Citation: 2020 RLLR 139
Tribunal: Refugee Protection Division
Date of Decision: February 28, 2020
Panel: Persia Sayyari
Counsel for the Claimant(s): Molly Joeck
Country: Venezuela
RPD Number: VB9-01283
Associated RPD Number(s): VB9-01290, VB9-01293, VB9-01294, VB9-01295
ATIP Number: A-2021-01106
ATIP Pages: 000141-000153
REASONS FOR DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division in the claims of Rayner Enrique [XXX] (the principal claimant); his spouse, [XXX] (the associate claimant), and their minor children, [XXX] and [XXX] (the minor claimants).
[2] I have appointed [XXX] as the designated representative for his minor children, [XXX]and[XXX].
[3] The principal claimant claims to be a citizen of Venezuela.
[4] The associate claimant and the minor children all claim to be dual nationals of Venezuela and Colombia.
[5] All of the claimants are seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
DETERMINATION
[6] I find that [XXX] is a Convention refugee pursuant to section 96 of IRPA as he has established a serious possibility of persecution in Venezuela due to his political opinion.
[7] I find that [XXX] and [XXX] are not Convention refugees under section 96 nor persons in need of protection under section 97(1) of IRPA because although they have established a serious possibility of persecution in Venezuela due to their political opinion, they have not established a claim against Colombia, where they hold nationality.
ALLEGATIONS
[8] The claimants’ allegations were set out in their Basis of Claim forms[2] and oral testimony. To summarize, the claimants fear persecution from Venezuelan authorities due to their political opinion.
[9] All of the claimants were born in Venezuela and are citizens of Venezuela. The associate claimant and the minor claimants also obtained Colombian citizenship through the Colombian consulate while living in Venezuela. They held a right to Colombian citizenship because the associate claimant’s parents were dual nationals of Venezuela and Colombia.
[10] In 2005, the associate claimant founded a [XXX] and became its president. From 2007 onwards, the principal claimant also worked there as the company’s [XXX] and [XXX]. The company distributed [XXX] for the [XXX] Venezuelan companies [XXX] and [XXX].
[11] Since 2012, the adult claimants have been active members and supporters of Primero Justicia, an opposition political party in Venezuela. In [XXX] 2017, the adult claimants attended a large protest against the decision of the Supreme Tribunal of Justice to dissolve the opposition led National Assembly. The next day, a plain-clothes police officer named [XXX] overhead the principal claimant discussing the protest with a customer in his store. He subsequently returned with 12 officers, arrested the principal claimant, and seized the store’s merchandise.
[12] Police interrogated the principal claimant about his participation in the protest. They released him after he agreed to pay a bribe of $[XXX] worth of [XXX]. In [XXX] and [XXX] 2017, COBIS twice returned to the claimants’ store demanding bribes. The second time, the principal claimant refused and filed a complaint about COBIS with the Attorney General’s Office.
[13] The claimants started having technical problems with an [XXX] which they used to do business with [XXX] The principal claimant made inquiries and the president of [XXX] told him their access was intentionally suspended because the principal claimant had been identified by COBIS as a government opponent.
[14] In [XXX] 2018, COBIS and four other men stopped all of the claimants in a parking lot when they were leaving a restaurant. COBIS told the principal claimant he was an “enemy of the homeland” who needed to be careful. The principal claimant filed another complaint about COBIS with the Attorney General’s Office.
[15] On [XXX] 2018, the Bolivarian National Intelligence Service (SEBIN) summoned the principal claimant to an interview, claiming they wanted to gather more information about his two complaints against COBIS. A SEBIN officer asked the principal claimant about his travel history and business activities and accused him of being an American spy. He gave the principal claimant a summons for a second interview about “crimes against public order and against the nation’s independence and security.”[3] The claimants fled Venezuela on [XXX] 2018.
