Citation: 2021 RLLR 48
Tribunal: Refugee Protection Division
Date of Decision: August 12, 2021
Panel: Evan Stringer
Counsel for the Claimant(s): Elanor Rose Andrew
Country: Chile
RPD Number: TB9-01668
Associated RPD Number(s):
ATIP Number: A-2022-01594
ATIP Pages: N/A
REASONS FOR DECISION
[1] This is the decision in the claim for refugee protection of XXXX XXXX XXXX XXXX (the claimant). The claimant alleges to be a citizen of Chile and seeks Canada’s protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).
[2] In assessing this claim, I have considered the Chairperson’s Guideline No. 9 regarding claims based on Sexual Orientation and Gender Identity and Expression, and Guideline No. 4 regarding women facing gender-based violence.
DETERMINATION
[3] For the reasons that follow, I find that the claimant would face a serious possibility of persecution in Chile due to her membership in a particular social group as a lesbian woman. I therefore find that she is a Convention refugee pursuant to section 96 and accept her claim.
ALLEGATIONS
[4] The claimant’s allegations are set out in her Basis of Claim form and attached narrative, as well as the amendments to her BOC narrative (BOC).1 The claimant alleges that she is a lesbian woman. She fears that if she returns to Chile, she will have to hide her sexual orientation, and that, if she does not, she will face physical attacks by skinheads and other strangers, harassment including verbal abuse and threats from strangers, and physical attacks and death at the hands of her cousin. She also fears being deprived of the ability to earn a living in Chile should an employer discover her sexual orientation.
IDENTITY
[5] The claimant’s identity was established by her Chilean passport, a certified true copy of which was provided by the Minister. I am satisfied that the claimant has established, on a balance of probabilities, her identity as XXXX XXXX XXXX XXXX, a Chilean national.
NEXUS
[6] There is a clear nexus between the harm the claimant fears and a Convention ground, namely her membership in a particular social group as a lesbian woman. Accordingly, this claim has been assessed under section 96.
CREDIBILITY
[7] Overall, I found the claimant to be a very credible witness with respect to the core elements of her claim – namely, her identity as a lesbian woman, her past experiences of being threatened, verbally abused, harassed, and chased by skinheads in Chile on account of her sexual orientation, her experience of being fired from her XXXX XXXX XXXX and the threats of violence from her cousin, XXXX I did not note any inconsistencies, contradictions, or omissions going to the core of the claim.
[8] The claimant provided credible testimony about her profile as a lesbian woman. She easily and spontaneously described her early experiences of becoming aware of her sexual orientation and provided detailed testimony in response to all of my questions about her past same-sex relationships, including with her former spouse. In support of her identity as a lesbian woman, the claimant also provided numerous supporting documents, including her marriage and divorce certificates pertaining to her marriage to DR, many photos of the claimant and DR, letters from LGBTQ community organizations speaking to their knowledge of her involvement with the LGBTQ communities in Montreal and in Toronto, and letters from friends and former colleagues in both Canada and Chile speaking to the claimant’s sexual orientation. I found these documents to be reliable and give them full weight in further supporting the claimant’s identity as a lesbian woman.
[9] The claimant provided detailed testimony about her experiences as a lesbian woman in Santiago, Chile. She stated that, based on her own experiences, she fears that she will suffer violence and harassment if she is open about her sexual orientation in Chile.
[10] When I asked the claimant about day-to-day examples of having to hide her sexual orientation, she stated that, for example, in Chile she could not hold her same-sex partner’ s hand in public like heterosexual couples can, and that she had to adjust her style of dress, hair, and makeup in an effort to avoid being identified as a lesbian and subjected to violence and harassment in public in Santiago, where she resided. The claimant described a few occasions where her and her partner did hold hands in public and testified that on every such occasion, they would have homophobic comments shouted at them, as a result of which they stopped holding hands. Based on these experiences, she stopped holding her partner’s hand in public. She also described how after getting a short hair cut in 2017, she was yelled at with homophobic slurs. In an effort to compensate and avoid further danger, the claimant described how she began wearing more feminine makeup and clothes, instead of her usual more “tomboy” style to try to avoid being perceived as a lesbian.
