of colectivos are peaceful neighbourhood groups, the opposition accuses some of being violent paramilitary wings of the ruling Socialist Party, especially in urban areas. Motorized bands have less structure, but still receive full government support.[22]

[53]     In light of the above, the panel finds that those associated with the opposition in Venezuela are at risk of harm, and as such, it would be objectively unreasonable for any of the four claimants, in their particular set of circumstances, to seek redress or protection from the authorities in Venezuela. The documentary evidence in the National Documentation Package for Venezuela is both clear and convincing, and that it rebuts the presumption of adequate state protection for the four claimants in Venezuela.

Internal Flight Alternatives

[54]     The panel considered possible internal flight alternatives for each of the four claimants in Venezuela. The state and their operatives are the agents of persecution for the four claimants. Given that the government controls the entire territory of Venezuela, and given that the colectivos operate across Venezuela, the panel finds that there is a serious possibility of persecution for each claimant throughout Venezuela, and therefore no viable internal flight alternatives exist for any of the four claimants in any part of Venezuela.

CONCLUSION

[55]     For the foregoing reasons, the panel finds that there is a serious possibility that each of the four claimants face persecution in Venezuela, pursuant to section 96 of the Immigration and Refugee Protection Act.

[56]     The panel concludes that the principal claimant, the male claimant, and the eldest female claimant are each Convention refugees based on their political opinion. In addition, the panel finds that the youngest female claimant is a Convention refugee based on her imputed political opinion.

[57]     The panel therefore accepts all four claims.


[1] X

[2] X

[3] X

[4] X

[5] Exhibit 1.

[6] Exhibit 21 (post-hearing).

[7] Exhibit 2.

[8] Exhibit 20 (post-hearing).

[9] Exhibit 17.

[10] Exhibit 16.

[11] Exhibit 16.

[12] Exhibit 15.

[13] Exhibit 2 and Exhibit 18.

[14] Exhibit 2, Exhibit 3, Exhibit 4, and Exhibit 6.

[15] Exhibit 6.

[16] Exhibit 7, NDP for Venezuela (30 August 2019), item 1.4.

[17] Exhibit 7, NDP for Venezuela (30 August 2019), item 2.1.

[18] Exhibit 7, NDP for Venezuela (30 August 2019), item 4.12. 

[19] Exhibit 2 and Exhibit 18.

[20] Exhibit 7, NDP for Venezuela (30 August 2019), item 2.1.

[21] Exhibit 7, NDP for Venezuela (30 August 2019), item 2.2.

[22] Exhibit 7, NDP for Venezuela (30 August 2019), item 4.12.

Categories
All Countries Venezuela

2020 RLLR 13

Citation: 2020 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: February 18, 2020
Panel: F. Mortazavi 
Counsel for the Claimant(s): Vino Shanmuganathan
Country: Venezuela
RPD Number: TB8-00045
ATIP Number: A-2021-00540
ATIP Pages: 000090-000096


REASONS FOR DECISION

[1]       [XXX], the claimant, is a citizen of Venezuela. She is claiming refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (the IRPA).1

NEXUS

[2]       The claim is based on political opinion, namely, political dissident.

ALLEGATIONS

[3]       The claimant’s allegations are detailed in her Basis of Claim Form (BOC) narrative,2 and amended narratives.3

[4]       In summary, she alleged that she is a registered member of the Primera Justicia Party (PJC) of Venezuela. She had attended protest against the government of Nicolas Maduro calling for social and financial reforms.

[5]       The claimant stated that the PJC believed in democracy, social justice, solidarity, the rescue of human dignity, equal opportunities, and progress. At the time, the claimant supported Juan Pablo Guanipa for a gubernatorial election, who later became the first vice president of the National Assembly.

[6]       The claimant alleged that on [XXX], 2017, she was arrested, along with other protesters at a peaceful protest, detained, and interrogated by the Bolivarian National Police. Subsequently, she was further interrogated in [XXX] 2017, and threatened to pay extortion money to have her case dropped.

[7]       On [XXX], 2017, the claimant, who was in possession of a visitor visa for Canada, fled the country alone, while her husband remained behind, as he did not have a valid Canadian visitors visa. At a later date, unable to obtain a Canadian visa, her husband, who was also harassed, threatened, and subjected to extortion by the authorities after obtaining his passport through a bribe of an official, fled to Chile.

[8]       On December 12, 2017, the claimant sought asylum in Canada. The claimant alleged that she fears the government authorities and the Tupamaros, an armed group associated with the government, if she were to return to Venezuela.

DETERMINATION

[9]       The panel finds that the claimant is a Convention refugee for the following reasons.

ANALYSIS

Identity

[10]     The panel finds the claimant, on a balance of probabilities, is a citizen of Venezuela based on the copies of her original passport.4

[11]     The panel is satisfied that the claimant has no permanent status, either residency or citizenship, beside Venezuela.

Credibility

[12]     Notwithstanding the issue of delay in claiming asylum in Canada, the panel finds that the claimant’s evidence is internally consistent, inherently plausible, and is not contradicted by documentary evidence on country conditions in Venezuela and the personal documents submitted by the claimant. The panel therefore, finds her evidence credible, and that the allegations which form the basis of her subjective fear are, on a balance of probabilities, true.

Objective evidence

[13]     Having considered the totality of the evidence and counsel’s submissions, the panel finds that there is sufficient credible or trustworthy objective evidence before it to support the claimant’s subjective fear.

[14]     The documentary evidence with respect to the current political climate in Venezuela, including freedom to protest and treatment of protesters at the hands of the authorities, indicated the following:

Venezuela is formally a multiparty, constitutional republic, but for more than a decade, political power has been concentrated in a single party with an increasingly authoritarian executive exercising significant control over the legislative, judicial, citizens’ power (which includes the prosecutor general and ombudsman), and electoral branches of government. On May 20, the government organized snap presidential elections that were neither free nor fair for the 2019- 25 presidential term. Nicolas Maduro was re-elected through this deeply flawed political process, which much of the opposition boycotted and the international community condemned.

[… ]

Human rights issues included extrajudicial killings by security forces, including colectivos (government-sponsored armed groups); torture by security forces; harsh and life-threatening prison conditions; and political prisoners. The government restricted free expression and the press by routinely blocking signals, and interfering with the operations of, or shutting down, privately owned television, radio, and other media outlets. Libel, incitement, and inaccurate reporting were subject to criminal sanctions. The government used violence to repress peaceful demonstrations. Other issues included restrictions on political participation in the form of presidential elections in May that were not free or fair; pervasive corruption and impunity among all security forces and in other national and state government offices, including at the highest levels…

[…]

… There were continued reports of police abuse and involvement in crime, including illegal and arbitrary detentions, extrajudicial killings, kidnappings, and the excessive use of force. Impunity remained a serious problem in the security forces.

[… ]

In some cases government authorities searched homes without judicial or other appropriate authorization, seized property without due process, or interfered in personal communications. [Special Actions Force] and other security forces regularly conducted indiscriminate household raids.5

[15]     Amnesty International reports that:

Anti-government protesters and some opposition leaders were accused by the government of being a threat to national security.

[… ]

The right to peaceful assembly was not guaranteed. According to official data, at least 120 people were killed and more than 1,177 wounded – including demonstrators, members of the security forces and bystanders – during these mass demonstrations.

There were also reports from the Attorney General’s Office that groups of armed people with the support or acquiescence of the government carried out violent actions against demonstrators.