Identity
[16] The claimants’ identities have been established on a balance of probabilities by copies of their Venezuelan passports.[4]
Credibility
[17] I find the claimants to be credible. They provided straightforward and spontaneous testimony. There were no relevant inconsistencies within their testimony or between their testimony and the documentary evidence before me. The claimants also provided a number of documents to support their claim, including:
- The two complaints made by the principal claimant to the Attorney General’s Office in [XXX] 2017 and [XXX] 2018;
- Invoices related to the claimants’ business activities with [XXX];
- The two summons from SEBIN issued to the principal claimant;
- The adult claimants’ Primero Justicia membership cards.
[18] These documents were consistent with the claimants’ allegations and I have no reason to doubt their authenticity. I thus accept the claimants’ evidence as credible and I believe their allegations.
Countries of Reference: Principal Claimant
[19] I find on a balance of probabilities that the principal claimant is a national of only Venezuela and that he does not have a right to citizenship in Colombia.
[20] The principal applicant is married to a Colombian citizen and is the father of three children with Colombian citizenship. He does not currently hold any type of visa or residency permit in Colombia. He testified that when he inquired with officials at the Colombian consulate in Venezuela about how he could obtain residency or citizenship through his family relationships, he was told the process was discretionary and his chances would be “better as an investor.”
[21] The principal claimant’s testimony accords with country condition evidence indicating that the process for him to obtain citizenship in Colombia is discretionary. The National Documentation Package (NDP) for Colombia outlines the steps for him to obtain Colombian citizenship. First, he must apply for a temporary three-year visa. The authorities who process applications for those visas retain discretion to require an interview and additional documentation before granting applications. Second, if he is successful in obtaining a temporary three-year visa, he would become permitted to apply for a five-year resident visa. Third, if he was successful in obtaining the five-year resident visa, he would become permitted to apply for Colombian citizenship.[5]
[22] Given this evidence, I find on a balance of probabilities that the principal applicant does not have a right to citizenship in Columbia because the right is not automatic under the law.
Countries of Reference: Associate Claimants
[23] According to sections 96 and 97 of IRPA, a claimant must establish his or her claim against each country of nationality. The claimants indicated on their Basis of Claim forms and narratives that all of the associate claimants are dual nationals of Colombia and Venezuela. They confirmed this in their oral testimony. I find on a balance of probabilities that the associate claimants are dual nationals of Colombia and Venezuela and must therefore establish their claims against both countries.
The Claim Against Venezuela
Well-Founded Fear Of Persecution
[24] The claimants have established a well-founded fear of persecution in Venezuela.
[25] The adult claimants are members of Primerico Justicia, an opposition party, and have demonstrated their opposition to the Venezuelan government by attending public protests. They are known to be politically opposed to the Venezuelan government by members of the police force, by the president of a [XXX] company, and by the SEBIN. Immediately before the claimants fled Venezuela, the SEBIN demonstrated an intention to investigate the principal claimant for “crimes against public order and against the nation’s independence and security.”[6] SEBIN chose to investigate the principal claimant after he complained about extortion against the [XXX] of which the associate claimant is the president. The adult claimants testified that this investigation shows that Venezuelan authorities have singled them out for political persecution and that their entire family is now at risk.
[26] Country condition evidence corroborates the claimants’ testimony. According to a report by Human Rights Watch, massive demonstrations against President Nicolas Maduro took place in 2017, fueled by discontent with his authoritarian practices and frustration over Venezuela’s humanitarian crisis.[7] The government responded with “widespread and systematic use of excessive force and arbitrary detentions against demonstrators,” as well as “patterns of other human rights violations, including violent house raids, torture and ill-treatment of those detained in connection with the protests.”[8]
[27] The crackdown subsequently extended beyond the protests. The Office of the High Commissioner for Human Rights (OHCHR) has reported “since the end of July 2017, security forces, notably the intelligence services, have continued to use arbitrary and unlawful detentions as one of the main tools to intimidate and repress the political opposition or any person perceived as a threat to the [g]overnment for expressing dissent or discontent.”[9] Security forces including the SEBIN “have subjected detainees to ill-treatment and torture such as electric shocks, severe beatings, rape, suffocation with plastic bags and chemicals, mock executions and water deprivation.”[10] According to a research report prepared by the Immigration and Refugee Board of Canada, sources report that “supporters of the government see Justice First as a “right-wing group” or “coup-mongers” and an “enemy of the government.”[11]
[28] I note that the OHCHR has documented cases of cruel, inhuman or degrading treatment of detainees’ families and the detention of children.[12] This corroborates the adult claimants’ testimony that their entire family could face persecution if returned to Venezuela.