[11] The claimant testified that there is a “gay village” in Santiago where she used to go out with friends some evenings. She explained that, unlike the gay village in Toronto, there are no Pride flags outside of LGBT establishments as this would make them a greater target for attacks. She further explained that while she felt it was important to visit this neighbourhood in order to experience a sense of community, she did not feel safe when she visited it. She testified that every time she went out in the gay village she was afraid of being chased and attacked by skinheads. She described one occasion around 2015 when, after leaving a gay bar in this neighbourhood, a group of men waiting outside began to yell homophobic slurs at the claimant and her friends and chased them down the street. She was able to get away, but two of her friends were punched in the face. When asked if she considered reporting that incident to the police, the claimant stated that she and her friends didn’t even consider it because they don’t trust the police and didn’t believe they would do anything.
[12] The claimant also provided consistent and detailed testimony about her experience being fired from the XXXX XXXX XXXX in Santiago in 2015. She explained that one of the mothers of the children had learned that the claimant was a lesbian and told her employer that she would be withdrawing her child if the claimant were allowed to continue working there. The very next day, the claimant was fired without any reason being offered. One of the claimant’s co-workers with whom she maintained a friendship, told her that it was understood among the employees that she had been fired in order to appease the parent who had complained about her sexual orientation. I found the claimant’s testimony in this regard to be credible and sincere.
[13] She also explained how she had gone to the local police station in her neighbourhood in Santiago to file a complaint based on prohibited discrimination. She explained that while she did have concerns about the police, her livelihood was on the line, and she did not know what else to do, so she decided to try approaching the police for help. She testified that the police ridiculed her, stating that a lesbian was not fit to be around young children, and that her employer had good reason to fire her. They did not take any report or refer her to any other agency or otherwise direct her to any assistance.
[14] The claimant also provided detailed and consistent testimony about her fear of harm from her cousin, XXXX. She explained that since her family found out about her sexual orientation, her cousin, XXXX has subjected her to verbal abuse and threats. Things came to a head in January 2018 when she was already outside of Chile when the claimant’s cousin directed a tirade of homophobic insults and threats at her and her partner, threatening to seriously harm them if they returned to Chile. More recently, in February 2020, the claimant was informed by her mother that she had run in to XXXX who made further homophobic threats against the claimant and renewed his threat to kill her if she returned to Chile.
[15] The claimant described her fear of her cousin, explaining his history of being arrested and released from prison for having beaten ex-girlfriends on multiple occasions, as well as her belief that he is associated with neo-Nazis, based on him having bragged to her in the past about he and his friends beating up gay men in Santiago’s gay village. When asked whether she could obtain protection from the police from her cousin, she stated that she did not believe they would help her, and, based on her past experiences with the police, and those of other LGBTQ individuals, she fears they might be a further danger to her if she approached them for help.
[16] In support of the harm the claimant fears from her cousin, she provided copies of the Facebook messages from her cousin in January 2018, detailing the threats against her and her former partner as alleged. She also provided a signed letter from her mother, accompanied by her photo identification card, describing the threats XXXX made against the claimant to her in February 2020, and her fear that he will follow through on those threats if the claimant returns to Chile. I found these documents to be reliable and give them full weight in supporting the claimant’s fear of harm at the hands of her cousin XXXX.
[17] The claimant provided letters from former school mates, co-workers, and members of the LGBTQ community in Canada and Chile speaking to their knowledge of harassment and bullying she experienced in school on account of her sexual orientation, their knowledge of her having been fired because of her sexual orientation, and their own experiences of enduring homophobic violence in Chile in recent years for which the police did not provide them assistance. I found these documents to be reliable and give them full weight in supporting the claimant’ s past experiences in Chile and her fear of persecution.
[18] Based on the claimant’s credible testimony, and the reliable supporting evidence she provided, I find that she has established, on a balance of probabilities, her identity as a lesbian woman, her experiences of violence, threats, and harassment related to her sexual orientation from skinheads, strangers, and her cousin, XXXX as well as her loss of employment in 2015 and subsequent experience with the Chilean police. I further find that the claimant has established a subjective fear of persecution in Chile for reason of her identity as a lesbian woman.
OBJECTIVE BASIS
[19] The ongoing death threats against the claimant by her cousin XXXX support the objective basis of her fear of physical and verbal attacks in Chile. The claimant’s fear of being physically attacked and harassed in Chile because of her sexual orientation as a lesbian woman, both by her cousin, as well as by skinheads and other strangers, is supported by the documentary evidence before me in the National Documentation Package (NDP) for Chile2 and in counsel’s country conditions package.3
[20] The U.S. Country Reports on Human Rights Practices for Chile states in its executive summary that “Significant human rights issues included reports of arbitrary or unlawful killings; torture by law enforcement officers; violence against lesbian, gay, bisexual, transgender, and intersex persons; and violence against indigenous persons.”4 [emphasis added]. The report states that violence against LGBT individuals continues and details two notable cases where gay men were abused by the police. The report also indicates that law enforcement authorities appear reluctant to use the full recourse of Chile’s anti-discrimination laws.
