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2019 RLLR 71

Citation: 2019 RLLR 71
Tribunal: Refugee Protection Division
Date of Decision: November 19, 2019
Panel: Daniel Marcovitch, Miranda Robinson, Dawn Kersha
Counsel for the claimant(s): Vilma Felici
Country: El Salvador 
RPD Number: TB8-27180
ATIP Number: A-2020-01274
ATIP Pages: 000207-000209


DECISION

[1]       MEMBER: We’ve considered your testimony, evidence and supporting documentation and we are ready to render our decision orally.

[2]       This is the decision for [XXX] who I’ll-, who I will refer to as the claimant, who claims to be a citizen of El Salvador. He’s claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. The details of the claimant’s allegations are documented in his Basis of Claim form and in his oral testimony.

[3]       The claimant alleges he fears a risk of harm from society in general and criminal gangs in particular in El Salvador because of his sexual orientation as a gay man.

[4]       The Panel determines that the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act. As he has a well-founded fear of persecution based on his membership in a particular social group.

[5]       The Panel finds that the claimant has established on a balance of probabilities his personal identity and national identity as a citizen of El Salvador through his testimony and the disclosure of the claimant’s identity documents, namely his passport.

[6]       The claimant testified in a candid, straightforward manner and without embellishment. There were no discrepancies and inconsistencies, omissions or contradictions in the claimant’s oral testimony and the other evidence before the Panel. The claimant readily answered all the questions without hesitation and provided further detail when asked to do so.

[7]       The claimant provided supporting documentation in the form of a denunciation to the Attorney General and support letters from family members to substantiate his allegations. No credibility concerns arose and a session of reasons arose to doubt the truthfulness of the claimant.

[8]       The Panel therefore finds on a balance of probabilities that the claimant is a credible witness.

OBJECTIVE DOCUMENTATION

[9]       In recent years, El Salvador’s government has enacted several positive measures to protect members of the LGBT community. While in office in 2010, Salvadorian President Mauricio Funes signed executive Order 56 prohibiting discrimination based on sexual orientation and/or gender identity by executive branch agencies. Further, homosexuality is not criminalized in El Salvador and the country’s constitution protects a person’s right to life and physical integrity.

 [10]    It also establishes the equality of all persons before the law. Also, El Salvador has ratified the international covenant on civil and political rights which has been interpreted to pr-, to include protection from discrimination for LGBTI people. However, even with the positive steps just noted, there are still deeply ingrained social prejudices that lead to the persistence of systematic violence carried out by State actors. In addition, the absence of processes aimed at achieving accountability plays into perpetrators’ ability to act with impunity, repeating the cycle of violence and discrimination. This extends to crimes and other violence motivated by hatred or prejudice that are carried out by other members of society.

[11]     A review of the documentary evidence pertaining to the situation of sexual minorities in El Salvador shows that sexual minorities face human rights abuses, including acts of violence.

[12]     Discrimination against sexual minorities was widespread. Thus, being gay, bi-sexual, transgender and intersex communities faced risks and suffered violence and intimidation from State agents, individuals and private groups. LGBT persons have been killed due to their sexual identity. LGBT persons are some of the most vulnerable popu-, populations in El Salvador. And are discriminated against in education, health care and employment. A serious aspect of violence against sexual minorities is criminal gangs.

[13]     The documentary evidence indicates that these groups acted in an extremely violent way, usually attacking and murdering sexual minorities. The claimant testified to hav-, to having personally experienced threats and violence from members of what he believed to be a gang. Non-governmental organizations have reported that public officials, including the police, engaged in violence and discrimination against LGBTI persons. Sexual minorities were ridiculed when they applied for identification cards or reported cases of violence against LGBTI persons.

[14]     Documentary evidence indicates that all members of LGBT persons tend to remain unsolved, violence sorry, violations of human rights of LGBTI people are not investigated by the State in effective or adequate manner and perpetrators have not been punished. It’s also noted that State authorities did not act with due diligence to prevent such acts of violence.

[15]     Based on the documentary evidence before me and the Panel, we find that the claimant’s allegations of a risk of harm, based on a sexual orientation are supported by the objective documentary evidence.

[16]     The Panel also finds on a balance of probabilities, that adequate state protection would not be forthcom-, forthcoming on a forward-looking basis.

INTERNAL FLIGHT ALTERNATIVE

[17]     Given the lack of adequate state protection available to the claimant. And given the fact that the gangs are prevalent throughout El Salvador, the Panel finds on a balance of probabilities that the claimant would face a serious possibility of persecution anywhere in El Salvador if he were to return and attempt to live openly as a gay man.

[18]     Therefore, the Panel finds that there’s no viable internal flight alternative available to the claimant.

[19]     So, in conclusion, we find that the claimant would be subject to a serious possibility of persecution should he return to El Salvador. And having considered the totality of the evidence, we find that the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act.

[20]     And therefore, accepts his claim.

———- REASONS CONCLUDED ———-