[…]

Hundreds of people reported that they were arbitrarily detained during the protests that took place between April and July. Many were denied access to medical care or a lawyer of their choice and in many cases were subjected to military tribunals. There was a notable increase in the use of military justice to try civilians.6

[16]     With respect to anti government Venezuelans returning from abroad, the documentary evidence indicates the following:

… failed refugee claimants who return to Venezuela may face, among other things, the following consequences: not being able to find employment, having their passport cancelled or being imprisoned [translation] “without a regular trial, since the judicial system is subordinate to the executive power”… According to the same source, a person who opposes the government [translation] “runs the risk of being imprisoned and even disappearing”…

[…]

According to the same source, it is very difficult to obtain a passport from abroad, and the national identity card (cédula), which is required “for everything,” including obtaining a passport, is available only in Venezuela … Similarly, the coordinator from La voz de la diaspora venezolana indicated that the government does not allow Venezuelans in the diaspora to obtain identity documents, including national identity cards and passports…7 [footnotes omitted]

[17]     In view of the above, the panel finds that the claimant has established that there is more than a mere possibility of persecution should she return to Venezuela, on the grounds of her political opinion.

State protection

[18]     The claimant must establish, through clear and convincing evidence, that the state would be unwilling or unable to provide adequate protection if she were to return to her home country, Venezuela.

[19]     The panel has taken into consideration the claimant’s profile at the present time, an opponent of the government. The panel has taken into consideration that the claimant fears the Venezuelan authorities. In view of the above noted objective documentary evidence, the panel finds that there is clear and convincing evidence that state protection would be unavailable, as the state is the agent of persecution, if she were to return to Venezuela at the time of the hearing. The panel concludes that the presumption of state protection has been rebutted in this particular circumstance.

Internal flight alternative

[20]     As the state is an agent of persecution, and the state authorities are in control throughout the country, there is more than a mere possibility of persecution in all parts of Venezuela. Thus, a viable internal flight alternative is currently not available to the claimant within Venezuela.

CONCLUSION

[21]     The panel concludes that [XXX] is a Convention refugee. Thus, the panel need not analyze the refugee protection claim under section 97 of the IRPA.

[22]     The panel therefore accepts her claim.

(signed)           F. Mortazavi

February 18, 2020

1 The Immigration and Refugee Protection Act, S.C.2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC).
3 Exhibit 6, Amended Narrative received February 7, 2020; and Exhibit 7, Personal Disclosure received February 3, 2020, at pp. 1-2.
4 Exhibit 1, Package of Information from the Referring CBSA/CIC, Certified True Copy of Passport.
5 Exhibit 3, National Documentation Package (NDP) for Venezuela (March 29, 2019), item 2. 1.
6 Ibid., item 2.2.
7 Ibid., item 14.3.

Categories
All Countries Venezuela

2020 RLLR 1

Citation: 2020 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: November 3, 2020
Panel: Josée Bouchard
Counsel for the Claimant(s): Amedeo Clivia, Maritza Sierra Vasquez
Country: Venezuela
RPD Number: TB9-12556
Associated RPD Number(s): TB9-12599, TB9-30737
ATIP Number: A-2021-00540
ATIP Pages: 000001-000014


REASONS FOR DECISION

[1]       [XXX] (the principal claimant), her daughter [XXX] (the minor claimant) and her brother [XXX] (the associate claimant) are citizens of Venezuela and claim refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The claimants’ allegations are fully set out in their basis of claim (BOC) forms.2

[3]       To summarize, the principal claimant and associate claimant allege a serious possibility of persecution at the hands of the Venezuelan authorities and “colectivos” because of their political opinion, namely their anti-government affiliation and activities.

[4]       The associate claimant and minor claimant allege a serious possibility of persecution at the hands of the Venezuelan authorities and “colectivos” because of their membership in a particular social group, namely their familial relationship as the brother and daughter, respectively, of the principal claimant.

Designated Representative

[5]       The principal claimant was appointed as the Designated Representative for the minor claimant. She provided a special power of attorney signed by the minor claimant’s father on [XXX] 20203 giving her the power to take the minor claimant to Canada.

DETERMINATION

[6]       The claimants are Convention refugees, as they have demonstrated a serious possibility of persecution in Venezuela on Convention grounds by virtue of their political opinion, namely their anti-government affiliation and activities, or their membership in a particular social group, namely the associate and minor claimants’ familial relationship as the brother and daughter respectively of the principal claimant.

Identity

[7]       The claimants’ personal identities as citizens of Venezuela have been established by the testimonies of the principal and associate claimants and the supporting documents, namely the principal, associate and minor claimants’ valid passports issued by the government of Venezuela.4

[8]       I find on a balance of probabilities that personal identity and country of reference have been established.

ANALYSIS

Credibility

[9]       In terms of the principal and associate claimants’ general credibility, I have found them to be credible witnesses and I therefore believe what the claimants have alleged in their oral testimonies and their basis of claim forms. Their evidence was detailed and consistent, both internally and with their documentation. Throughout the hearing, the principal and associate claimants were articulate, responsive, and forthright. They were able to elaborate on their narratives and gave detailed explanations to the questions. Their claims were well­ supported, and I noted no material inconsistencies or omissions such that the presumption of truthfulness could be rebutted.

[10]     I turn now to the findings as they relate to the principal and minor claimants.

The principal claimant and the minor claimant

[11]     Based on the credible testimonies and overall evidence, I make the following findings of fact as they relate to the principal claimant and the minor claimant:

a. The principal claimant is a member of the political party Conciencia de Pais, a political party that is in opposition to the regime. She participated in the party’s monthly meetings of professionals and participated in the logistics to prepare demonstrations, such as preparing pamphlets and placards. The principal claimant testified that the regime knew of her membership in the political party Conciencia de Pais.

b. The principal claimant is a [XXX] by profession. From [XXX] 2000 to [XXX] 2018, the principal claimant worked for the [XXX], which is a governmental organization. She provided documentary evidence in support of her claim that she worked for that organization. She was, for most of her tenure there, the [XXX]. Beginning in 2013, a new director and strong sympathizer with the regime was appointed as the head of the organization. She made it mandatory for employees to attend political meetings, marches, and events in support of the regime.

c. The principal claimant’s political opinion was known within the organization she worked for. The principal claimant was harassed and threatened by colleagues and the director for refusing to attend events and demonstrations in support of the regime. The principal claimant testified that there were lists of those who refused to participate. When the principal claimant refused to participate, she was called miserable; someone who is against the regime. She testified that she was perceived as a traitor to the regime.

d. The principal claimant also had disagreements with the director. She testified that she refused to approve renovations in her laboratory because in her view the renovations were unsafe and used as a money laundering scheme. The director proceeded without her approval.

e. While on a medical leave, there was a theft at the principal claimant’s workplace: a chair, a box with supplies and laboratory equipment were stolen. She later found out that she faced criminal charges of “unlawful embezzlement” for the theft. She testified that this was done because of her anti-government political opinion and refusal to cooperate with the director in the renovation that she characterised as money laundering.

f. As a result of the charges, the principal claimant required medical attention for stress. Her physician recommended a change of position to one with less supervisory responsibilities. Consequently, the principal claimant moved to another department as [XXX]. She testified that even with that change, the director and colleagues continued to harass her.

g. The principal claimant finally resigned from the [XXX] to work for a private company. Her responsibilities included [XXX]. She required approval from the government before [XXX] and the government or her former director refused or delayed such approvals.

h. The principal claimant attended several preliminary hearings in her legal proceeding, including a hearing on [XXX] 2018 when the judge dismissed the charges against her for lack of evidence. The principal claimant testified that the judge was immediately removed before signing the decision.

i. On [XXX] 2019, while the principal claimant was leaving her house with her daughter, two men on motorcycles stopped and hit her window with firearms. Their heads were covered, and they said, “prepare yourself for what is coming”. The principal claimant, with the minor claimant, fled to her parent’s house and remained there until she left Venezuela. The principal claimant did not go to the police because she had been trying to get justice for three years and none was forthcoming.

j. The principal claimant left for Canada on [XXX] 2019.

k. The principal claimant filed a statement from her parents dated [XXX] 2019 indicating that that they had gone to her apartment to recover documents and the principal claimant was still receiving threats through phone calls to her home. The principal claimants’ parents stated that they remained indoors and were very anxious.

l. The principal claimant also filed a lettedated [XXX] 2019, from the friend who looked after her apartment in Venezuela. The friend confirmed that she often heard calls while in the principal claimant’s apartment but found it unwise to answer.

m. On [XXX] 2019 the Court of Appeal of the Criminal Judicial Circuit of the Metropolitan Area of Caracas (Venezuelan Appellate Court) dismissed the charges against the principal claimant due to lateness in filing the appeal. The principal claimant testified that she remains fearful of returning to Venezuela. The principal claimant also fears for her daughter as she believes she is in danger because of her. The principal claimant testified that her daughter is at risk of being kidnapped as a means of revenge from the regime. The principal claimant believes that if she returns to Venezuela, she will be immediately detained at the border and charged. She testified that the regime does not forgive.