[21] Other sources in the NDP indicate that despite the existence of progressive laws and attempts to stem discrimination, hate crimes continue and homophobic murders are still being recorded.5 Movilh, a Chilean LGBTQ rights organization, reports that in recent years, attacks against LGBTQ people have climbed to record numbers. In their 2021 report, they highlight 1,266 abuse cases against the LGBTI community reported in 2020.6 Their 2020 report indicates that over seventy-five percent of eight-hundred and fifty lesbian women surveyed had suffered harassment on the street because of their sexual orientation.7
[22] The claimant’s own experiences of being yelled at on the street by individuals who suspected she was a lesbian, are suggestive of an undercurrent of a homophobic society. While the documentary evidence indicates that same-sex relationships were decriminalized in 1998 and a civil union comparable to marriage was legalized in 2015, the claimant’s own experiences and those evidenced in the documentary evidence indicate that Chilean society has not yet progressed to a point where sexual minorities can live openly and free of potential persecution and violence.
[23] Another study indicates that since the high-profile homophobic murder of Daniel Zamudio in Santiago in 2012, which prompted new hate crime legislation and anti discrimination measures, only twenty-three percent of five-hundred anti-SOGIE discrimination lawsuits filed as of 2020 went to trial, and of those, a majority have been decided against the victim.8 Despite the introduction of new legislative tools to fight homophobic crimes in Chile, reports of hate crimes against LGBTQI people have increased since the measures were introduced. Complainants have registered thirty-four new potential hate crimes, but the anti discrimination law has proven ineffective to deliver justice: it has only been applied on four occasions and there haven’t been reparations of any sort.9
[24] Counsel’s country conditions package includes numerous examples in the last few years of murders and violent attacks against lesbian women in Chile in various parts of Santiago, as well as in other cities and rural areas throughout the country. A 2019 article from Le Monde Diplomatique indicates that “small groups with fascist leanings regularly – and violently – attack feminists, lesbians, and transgender people”.10 Another 2019 article describes a young lesbian couple who were violently attacked while walking home at night holding hands in Santiago’s “gay village” of Bellavista.11 Other reports from 2019 describe attacks against LGBTQ individuals in Santiago and in other cities, wherein the victims were branded with swastikas.12
[25] The claimant’s fear of being deprived of her ability to earn a living in Chile is supported by her past experience of having been fired from her XXXX XXXX because of her sexual orientation in 2015. While this discriminatory treatment does not in and of itself amount to persecution, I have considered it as an additional factor in considering whether the harm feared, considered in its totality, amounts to persecution. The claimant’s fear of being further subjected to employment discrimination in Chile is further supported by the documentary evidence.
[26] Counsel’s country conditions package includes two high-profile cases of lesbians losing their employment in the field of education due to their sexual orientation: one a high school teacher13, and one a university faculty head.14 In the case of the school teacher, her case was rejected by the San Miguel Court of Appeals as well as by the Supreme Court of Justice. It was not until the matter was brought before the Inter-American Commission on Human Rights (IACHR) that it was determined that her dismissal was discriminatory.
[27] Taking into account the ongoing death threats from her cousin, her past experiences of being shouted at, chased, and threatened with violence, and losing her XXXX, as well as the documentary evidence indicating that, despite seemingly progressive laws, violence and discrimination against lesbians in Chile remains a serious concern, I find that the claimant’s fear of persecution in Chile is objectively well-founded.
[28] I find that the harms the claimant fears should she live openly in Chile as a lesbian woman – violence and harassment from skinheads and other strangers, violence including murder from her cousin XXXX and dismissal from her job – considered together – amount to persecutory treatment. Accordingly, I find that the claimant would face a serious possibility of persecution in Chile as a lesbian woman.
STATE PROTECTION
[29] For the reasons that follow, I find that the claimant has rebutted the presumption of state protection with clear and convincing evidence. In coming to his finding, I have considered Guideline 9, which states that where individuals with diverse SOGIE do not disclose their SOGIE or report incidents of violence out of fear of further reprisal from the state or non-state actors, it may be unreasonable for them to approach the state for protection. It also states that in countries where decriminalization of same-sex relation has recently occurred, decision-makers must carefully assess whether state protection is adequate at the operational level.
