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