[12]     I find that the principal claimant is seen by Venezuelan authorities as opposing the regime and she faces danger because of it. I find that, because of her familial relationship with the principal claimant, the minor claimant also faces danger from the authorities and “colectivos”. She was a victim in the [XXX] 2019 attack and the fact that she is the daughter of the principal claimant, who is wanted by the regime, puts her at an increased risk of violence and kidnapping as a means of retaliation against the principal claimant.

[13]     I turn now to the associate claimant.

The associate claimant

[14]     Based on the credible testimonies and overall evidence, I make the following findings of fact as they relate to the associate claimant:

a. The associate claimant was an active participant in anti-government activities starting in 2004 when he was a university student. He was part of the group that submitted the collection of signatures to request a referendum against Hugo Chavez Frias. He received threats through phone calls as a result.

b. The associate claimant completed a bachelor’s degree in [XXX] and a master’s degree at the [XXX]. Despite his level of education, the associate claimant had difficulty finding employment in Venezuela. When he found employment, it was below his level of education and knowledge and in a different area of expertise than his degrees. Employers tried to force him to attend marches in support of the regime. When he refused, he was terminated. At his last employment in Venezuela, the associate claimant believes that his employer was making lists and taking pictures of people who refused to attend events in support of the regime. He believes that this information was shared with the “colectivos”.

c. In 2017, the associate claimant found employment in Buenos Aires, Argentina. He worked for 2 years, until his contract ended. After two years, he returned to Venezuela. Upon his return, the associate claimant was stopped and detained by the Venezuelan national guard for 9 hours because he was considered his sister’ s accomplice. The officers hit him with weapons, took his clothes out of his luggage and took gifts he brought back. After his release, while still in Venezuela, the associate claimant felt he was being followed.

d. Between [XXX] 2019 and [XXX] 2019, the associate claimant was confronted twice by men on motorcycles. The last confrontation resulted in the associate claimant being brutally beaten. One of the six assailants took a revolver and put it in his mouth, saying that the next time he was a dead man, and to tell his sister to return to Venezuela. The associate claimant left Venezuela a few weeks later for Canada.

[15]     I find that the associate claimant is seen as a political dissident and is being targeted as a result. I also find that the associate claimant is seen as an accomplice to the principal claimant’ s actions and he is being targeted as a result.

Documentary evidence

[16]     The claimants also provided documents in support of their claims, including:

a. A psychological report dated [XXX] 2016 and made contemporaneously to the events, showing the hardship that the charges of embezzlement caused to the principal claimant.5

b. Attestation that the principal claimant is a member of the Conciencia de Pai, an anti-government political party.6

c. Documents relating to the principal claimant’ s employment in Venezuela supporting her claim that she worked for the [XXX] a governmental organization.7

d. Excerpts from court documents and decisions relating to the legal proceeding against the principal claimant. The documents include the decision of the Venezuelan Appellate Court of [XXX] 2019 dismissing the charges against the principal claimant. The documents support the claim that the principal claimant was unjustly charged of the crime of “unlawful embezzlement” in Venezuela.8

e. A report from the principal claimant’s lawyer in Venezuela providing the lawyer’s position on the proceedings against her.9

f. A 2019 medical report written by a psychologist in Ontario supporting the principal claimant’s claim that she still suffers from serious psychological conditions because of what happened in Venezuela.10

g. Statements by friends and family members supporting the claims that the principal and associate claimants were persecuted in Venezuela and are still at risk.11

[17]     There is no reason to cast any doubt on the veracity of these documents and as such I place great weight on these documents to support the claimants’ allegations and overall claims.

Nexus

[18]     Based on the above facts, I find that, because of their refusal to support the regime, the principal and associate claimants were the victims of physical and emotional abuse by the authorities and those acting for them. As such, I find that both the principal claimant and associate claimant have a nexus to the Convention by virtue of their political opinion.

[19]     I also find that the minor claimant and the associate claimant have a nexus to the Convention as family members of the principal claimant. They were both attacked because of their relationship with the principal claimant. As such I find that both the associate claimant and minor claimant have a nexus to the Convention by virtue of their membership in a particular social group.

Subjective fear

[20]     The principal claimant was harassed through degrading comments from the director of her former employer, a governmental organization, because she refused to participate in the regime’s activities. She was persecuted through the laying of false charges against her, which remained unresolved for several years. This culminated in the attack on her and her daughter in [XXX] 2019 when she was in her car leaving her house.

[21]     The principal claimant fled to her parents’ house on [XXX] 2019 and remained there until she left with the minor claimant for Canada the next month. She provided testimony that even after her departure from Venezuela, the authorities or “colectivos” mandated by the authorities were still looking for her. Her brother’s detention by the national guard when he returned from Argentina and the attacks on him between [XXX] 2019 and [XXX] 2019 are further evidence of that.

[22]     I find that the Venezuelan Appellate Court’s dismissal of the principal claimant’s charges against her does not diminish her subjective fear. The use of the penal system against her was one of several forms of persecution she experienced due to her anti-government political opinion. It does not mean that the government will not seek other ways to repress the principal claimant, such as detaining her upon entry into Venezuela or employing the “colectivos” to threaten and harm her as they have done in the past.

[23]     The minor claimant also experienced an attack by armed masked motorcyclists while in the car with the principal claimant. She is at risk largely for the same reasons as the principal claimant and could be targeted by the government or those acting for the government as reprisal aimed toward the principal claimant.

[24]     The associate claimant was detained and interrogated because of his relation to his sister. He was called an accomplice of someone who has fled Venezuela. He was forced to flee after two brutal attacks by unknown assailants, assumed to be part of the “colectivos”, between [XXX] 2019 and [XXX] 2019. During the last attack he received death threats while a revolver was placed in his mouth. He fled to Canada a few weeks later.

[25]     I find that the claimants’ subjective fear is established by their credible testimonies and I believe what they have alleged, on a balance of probabilities.

Objective Basis

Country documentation

[26]     The objective country reports are consistent with the claimants’ evidence about the violence suffered by dissidents of the regime in Venezuela.

[27]     The National Documentation Package (NDP) for Venezuela, dated September 30, 2020, refers to the Human Rights Watch, World Report 2016: Events of 201512, which states as follows:

[u]nder the leadership of President Hugo Chavez and now President Nicolas Madura, the accumulation of power in the executive branch and erosion of human rights guarantees have enabled the government to intimidate, censor, and prosecute its critics, leading to increasing levels of self-censorship.

[28]     Freedom House, in Venezuela, Freedom in the World 202013, notes that “the authorities have closed off virtually all channels of political dissent, restricting civil liberties and prosecuting perceived opponents without regard for due process.”

[29]     The United Nations Human Rights Council, in its August 23, 2016 report prepared by the Office of the United Nations High Commissioner for Human Rights14 also notes that “fundamental guarantees for the exercise of freedom of expression and the right to freedom of opinion have been eroded, with an increase in attacks, censorship, arbitrary detentions, police surveillance, arbitrary interception of communications and abuse of power by State authorities”.