[29] I find the evidence before me is adequate to establish that the principal claimant became a target for investigation by SEBIN due to his political opposition to the Venezuelan government and that all of the claimants now have a well-founded fear of politically-motivated persecution from Venezuelan authorities due to their political opinion.
State Protection
[30] I find that state protection would not be reasonably forthcoming to the claimants in this case.
[31] A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness. The jurisprudence indicates that the test for a finding of state protection is whether the protection is adequate. It is not enough for there to be existing relevant legislative or procedural framework for protection if the police or other authorities are not able or willing to effectively implement those protective provisions.
[32] In this case, when the principal claimant attempted to approach the Attorney General’s office for protection from a police officer who was extorting him, it resulted in SEBIN opening an investigation against the principal claimant for crimes against the state. He received no meaningful protection from the Attorney General’s office.
[33] Country condition evidence indicates that although arbitrary detention and mistreatment of political dissidents is not legal in Venezuela, this behaviour has been condoned by the state and the state has blocked efforts to hold perpetrators accountable for it. According to the
OHCHR, efforts made by the Attorney General’s Office to identify state agents who had perpetuated human rights abuses were blocked by Venezuelan security forces – “particularly the Bolivarian National Guard.”[13] The OHCHR identified instances where evidence about abuses disappeared from case files and cases where security forces allegedly responsible for killing demonstrators were released despite judicial detention orders. The “OHCHR received information on only one case where investigations had led to the opening of the trial of the alleged perpetrators.”[14]
[34] Given that the state is the agent of harm in this case and the country condition evidence indicates that state authorities are unwilling to protect the claimants, I find that state protection would not be reasonably forthcoming for them.
Internal Flight Alternative
[35] I find there is no viable internal flight alternative for the claimants. Venezuelan authorities including the police and the SEBIN are the agents of harm. Venezuela has effective control over the entirety of its own state and there is no evidence before me to suggest that their desire or ability to persecute the claimants would vary from region to region. As such, I find the claimants face a serious possibility of persecution throughout Venezuela.
The Claim Against Colombia
Risk of Harm
[36] I do not find that the associate claimant or the minor claimants face a well-founded fear of persecution or a risk to their lives, a risk of cruel and unusual punishment, or a risk of torture in Colombia.
[37] At the hearing, the associate claimant testified she did not wish to return to Colombia because she does not know anybody there and would have difficulty financially supporting herself and her children. She also testified that Venezuelans living in Colombia face discrimination in housing and employment, and she would be readily identifiable as Venezuelan by her accent.
[38] News articles submitted by the claimants indicate that thousands of Venezuelans have fled their country for Colombia in recent months, with approximately 800,000 Venezuelan migrants (both documented and irregular) currently living there.[15] Some Colombians have expressed xenophobia towards Venezuelans that includes verbal and physical violence, the refusal to rent Venezuelans property, and the refusal to employ Venezuelans.[16] Colombian officials, including the president of Colombia, have denounced xenophobia against Venezuelans and called for tolerance,[17] and the United Nations High Commissioner for Refugees has launched a campaign in Colombia to generate empathy towards Venezuelan migrants.[18]
[39] Counsel submitted there is a serious possibility that xenophobic discrimination would interfere with the associate claimant’s right to obtain housing and employment in Colombia. Counsel pointed out that these rights are listed in the Universal Declaration of Human Rights and that board members should consider such international instruments when assessing persecution.
[40] To be considered persecution, mistreatment must be sufficiently serious. To determine whether mistreatment qualifies as “serious”, I must examine: 1) what interest of the claimant might be harmed; and b) to what extent the subsistence, enjoyment, expression or exercise of that interest might be compromised. While the experiences of persons with similar profiles must be considered in determining whether ill-treatment is systemic, each case must be determined on its own facts.