[30] The claimant testified that on the one occasion where she sought assistance from the police in Santiago in 2015, she was mocked and insulted because of her sexual orientation. The claimant further testified that with respect to the threats made against her by her cousin, not only does she not believe that the police will not help her, she also fears based on her own experiences and those of others that she may face further abuse from the police. She is therefore reluctant to confirm her belief that the police will not protect her.
[31] As cited above, the U.S. Department of State includes recent examples of police abuses against LGBTQ individuals. Further examples of police abuse of members of the LGBTQ community are highlighted in counsel’s country conditions package. For example, a 2019 article in the Advocate15 describes cases of gay men arrested after being caught up as bystanders to a protest action, and being subjected to homophobic slurs, stripped naked and sexually assaulted, beaten, and hit on the head until they referred to themselves by a homophobic slur. In both cases, when the officers learned that the individuals were gay, the homophobic slurs and violence began. The article also reports on the case of a prison officer who was denounced for physically abusing five LGBTQ individuals at a Santiago penitentiary because of their sexual orientation. These types of incidents, considered alongside the claimant’s own experience of being mocked by the Chilean police, are indicative of a homophobic attitude that appears to be well-entrenched in the Chilean police force.
[32] A 2019 BBC article16 about a string of violent attacks and murders of lesbian women in Valparaiso, as well as attacks against lesbians in Santiago, describes the pervasive distrust of the police by lesbian women in Chile. The report notes that after the BBC produced a report about one homophobic attack, the police arrested two men in relation to the case, which was viewed as a shock to members of the community. The BBC reports that, “Lesbian activists tell the BBC that the arrest was unexpected, even though there was CCTV footage and the attackers were known to the victim. Generally, they say, lesbophobic violence goes unpunished.”
[33] The BBC reports that lesbian activists set up a WhatsApp number called the Linea Violeta (the Violet Line) in 2019, which received more than one hundred reports of violence or intimidation in a month, but none were reported to police because the callers saw no point – they were convinced no action would be taken.
[34] The 2019 Advocate article17 provides a recent example, reporting that in June 2019 a gay couple who had been physically assaulted by a co-worker reported the attack to the police, who refused to help, with one officer stating, “Imagine what disease you’re carrying” upon noticing that one of the men was bleeding.
[35] The documentary evidence cited throughout these reasons indicates that there is a culture of homophobia within the Chilean police forces, including instances of violence against LGBTQ individuals, that they are reluctant to enforce existing anti-discrimination laws, and that members of the LGBTQ community rarely report attacks against them to the police for fear of further abuses and out of a belief that the police will not help them. Based on the documentary evidence before me, as well as the claimant’s own credible experiences, I find that the claimant has rebutted the presumption of state protection and that adequate state protection would not be available to her as a lesbian woman in Chile.
INTERNAL FLIGHT ALTERNATIVE
[36] Based on the country evidence highlighted throughout these reasons, the type of harm the claimant fears as a lesbian woman, and the lack of adequate state protection in Chile for LGBTQ individuals, exists throughout the country, and is in fact notably worse in some areas outside of Santiago, the claimant’s home city. Accordingly, I find that the claimant would face a serious possibility of persecution throughout Chile, and that there is no viable internal flight alternative available to her in Chile.
[37] Because the claimant would face a serious possibility of persecution throughout Chile under the first prong of the IFA test, it is not necessary to proceed with an analysis under the second prong.
CONCLUSION
[38] Having carefully considered all of the evidence before me, I find that the claimant would face a serious possibility of persecution in Chile due to her profile as a lesbian woman. Accordingly, I find that she is a Convention refugee pursuant to section 96 of the IRPA and accept her claim.
(signed) Evan Stringer
August 12, 2021
1 Exhibits 2, 4, 7.
2 Exhibit 3.
3 Exhibit 9.
4 Item 2.1, NDP for Chile.
5 Item 6.1, NDP for Chile.
6 Exhibit 9, p. 74.
7 Exhibit 9, p. 76.
8 Exhibit 9, p. 71.
9 Ibid.
10 Exhibit 9, p. 27.
11 Exhibit 9, p. 40.
12 Exhibit 9, pp. 36, 50, 63.
13 Exhibit 9, p. 48.
14 Exhibit 9, p. 46.
15 Exhibit 9, pp. 78-87.
16 Exhibit 9, p. 1-20.
17 Supra Note 15.