[30]     Having been the subject of false charges, the principal claimant testified that she could again be subjected to false charges if she were to return to Venezuela. The United States, Department of State, in its Country Reports on Human Rights Practices for 2019, remarks on the practice of making false charges against political dissidents in Venezuela. It talks about corruption and political influence throughout the justice system. Reports from the International Commission of Jurists states that as many as 85 percent of all judges had provisional appointments and were subject to removal at will by the judicial committee. Provisional and temporary judges, who legally have the same rights and authorities as permanent judges, allegedly were subjected to political influence to make pro regime determinations.15

[31]     The May 17, 2017 Response to Information issued by the Immigration and Refugee Board of Canada discusses the influence of “colectivos” in Venezuela. It notes that “many of the country’s “colectivos” are becoming criminalized and violent, extorting the communities they often claim to protect […] the “colectivos” have grown in power and influence, and in many cases have become linked to organized crime and have evolved into “partly criminal organizations”. It further states that “the “colectivos” have been supplied with weapons from the government and they have received training in urban warfare […] They act as enforcers in the barrios (neighbourhoods) and in general act to intimidate the population to discourage them from doing anything the government would dislike”.16

[32]     The December 19, 2017 Response to Information Request issued by the Immigration and Refugee Board of Canada supports the claimants’ claims that employees who refuse to attend activities in support of the regime are punished for such refusals. It states that “[t]here is no rule of law in Venezuela [ … ] there is little recourse for someone who refuses to participate in a rally during the election period [… ] if an individual works for a state enterprise and refuses to participate in a rally when the employer wants them to join, they will be accused of siding with the opposition [… ] it is rare that individuals will contact the police willingly to file a complaint because the police m Venezuela have a bad reputation and are known to commit robberies themselves”.17

[33]     Country documentation also suggests that family members of opponents of the regime are at risk. The Office of the United High Commissioner for Human Rights observed that “persecution had extended to the families of opposition members, social activists or human rights defenders. Family members have been subjected to surveillance, threats, intimidation, and reprisals, solely on the basis of their family ties.”18

[34]     As the claimants have established their subjective fear and an objective basis for that fear, I find that they have established a well-founded fear of persecution.

State Protection

[35]     When making a refugee claim, a claimant must establish, on a balance of probabilities, that adequate state protection is not available. There is a presumption that state protection is available, and the onus is on the claimant to provide dear and convincing evidence to rebut such protection. A claimant is required to approach the state for protection if protection might reasonably be forthcoming or, alternatively, if it is objectively reasonable for the claimant to have sought protection. The evidence that state protection is not adequate must be reliable and probative. It must also satisfy the panel, on a balance of probabilities, that state protection is inadequate.

[36]     In this case, the agents of persecution are the state and state sanctioned “colectivos”. The persecution the claimants would face should they return to Venezuela is at the hands of the authorities. Accordingly, I find there is no state protection available to the claimants.

Internal Flight Alternative

[37]     I have also considered whether a viable internal flight alternative exists for the claimants. The principal and associate claimants both testified that their employers were making lists of political dissidents. As a result, their names would have been included on those lists. The associate claimant was identified at the border as the brother of the principal claimant and he was detained as a result. I find on a balance of probabilities that both the associate and principal claimants are on lists of individuals known to be opponents of the regime and that the authorities have access to those lists. In addition, the evidence reviewed above confirms that the agent of persecution is the state and the persecution is nationwide. I find that there is a serious possibility of persecution for the claimants throughout Venezuela and therefore find that there is no viable internal flight alternative for them.

CONCLUSION

[38]     Based on the totality of the evidence, I find all three claimants to be Convention refugees pursuant to s. 96 of IRPA. The principal claimant and associate claimant have demonstrated a serious possibility of persecution at the hands of the Venezuelan authorities and “colectivos” because of their political opinion, namely anti-government affiliation and activities. The minor claimant and associate claimant have demonstrated a serious possibility of persecution at the hands of the Venezuelan authorities and “colectivos” because of their membership in a particular social group, namely their familial relationship as the daughter and brother, respectively, of the principal claimant. I accept their claims.

(signed)           Josée Bouchard

November 3, 2020

1 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended.
2 Exhibits 2.1, 2.2 and 2.3.
3 Exhibit 5.3.
4 Exhibit 1.
5 Exhibit 5.1.
6 Exhibit 5.1.
7 Exhibit 5.1. The Venezuelan name of the institute is [XXX].
8 Exhibits 5.1 and 5.3.
9 Exhibit 5.1.
10 Exhibit 5.1.
11 Exhibits 5.2, 6.1 and 6.2.
12 Exhibit 3, item 4.6.
13 Exhibit 3, item 2.4.
14 Exhibit 3, item 2.8.
15 Exhibit 3, item 2.1.
16 Exhibit 3, item 4.16,
17 Exhibit 3, item 4.6
18 Exhibit 3, item 2.9.

Categories
All Countries Venezuela

2019 RLLR 120

Citation: 2019 RLLR 120
Tribunal: Refugee Protection Division
Date of Decision: October 16, 2019
Panel: R. Andrachuk
Counsel for the Claimant(s): Maureen Silcoff
Country: Venezuela
RPD Number: TB7-22939
ATIP Number: A-2021-00256
ATIP Pages: 000004-000008


DECISION

[1]       MEMBER: Mr. [XXX], I have considered all your evidence, your documentary evidence and your evidence and I am ready to render my decision orally.

[2]       You, Mr. [XXX], claim to be a citizen on Venezuela and you seek refugee protection pursuant to Sections 96 and Section 97 (1) of the Immigration and Refugee Protection Act.

[3]       And, in considering your claim for protection, I have considered the Chairperson’s Guidelines, Guideline Number 9, on proceeding before the IRB involving sexual orientation and gender identity and expression.

[4]       In regard to your identity as a citizen of Venezuela, I find that I am satisfied that you are a citizen of Venezuela and I am most satisfied with your personal identity based on the certified copy of your passport the original of which is being held by the CBSA.

[5]       The details of your allegations appear in your Basis of Claim Form and in your oral testimony. The main allegations are that you are afraid to return to your country of nationality Venezuela because you fear persecution based on your sexual orientation of being a homosexual.

[6]       You claim that you are a gay and you’ve known of your sexual orientation, you’ve known that you were different from childhood and knew about your sexual orientation from above the age of 13.

[7]       You didn’t appear to have experienced serious persecution, discrimination or persecution in Venezuela basically because you didn’t live openly as a gay man.

[8]       The only people that you came out to were apparently at the age of 15 when you admitted that you are a gay too, two of your best friends who were also gay and a year before coming to Canada you told your mother about your sexual orientation.

[9]       However, many people suspected that you are a gay because of the way you acted first as a child playing with girls mainly and later on for a variety of reasons they suspected that you were not heterosexual and you experienced a lot of verbal harassment.

[10]     However, you were able to attend school and complete university and there were no physical attacks on you except once in grade 6.

[11]     However, when you had a relationship with your boyfriend [XXX] which began when you were 17 and which lasted until you came to Canada there were two occasions when you were stopped or when you were accosted by police because in the first occasion you were kissing in the car and the police basically extorted a camera and a computer from you for releasing you. Otherwise, they would have caused you problems because of public demonstration of sexual behaviour or alleged public demonstrations of sexual behaviour and there was a second time when the policemen also accosted you and extorted money from you.

[12]     Since coming to Canada you have come out of the closet and lived openly as a gay man. You believe that if you return to Venezuela or you fear that if you return to Venezuela that you will face a serious possibility of persecution because of your sexual orientation and if you were to live there openly as a gay man.

[13]     My determination is that you are a Convention refugee for the following reasons:

[14]     In regard to credibility I find that your testimony was internally consistent with the other evidence that you presented, in particular the documentary evidence that you presented as well is also consistent with the documentary evidence and country conditions.

[15]     In fact, your homosexual orientation and the rest of your allegation are corroborated by documents in Exhibit 4 which you provided in support of your claim and I have no reason to discount them, as well as you presented a persuasive psychological report in Exhibit 6.