[41] I agree with counsel that the right to work and the right to housing are important interests and that in certain cases, inference with those rights can constitute persecution. However, I do not find the evidence adequate to establish that the associate claimants or the minor claimants would face a serious possibility of persecution in Colombia for the following reasons.
[42] In the present case, neither the principal claimant nor the associate claimant indicated that they feared persecution in Colombia while preparing their Basis of Claim forms. To the contrary, they explicitly said in their narrative that they decided not to move to Colombia because they feared the principal claimant might be deported from there to Venezuela. According to their narrative,
While we were considering ways to leave Venezuela, we considered whether Colombia might be an option. […] We didn’t want to take the chance of applying for a residency permit [for the principal claimant] and waiting for months only to find out it had been refused. […] In the meantime, our lives would be in danger in Venezuela. We needed to go somewhere where we knew we would be safe, and protected against removal to Venezuela. It was clear that that [sic] this would not be the case for [the principal claimant] in Colombia, and [our] family was not willing to be separated.[19]
[43] I sympathise with the claimants’ reluctance to go to Colombia when it was uncertain whether the principal claimant would be able to obtain legal residency there. Given that they have a well-founded fear of persecution in Venezuela, it is reasonable that they would choose not to live in Colombia to avoid the possibility of the principal claimant being deported back to Venezuela. However, there is nothing in the claimants’ narrative to indicate that they ever feared persecution within Colombia.
[44] I have also considered the associate claimant’s personal circumstances. The associate claimant holds a [XXX] in [XXX] and successfully established a [XXX] business in Venezuela. According to the claimants’ Basis of Claim narrative, this business “thrived” until the [XXX] field became subject to a state monopoly in Venezuela.[20] Although the associate claimant and her children could be identified as Venezuelans by their accents, they also hold the benefit of Colombian citizenship. If returned to Colombia, they would not be crossing the Venezuelan land border with many irregular migrants seeking amnesty, shelter and employment while lacking citizenship status in Colombia. Although they may face xenophobic discrimination, I do not find that their ability to find housing or work would be compromised to a level that rises to persecution.
[45] For these reasons, I find the evidence insufficient to demonstrate that the associate claimant or the minor claimants would face a serious possibility of persecution in Colombia.
CONCLUSION
[46] I find that [XXX] is a Convention refugee and I accept his claim.
[47] I find that [XXX] and [XXX] are not Convention refugees nor persons in need of protection and I reject their claims.
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Exhibits 2.1, 2.2, 2.3, 2.4, and 2.5.
[3] Exhibit 4, page 88.
[4] Exhibit 1.
[5] Exhibit 5, National Documentation Package, Colombia, 31 May 2019, tab 3. 7: Requirements and procedures for a person born in another country to Colombian parents to acquire citizenship; requirements and procedures for the spouse and child of a citizen to obtain permanent residency; rights and social benefits available … Immigration and Refugee Board of Canada. 9 July 2014. COL104916.E.
[6] Exhibit 4, page 88.
[7] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.10: Crackdown on Dissent: Brutality, Torture, and Political Persecution in Venezuela. Human Rights Watch; Foro Penal. 29 November 2017.
[8] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.10: Crackdown on Dissent: Brutality, Torture, and Political Persecution in Venezuela. Human Rights Watch; Foro Penal. 29 November 2017.
[9] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.
[10] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.
[11] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 4.4: Information on the political party Justice First (Primero Justicia), including membership procedures, structure and leadership at the national level and in Maracaibo (2014-May 2016). Immigration and Refugee Board of Canada. 11 May 2016. VEN105518.E.
[12] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.
[13] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.
[14] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.
[15] Exhibit 4, page 147.
[16] Exhibit 4, page 149.
[17] Exhibit 4, page 150.
[18] Exhibit 4, page 144.
[19] Exhibit 2.1.
[20] Exhibit 2.1.