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