[16]     You also presented evidence from your boyfriend, your former boyfriend in Venezuela, and also letters from your current boyfriend in Canada, [XXX] (ph). I note that [XXX] (ph) was listed as a witness and appeared here today ready to testify on your behalf.

[17]     I therefore find that you are a credible witness and I find that you have established that you are a gay and I find on the balance of probabilities the rest of your allegations are also true.

[18]     I also find that you have established that you continue to, that live a gay lifestyle in Canada and that you are involved in LGBTQ activities. The documentary evidence before me and country conditions establish that Venezuela is a seriously dangerous place for LGBTQ persons.

[19]     I note particularly the RIR from 2014 which is reprinted in the Exhibit, in the current NDP Package in Exhibit 3, referenced in Exhibit 3.

[20]     I did note one concern which is the delay in claiming but I accept your explanation as to why you didn’t make an immediate refugee claim when you came to Canada.

[21]     For you to be found a refugee you must demonstrate that there is a serious possibility of persecution if you return to a country of origin as well as that there is no, that you wouldn’t receive adequate State protection there.

[22]     In considering your prospective return to Venezuela, I have taken into consider your personal profile and your particular situation at the present time, also taking into consideration the objective evidence regarding the current situation in Venezuela particularly for homosexual men in Exhibit 3 which is the National Documentation Package, I note that Tabs 2.1, 2.4, 2.8, 6.1 and 6.2, I find that your allegations are consistent with the objective evidence on the file which confirms that there is a violence and discrimination against the LGBTQ community in Venezuela, and that members of sexual minorities in Venezuela are subject to social stigma, prejudice, acts of violence, discrimination, exclusion, threats and ill treatment.

[23]     They are also subject to discrimination when they seek healthcare in the field of employment and in public places.

[24]     Although I do note that there is evidence that there is certain gay infrastructure in Venezuela; however, the objective evidence also indicates that there is no general openness about demonstrating a person’s sexual orientation in public if that person is homosexual.

[25]     I also note that homosexuality is not illegal in Venezuela. However, there is no specific law which protects against crimes based on sexual orientation or sexual identity although everyone according to the law is to be treated equally no matter what their sexual identity.

[26]     There is, as I said equality before the law for all persons and the law prohibits discrimination based on sex or social condition, but the law does not explicitly prohibit discrimination based on sexual orientation or gender identity.

[27]     And, there is evidence that the Supreme Court ruling in Venezuela states that no individual may be discriminated against because of sexual orientation has rarely been enforced.

[28]     Considering the entirety of the evidence I find that the treatments suffered by the persons of the LGBT community in Venezuela may constitute persecution.

[29]     As your counsel pointed out, in your particular case your occupation makes you more visible to the public and therefore would attract more notice for you as a gay man and then may lead to more discrimination and persecution.

[30]     You are not expected to hide your sexual orientation in order to ensure your safety and security. And, I find that based on the objective evidence, it demonstrates that if you, that you may suffer discrimination, violence amounting to persecution if you were to live as openly as a gay man.

[31]     Therefore I conclude that you have met your burden of proof and have demonstrated that you face a serious possibility of persecution based on a Convention ground if you return to Venezuela which is a membership in a particular social group, persons who fear discrimination persecution based on their sexual orientation or gender identity.

[32]     I find that there is not adequate State protection for you in Venezuela. In coming to this conclusion I have taken into consideration of your personal profile and your particular situation at this time.

[33]     Also the interaction you experienced on two occasions with the police indicates that you yourself already found that the police themselves are involved in some cases in persecuting LGBTQ minority and therefore it would be difficult to expect they would also provide protection for you.

[34]     As indicated, the reports indicate that although discrimination based on sexual orientation is barred, LGBTQ community members faced widespread discrimination and are occasionally subjected to violence.

[35]     So, therefore considering the entirety of the evidence, I find that there is clear and convincing evidence that at this time that Venezuelan authorities are unable or unwilling to provide you with adequate protection and therefore I find that the presumption of State protection has been rebutted in your particular circumstances.

[36]     So, considering your personal situation and the current situation for the LGBT community in Venezuela, I find that there is a serious possibility of persecution for you throughout the country of Venezuela.

[37]     In conclusion, based on all these reasons, I conclude that you are a Convention refugee and the Refugee Protection Division accepts your claim. Congratulations, and I hope you lead a happy life in Canada.

[38]     CLAIMANT: Thank you so much. Thank you.

[39]     COUNSEL: Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Venezuela

2019 RLLR 115

Citation: 2019 RLLR 115
Tribunal: Refugee Protection Division
Date of Decision: January 7, 2019
Panel: Jennifer Ellis
Country: Venezuela
RPD Number: VB8-02306
ATIP Number: A-2020-01459
ATIP Pages: 000212-000220


This unedited transcript constitutes the member’s written reasons for decision.

— PROCEEDINGS COMMENCED

[1]       PRESIDING MEMBER: This is a decision of the Refugee Protection Division of the Immigration and Refugee Board in the joined claims of a family from Venezuela. The principal claimant is [XXX]. The associated claimants are [XXX], spouse of the principal claimant, and [XXX], minor child of the principal claimant. This transcript constitutes the Member’s written reasons for decision, as the decision was not rendered orally at a hearing.

[2]       The hearing was held via videoconference on December 11, 2018. The claimants, their counsel, and the interpreter were all in Calgary, while I presided over the hearing from Vancouver. At the start of the hearing the principal claimant was designated as the representative for the minor claimant. The claimants are citizens of Venezuela and are seeking refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       Allegations: The detailed allegations of the claimants are set out in their respective basis of claim forms and can be summarized as follows.

[4]       The principal claimant is a citizen of Venezuela and no other country. The associated claimants are citizens of both Venezuela and Italy.  The principal claimant fears returning to Venezuela because of his opposition to the current regime and his status as a member of an opposition party, namely, the Alianza Bravo Pueblo. The associated claimants fear returning to Venezuela as the family members of the principal claimant.

[5]       Determination: I find that the principal claimant is a Convention refugee pursuant to Section 96 of the Act on the grounds of his political opinion. I find that the two associated claimants [XXX] and [XXX] are neither Convention refugees nor persons in need of protection.

[6]       Analysis: Identity: The identity of the principal claimant as a citizen of Venezuela is established by his testimony and the identification documents on file, namely, his valid Venezuelan passport.  The identity of the minor claimant as a citizen of both Venezuela and Italy is established by the documents on file, namely, his valid Venezuelan and Italian passport. The same is true for the adult associated claimant; I find that her identity is established as a citizen of both Venezuela and Italy based on the documents on file, namely, her valid Venezuelan and Italian passports.

[7]       Exclusion: It’s the claimant’s evidence that he resided with his wife and son in Chile from January 2017 to October 2017 and that they all had valid status while there. Nevertheless, I do not find that exclusion pursuant to Article 1E of the UN Convention on the Status of Refugees is engaged. The claimant testified that they only ever had temporary status in Chile and their application for permanent status was rejected in October 2017. I have found the claimant’s evidence on this point to be both straightforward and spontaneous. While they do not have any documentary evidence confirming the rejection of this application, I also have no reason to disbelieve the claimant’s testimony on this point. As such, I accept that at the time the claimants came to Canada in [XXX] 2018 they no longer had any status in Chile.

[8]       Countries of reference: In order for a claim for refugee protection to be successful the Act requires that the claimant must establish a claim against each of their countries of nationality.

[9]       Principal claimant; although there is no evidence before me that the principal claimant is an Italian citizen, I must nevertheless determine whether Italy is a country of reference with respect to his claim.

[10]     Indeed, the term “countries of nationality” in Section 96(a) of the Act includes potential countries of nationality. Where citizenship in another country is available the claimant is expected to make attempts to acquire it and will be denied refugee status if it is shown that it is within his or her power to acquire that other citizenship.  Consequently, a person who is able to obtain citizenship in another country by complying with mere formalities is not entitled to avail him or herself of protection in Canada.

[11]     The issue of the right to citizenship was explored by the Federal Court of Appeal in Williams v. Canada 2005 FCA 126. In this decision the Court of Appeal found that refugee protection will be denied where the evidence shows at the time of the hearing that is within control of the claimant to acquire the citizenship of a particular country with respect to which the claimant has no well-founded fear of persecution. The Court of Appeal explained that the appropriate test is whether it is in the control of the person concerned to acquire the citizenship of a country with respect to which he has no well­ founded fear of persecution, if yes the claim will be denied. In other words, I must consider whether it is in the claimant’s control to acquire Italian citizenship.

[12]     I have found a number of documents contained in the national documentation package for Italy to be of great assistance to this issue. For example, Item 3.2 of the national documentation package is a document from the United States Library of Congress entitled “Citizenship Pathways and Border Protection Italy” and Item 3.4 is a European University Institute document from 2013 which also directly addresses citizenship law in Italy. According to these two documents there are only four ways in which Italian citizenship is automatically acquired, the first is by dissent from an Italian citizen, by birth in the Italian territory, by judicial recognition, affiliation, by an Italian citizen while the child is a minor, and through adoption. In other words, individuals are not able to acquire Italian citizenship automatically simply by nature of having an Italian citizen spouse.

[13]     Indeed, the document at 3.2 of the national documentation package goes on to explain that the foreign spouse of an Italian citizen may acquire Italian citizenship subject to a number of requirements, including the somewhat vague absence of impediments concerning the security of the republic. In other words, there is some discretion at the hands of Italian authorities.

[14]     As is explained in the Federal Court’s decision in Khan v. Canada 2008 FC 583, if the circumstances are not within a claimant’s control and the authorities are not compelled to grant citizenship the Board should not consider how the authorities might exercise their discretion.

[15]     Additionally, I note that the Federal Court has also held that a claimant is not required to demonstrate that it was more likely than not if they applied that they would be granted citizenship. See, for example, Hua Ma v. Canada 2009 FC 779.

[16]     Based on the evidence before me, I find that Italy is not a country of reference with respect to the principal claimant. As such, I will only be considering his claim against Venezuela.

[17]     Associated claimants: As citizens of Italy and Venezuela the associated claimants must establish a claim against both of those countries of nationality in order to obtain refugee protection. Neither of the associated claimants advanced a claim against Italy. Nonetheless, I have examined all of the evidence before me to determine whether or not the associated claimants satisfy the requirements under Section 96 or 97(1) of the Act as against Italy and I conclude they do not. Accordingly, it is unnecessary to examine the risk they face in Venezuela and their claims for refugee protection must be rejected.

[18]     For the remainder of these reasons I turn to the claim of the principal claimant alone.

[19]     Credibility: Pursuant to the Moldonado principle it is presumed that sworn testimony is true unless there is sufficient reason to doubt its trustworthiness. I have found the claimants to be credible witnesses and I believe what they have alleged. The adult claimants’ testified in a straightforward manner and did not exaggerate in any way. They were clear when they did not know the answer to my questions and appropriately asked for clarification when necessary. There were no relevant inconsistencies in their testimony or contradictions between their testimony and the other evidence before me.

[20]     During the hearing the principal claimant was asked a number of questions about his membership with the Alianza Bravo Pueblo, the ABP. He explained that he became a member of the party because he identified with the party’s founder and leader Antonio Ledezma. He explained that the ABP was a new group founded in 2000 that has fought for human rights and democracy in Venezuela since its inception.

[21]     The IRB document found at Item 4.10 of the national documentation package, namely, VEN104851, confirms that the Alianza Bravo Pueblo is a political party in Venezuela that seeks to improve public governance through democratic processes and is focussed on developing social justice, freedom, peace, solidarity, equality of opportunities and progress. This document confirms that the ABP was founded by Anthony Ledezma in 2000 and also indicates that party members have been subject to politically motivated arrests in Venezuela.

[22]     With respect to his specific role in the ABP, the principal claimant testified that he worked as a [XXX] and [XXX]. He participated in various rallies and demonstrations in opposition to the government over a period of several years. Sometimes his participation involved driving protestors to different places and bringing supplies to protests.

[23]     I note that at pages 11 and 12 of Exhibit 5 the claimant has provided a letter from the ABP confirming his membership with the party since 2005 and setting out the details of his activities as a human rights defender and activist. He’s described as a [XXX] and a [XXX] for the rescue of the democratic system. This letter is printed on party letterhead and has been affixed with the party stamp. I have no reason to believe that this document is not genuine.

[24]     In addition, the claimant has provided a number of support letters from friends and activists attesting to the claimant’s vocal opposition to the current regime in Venezuela. In my view, these letters contain what are essentially witness statements relating to a number of the attacks that the claimant experienced while engaging in political activities. These letters are all included in Exhibit 5.

[25]     For example, letters found at pages 25 through 29 and 33 through 36 confirm that the claimant was attacked and threatened by government supporters on May 18, 2016. A medical report documenting head injuries sustained by the claimant on that date can be found at pages 13 through 15 of Exhibit 5.

[26]     There’s also a support letter at pages 16 through 20 which corroborates the claimant’s evidence that he was again attacked on December 10, 2017 by a number of collectivos because of his political activities. A second medical report dated March 5, 2018 corroborates the claimant’s evidence that he again suffered head injuries from an attack at the hands of the same group of government supporters on this date.

[27]     The IRB’s document VEN106030 found at Item 4.6 of the NDP discusses the pro­ government groups known as collectivos and specifically states that they function like gangs that are integrated into the state’s policing apparatus.

[28]     Furthermore, a November 2017 report by Human Rights Watch found at Item 2.10 of the national documentation package documents the way that these groups are responsible for “violent attacks or detentions that appear to be motivated by loyalty to the government”.

[29]     In addition, I note that there is a document contained in Exhibit 5 at pages 41 through 46, the title of which has been translated as “Request for an Arrest Warrant” and which has been prepared by the national prosecutor’s office in Venezuela. This document, which is dated September 22, 2018, appears to be requesting that the authority be given for the principal claimant to be arrested on the grounds that he has been engaged in war propaganda and messages of national hate.

[30]     The claimant clarified during the hearing that this document was obtained by his sister in Venezuela with the assistance of a lawyer after state officials came looking for him at his parents’ home following his flight from the country. The claimant testified that he was unsure as to whether or not an arrest warrant was ever issued against him after this request was submitted by the prosecutor’s office but he indicated that it frightened him nonetheless.

[31]     According to a January 2018 Human Rights Watch report found at Item 2.3 of the national documentation package, while authorities repeatedly arrest and prosecute political opponents they also bring charges or threaten to bring criminal charges against protestors and even many regular Venezuelans simply for criticizing the government.

[32]     Similarly, the Freedom House report found at Item 2.4 of the NDP indicates that Venezuelans democratic institutions have deteriorated since 1999 but conditions have grown sharply worse in recent years due to a concentration of power in the executive and harsher crackdowns on the opposition.

[33]     Indeed, the U.S. Department of State human rights report found at Item 2.1 confirms that the law criminalized criticism of the government.

[34]     Based on the claimant’s own evidence and the supporting documentation he has provided, as well as the independent country evidence contained in the national documentation package, I accept that he was an active member of the Alianza Bravo Pueblo when he was residing in Venezuela; that he received a number of threats and suffered a number of physical attacks as a result of his political views, and that he continues to be opposed to the current regime in Venezuela.

[35]     Additionally, I accept that the request for an arrest warrant was a tool used by the government to intimidate the claimant to cease his political activities and that his political activism would have been protected under the Charter and would not have constituted a crime in Canada under the Criminal Code.

[36]     Accordingly, I find that the claimant is not excluded under Article l(f)(b) of the UN Convention.

[37]     Subjective fear:  While some of the claimant’s actions could be viewed as evidence of a lack of subjective fear, the claimant has provided reasonable explanations for each of them.

[38]     For example, I note that the claimant was attacked by government supporters on May 18, 2016. During this altercation the attackers advised the principal claimant that they knew who he was, where he lived, and that he had a wife and a son. He was threatened that if he continued on with his opposition work his family would be harmed.

[39]     In his basis of claim form he explained that as a consequence of this attack his wife and son travelled to Canada for a few months beginning in [XXX] 2016. During the claimant’s testimony he explained that he wanted his wife and son to leave earlier but given the challenges they had in scheduling flights because of the current crisis in Venezuela they were unable to do so.

[40]     While they awaited their departure from Venezuela, the associated claimants did not leave the family home even to purchase groceries, and the principal claimant himself kept a very low profile. It’s the claimant’s evidence that he remained hopeful that the political and humanitarian situation in Venezuela would improve and that the opposition groups would be successful in their endeavours against the current regime. Indeed, he continued fighting for what he believed in because of his deeply held beliefs regarding the importance of standing up to injustice. After several months of laying low the claimant continued his opposition activities as he felt compelled to do.

[41]     I also note that the claimants travelled to the United States for one month beginning in [XXX] 2016 and that they then went to Chile for approximately nine months after that. They did not seek refugee protection in either country and ultimately returned to Venezuela at the end of [XXX] 2017.

[42]     With respect to the United States, it was the claimant’s evidence that they sought legal advice but were advised that seeking asylum was very risky given the current administration.

[43]     While the claimants did not seek protection in Chile they did obtain temporary work permits and made an application for permanent status. This application was denied and the claimants returned to Venezuela. It’s the claimant’s evidence that they returned with the hope of finding a calmer Venezuela and indeed they had no problems until December 2017.

[44]     I note that following the attack suffered by the principal claimant in December 2017 he and the associated claimants moved to his parents’ home approximately 30 kilometres away. Again the claimant remained hopeful, if not somewhat naïve, and when things appeared to calm down he and his family moved back to the family home a month later.

[45]     It was not until March 5, 2018 that the claimant was again attacked, this time with a gun to his head in front of both his wife and his son. It was then that the claimant accepted that he was no longer safe in Venezuela and the family left as soon as they were able in [XXX] 2018.

[46]     Under the circumstances, I find that the claimants’ explanations are reasonable. The claimants had valid status in the United States while they were there and did not face an imminent risk of being removed to Venezuela. The claimants also took steps to obtain permanent status in Chile albeit through an economic route and were unsuccessful. Throughout this time, however, they remained hopeful that the situation in Venezuela would improve. Indeed, the commitment of the principal claimant to his political values and to the ABP were what drove him to continue fighting for change despite the risks. I do not find that the claimant’s failure to claim elsewhere or his return to Venezuela to be indicative of a lack of subjective fear.

[47]     In addition, given their personal circumstances and the current anti-refugee rhetoric and realities in the United States, I find that the claimants’ decision to come to Canada to find a more permanent solution by making a refugee claim to be consistent with a subjective fear.

[48]     As such, I find that the principal claimant has established his subjective fear of persecution on a balance of probabilities.

[49]     Objectively well-founded fear: I find that the country conditions, in light of the principal claimant’s personal profile, demonstrate that his fear of persecution in Venezuela is well­ founded. The principal claimant has established, on a balance of probabilities, that he holds opinions contrary to the current regime in Venezuela and that he has expressed these opinions publicly on a number of occasions. Based on the available country condition evidence, I find he does face a serious possibility of persecution in Venezuela by reason of his political opinion.

[50]     In addition to the documents I have already cited, I note that Item 1.4 of the national documentation package, which is a background and policy report prepared by the United States Congressional Research Service, indicates that Venezuela remains in a deep political crisis under the authoritarian rule of President Nicolas Maduro of the United Socialist Party of Venezuela. Despite his unpopularity, President Maduro has successfully used the courts, security forces, and electoral council to repress the opposition.

[51]     This Human Rights Watch report also documents that tens of thousands of people took to the streets in Venezuela to protest against the government controlled Supreme Court’s attempt to usurp the powers of the country’s legislative branch in April 2017. Demonstrations quickly spread throughout the country and continued for months fueled by widespread discontent with the authoritarian practices of President Nicolas Maduro and the humanitarian crisis that has devastated the country under his watch. According to the report, the government responded with widespread violence and brutality against anti­ government protestors and detainees and has denied detainees due process rights. While it was not the first crackdown on dissent under Maduro the scope and severity of their oppression in 2017 reached levels unseen in Venezuela in recent memory.

[52]     The 2017 U.S. Department of State Human Rights report found in the national documentation package as Item 2.1 explains that democratic governance and human rights deteriorated dramatically during the year as the result of a campaign of the Maduro administration to consolidate its power. Security forces and armed pro-government paramilitary groups known as collectivos, at times, use excessive force against protestors.

[53]     According to the report, credible non-governmental organizations documented indiscriminate household raids, arbitrary arrests, and the use of torture to deter protestors. The government arrested thousands of individuals and tried hundreds of civilians in military tribunals. The government routinely block signals, interfered with operations, or shutdown privately owned television, radio, and other media outlets.

[54]     In my view, the principal claimant has established that he does indeed have an objectively well-founded fear of persecution on the grounds of his political opinion.

[55]     State protection: As the state is the agent of persecution, or at least is heavily complicit in such acts of persecution, it is clear that state protection would not be reasonably forthcoming to individuals in the position of the claimants. As such, I find that there is no state protection available to the principal claimant were he to return to Venezuela.

[56]     Internal flight alternative: The independent country documentation also shows that the Venezuelan authorities have effective control of the country’s entire territory. Therefore, there is nowhere in Venezuela where the principal claimant could go without a serious possibility of persecution. He therefore has no viable internal flight alternative available to him.

[56]     Conclusion: For the foregoing reasons, I conclude that the principal claimant is a Convention refugee and I therefore accept his claim. I further conclude that the two associated claimants are neither Convention refugees nor persons in need of protection and I therefore reject their claims.

— DECISION CONCLUDED

(signed)           Jennifer Ellis

January 7, 2019

Categories
All Countries Venezuela

2019 RLLR 107

Citation: 2019 RLLR 107
Tribunal: Refugee Protection Division
Date of Decision: March 7, 2019
Panel: Robert Bafaro
Counsel for the Claimant(s): Yaritza Martinez
Country: Venezuela
RPD Number: TB8-25225
Associated RPD Number(s): TB8-25277, TB8-03615
ATIP Number: A-2020-01459
ATIP Pages: 000167-000171


[1]       MEMBER: I’ve had a chance to carefully review all of the evidence before me, to carefully consider the testimony of the principal claimant, XXXX, the testimony of his daughter XXXX. I’ve had a chance to examine all of the supporting documents that have been provided as well as the country documents regarding the human rights situation in Venezuela at the present time, as reflected in the National Documentation Package on Venezuela from May 2018.

[2]       I’ve decided to accept these refugee claims and I’m now going to deliver my oral reasons from the bench.

[3]       The claimants, [XXX] and [XXX], are claiming refugee protection pursuant to s. 96 and s. 97 of the Immigration and Refugee Protection Act.

[4]       With respect to the issue of their identities, I’m satisfied that they have established, on a balance of probabilities, that they are who they claim to be and that they are citizens of Venezuela. have in evidence before me, in Exhibit 1, certified true copies of their Venezuelan passports.

[5]       The other important issue that I have to assess in all refugee claims is the issue of credibility. I have to be satisfied that the testimony and evidence of the claimants, as it relates to the most central, most important, aspects of their refugee claims, is credible.

[6]       Now, in refugee law in Canada, there’s a presumption. The presumption is that everything that a claimant says under oath is true, unless there’s evidence, persuasive evidence, to the contrary. I find that there is no persuasive evidence to the contrary.

[7]       The narratives of the principal claimant, [XXX], and his daughter, [XXX], are very detailed. I’m not going to repeat everything that’s in their basis of claim forms. Suffice it to say that they are both alleging a fear of persecution in the country on the grounds of their political opinion, both their actual political opinion and their perceived or imputed political opinion, by virtue of the fact that they are members, active members, of an opposition party called COPEI (ph.). They are alleging that they fear persecution in the country also because they were actively involved in protesting, demonstrating and criticising the government – the Chavez government, the current government of Maduro – by attending demonstrations, protests, holding placards, distributing flyers, condemning the government, in the hopes of restoring some kind of democracy. As the principal claimant mentioned, he was providing logistical support, food, water, but he was also actively involved holding placards, distributing anti-government literature and flyers to demonstrators. The principal claimant has been political active for many, many years. His daughter, [XXX], started in – became a member of the party in 2007 and then she continued right up until 2014 and then the threats started. And the threats continued right up until the time she left the country for the very last time. So, that is a synopsis or a brief encapsulation of the key elements that form the basis for these refugee claims.

[8]       I already made some comments about credibility. And I heard testimony from the principal claimant. I heard testimony from [XXX], his daughter. And first want to make some comments about the principal claimant.

[9]       He gave his testimony in a very straightforward manner. His answers were spontaneous. They were consistent with the objective country information. They were consistent with the information provided in his basis of claim form. There were no major contradictions or inconsistencies or discrepancies between his testimony and other evidence which was before me.

[10]     Likewise, his daughter [XXX] also testified in a straightforward manner. Her answers were spontaneous. Her answers were generally consistent with the very detailed information she provided in her basis of claim form narrative and her testimony was consistent with, generally speaking, with the objective country information contained in the National Documentation Package on Venezuela.

[11]     And I wanted to make one comment about [XXX] and her testimony. There was one aspect of her testimony that I did have some difficulty with. However, I think she – however, I find that she did provide a reasonable explanation.  Initially I didn’t find it entirely – it didn’t make a lot of sense to me and it didn’t seem to be plausible that despite these continuing threats from the Venezuelan government that she would keep leaving the country and re-availing herself of the country. In other words, it didn’t sound plausible to me that someone who’s fearing persecution would leave the country of persecution, go abroad to places like Argentina, United States, Canada and not ask for protection.

[12]     However, I find that she provide a reasonable explanation. And the explanation is this. Those other times that she went out of the country, it was a kind of a temporary measure. She really had no intention at that time to claim asylum. She wanted to finish her education. And, more importantly, she didn’t really feel at that time that the threats were as serious as they became later.

[13]     Now, a threat is a threat. It’s serious. However, it wasn’t until later, when she returned from Canada and went back to Venezuela and returned to Margarita Island, that things became a lot worse. It was when she went back that she was kidnapped, she was beaten up, she was threatened with rape. And they clearly perceived her to be someone that was disloyal to the government, an opponent of the government, especially since she had actually done an internship within the government. And it’s people that work for the government especially that the government expects loyalty from them, expects them to be patriotic. And in her case, she wasn’t. She didn’t want to go along with what the government was trying to pressure her to do, which was to get this patriotic identity card under Chavez to, you know, vote for the government and support their policy. She refused to do that and, in fact, did the opposite. She continued to remain active in an opposition political party and attended protests that were denouncing the government.

[14]     So, I think when you look at it that way, it actually sounds entirely reasonable and plausible that initially she didn’t claim asylum or ask for protection in those countries, but once she was actually kidnapped and physically assaulted at gun point and then threatened with rape, that that was basically the final straw. And it’s at that point in time that she came to the realisation that this situation was really serious and that it was out of control and that things were not going to get better. And it’s precisely around that time that she left and then her parents followed her to Canada because the threats were continuing.

[15]     So, that having been said, I find in light of all of the evidence that both the principal claimant, [XXX], and his daughter [XXX] were in fact very credible witnesses.

[16]     Now, turning to the objective evidence – and the objective evidence is not in dispute. It’s we – we know what’s going on in Venezuela. The objective documents speak very clearly about what’s going on in Venezuela, that if you’re a political activist, you’re an opponent of the government, you’re criticising their policies openly at demonstrations, protests, you face serious problems, including arbitrary arrest, detention, torture, extra-judicial killings. The situation has really spiralled out of control and the Maduro government has consolidated its power, giving itself and its own – members of its own party the ultimate power over and above the power that the National Assembly once used to have.

[17]     So, I’m now going to refer to some of the objective documents that talk about the situation in Venezuela.

[18]     Item 2.3 in the National Documentation Package, which in evidence today as Exhibit 5, indicates – and it’s a report from Human Rights Watch. It indicates that brutal repression of political protest in Venezuela, the erosion of human rights, state-sponsored censorship, intimidation of critics, and – it notes that people face torture and abuse in custody and that people are discriminated against because of their criticism of the government.

[19]     Item 4.3 notes that the political prisoners have been tortured in Venezuela and the government has limited human rights, including personal freedom of integrity and freedom of expression.

[20]     Item 4.14 notes that,

“Protests have been met with outright prohibition, roadblocks … repressive policing, as well as deployment of armed civilians who have beaten and shot at demonstrators.”

[21]     The colectivos are a violent paramilitary wing of the ruling socialist party and they are responsible for much of this political persecution.

[22]     As indicated in Item 4.16, a faction of the colectivos known as the Tupamaros are also known for dealing ruthlessly with political opponents through fierce and deadly intimidation and assault by firearm, including the murder of protesters.

[23]     Based on the evidence before me, I find that the claimants face more than mere possibility of persecution in Venezuela as opponents of the Maduro régime.

[24]     I find that your claims are objectively well-founded. The totality of the country documentation supports your allegations.

[25]     On a balance of probabilities and in light of your particular circumstances, I find that there is clear and convincing evidence that the Venezuelan State would be unwilling to provide political opponents with protection. Indeed, the agent of persecution that you fear in Venezuela is the government itself. And the documentary evidence at Exhibit 5 corroborates this.

[26]     I just wanted to back up one minute and just mention that another reason why I found the claimants’ testimony to be credible is that it was supported by objective documentation. And this is found at Exhibit 9. The claimants provided supporting documents that corroborate central aspects of their refugee claim. And those are found at – beginning at page 22, it talks about the internship of the female claimant, [XXX]. There’s another document, page 24, that corroborates the fact that she had an internship with the government. We’ve got a letter, page 27, that corroborates that [XXX] was a member of the COPEI opposition political party. And likewise we have a document, at page 30, that corroborates the membership of [XXX] in the COPEI opposition party and it corroborates that – and both of these letters corroborate that both [XXX] and [XXX] were not just members, or card-carrying members; they were activists. They were actively involved in opposing the Maduro government. They were actively involved in protests against the government.

[27]     There’s also a witness statement at page 33 that provides corroboration about an incident that happened at the claimants’ home. Sorry, there’s a – let me – I stand corrected. There’s a witness statement that says that since they have left the country, there continues to be unusual activity surrounding their home and that – suspicious activities in their neighbourhood, involving people going around asking, trying to find out where the [XXX] family has gone to.

[28]     And there’s also a medical report, at page 36, which corroborates an incident in June of 2017 involving [XXX], where she sustained multiple contusions, and this was around the time that she was kidnapped, beaten brutally and threatened with rape.

[29]     So, I find that the documentary evidence is both clear and convincing and that it rebuts the presumption of State protection in your particular circumstances.

[30]     I’ve also considered whether there’s an internal flight alternative for you, as members of one family, anywhere in the country, in Venezuela. However, on the evidence before me, I find there is a serious possibility of persecution for all of you throughout the country in your particular circumstances. Again, the documentary evidence at Exhibit 5 indicates that persecution of political opponents occurs throughout the country.

[31]     For the foregoing reasons and having considered all the evidence before me, I conclude that you all face a serious possibility of persecution on the basis of your both imputed and actual political opinions, should you return to Venezuela.

[32]     According, I am accepting your refugee claims and find you to be Convention refugees pursuant to s. 96 of the Immigration and Refugee Protection Act.

DECISION CONCLUDED