2022 RLLR 89
Citation: 2022 RLLR 89
Tribunal: Refugee Protection Division
Date of Decision: April 6, 2022
Panel: Brittany Silvestri
Counsel for the Claimant(s): Loferne Cuffy
Country: Ecuador
RPD Number: TC1-06431
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A
DECISION
[1] MEMBER: So, I am ready to render my decision orally. This is the reason for the decision of XXXX XXXX XXXX XXXX, a citizen of Venezuela claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, IRPA. The Minister elected not to intervene in this matter on the issue of article 1E exclusion. The allegations in full are contained in the Basis of Claim forms, the BOC found in Exhibit 2.1, and the amendment at 2.2. You are a citizen of Venezuela, born in Venezuela, and a permanent resident of Ecuador, and a person whose sexual orientation and gender identity has caused you to be harmed, targeted, and discriminated against. You cannot return to Venezuela or Ecuador as you risk being harmed for said orientation. You cannot access state protection anywhere in either country. I find that you are a Convention refugee. You have a well-founded fear of persecution in Venezuela and in Ecuador by reason of membership of a particular social group, of someone with a diverse sexual orientation and gender expression. The sexual orientation and gender identity and expression sex characteristics guidelines were in use at the hearing and in the rendering of this decision.
[2] On the matter of identity, you established you are a citizen of Venezuela by reason of your testimony and copies of your Venezuelan passport. These are found in Exhibit 1. On the matter of credibility, you testified to the matters of your claims spontaneously, answering all questions without hesitation. You communicated the trauma, discrimination, and pressures to conform and hide your identity in Ecuador and Venezuela, and how you feel free to live in Canada as yourself. You have described how you meet men in Toronto, the various online platforms available, and how Grindr makes you uncomfortable with the forwardness of its users and overt nudity. You have credibly established your profile as a person with a diverse sexual orientation and gender expression. You feel you can dress and wear your hair as you like, you can sing in higher registers, and are pursuing a career while taking dance lessons in Toronto. You have spoken credibly about the repression of your identity, that you experienced violent oppression at home and in school, and how from a young age, you feared retribution for your failure to conform in regards to your gender expression, and that you feel that you have lost parts of your childhood trying to meet the expectations of society.
[3] You have provided numerous personal documents to corroborate your claim. Photos of you and a young man in Ecuador, letters in support of your claim from family members and friends with firsthand accounts, and records regarding your access in counseling in Canada. These corroborate your allegations, are relevant, and given full weight to support your claim. I have found you to be a credible witness, and therefore, I believe what you have alleged in supported of your claim.
[4] Now, on the matter of the article 1E analysis, section E of article 1 of the Convention provides that the Convention shall not apply to a person who is recognized by the competent authorities in the country in which she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. Thus, the first issue in this analysis is whether you have rights and obligations which are attached to the possession of nationality in Ecuador, one (1) of your countries of reference. I find that you do have these rights. Ecuador’s organic law on human mobility indicates that the rights and obligations of permanent residents in Ecuador are essentially similar to those of its own nationals, including rights of free mobility, education, employment, social security, and access to justice and due process. Once it is established that you have obtained permanent residency in a second country, here, in Ecuador, a case has been made out that you were made a permanent resident in this second country, unless you can rebut the presumption and demonstrate on a balance of probabilities that you have lost the status. I find that on a balance of probabilities, you have not established that you have lost your permanent residency status in Ecuador. There may be an Ecuadorian legal provision that states that one will lose their permanent status, but you have not demonstrated on a balance of probabilities that this law is enforced or has been enforced against you. So, I find you are a permanent resident of Ecuador. The question becomes whether you are at risk of harm in Ecuador. In line with the Federal Court jurisprudence, which suggests that the risk of article 1E countries should be examined, along with the Federal Court decision in Zhang, I will assess the risk of harm that you have alleged against Ecuador before deciding whether you are excluded by article 1E. I find that you have established a well-founded fear of harm in Ecuador without the means to obtain state protection. A well-founded fear of harm has both objective and subjective elements. I find that you have established both types of fear of harm in Ecuador. You establish you lived in two (2) areas of Ecuador, you were threatened by the cult your family belonged to, bullied by teachers and students, and had your integrity violated by an older man. In each location you were outed as gay, abused online, threatened, violently assaulted, subjected to conversion therapy, and taken advantage of by those in positions of power. You were unable to receive state protection as a black gay Venezuelan man. You grew depressed and anxious that you would be irreparably harmed in Ecuador. You soon fled to Canada. You credibly expressed your fear that if you went back, you would be returned to conversion therapy, and that you fear for your life. You have established a well-founded fear of harm in Ecuador.
[5] As read in Item 6.1 and 6.2 of the National Documentation Package for Ecuador, Ecuador stands out amongst the Latin American countries as a strong proponent of policies in favour of lesbian, gay, bisexual, trans, and intersex rights, LGBTI rights. The constitution establishes a wide range of legal protections for those with divergent sexual orientation. Issues surrounding gender identity are prominently debated in national politics. Rights extend beyond the constitution, including important hate crime legislation and state participation in key international and regional human rights agreements. Again, at Item 6.2, while in Ecuador, domestic law establishes the rights of equality and non-discrimination, their effective enforcement has not materialized in practice. There is a deeply rooted structural homophobia in Ecuador, permeating all levels of society, as you have experienced. In Ecuador, cases of mistreatment of LGBTI populations remain a constant. In the study of living conditions and social inclusion of LGBTI population in Ecuador, the statistical results indicate that 70.9% of the population of LGBTI people claim to have experienced discrimination because of their sexual orientation or gender identity, primarily in familial settings. Of the population surveyed. 27.3% reported having experienced violence by law enforcement officials, of which 94% said they were the victims of shouting insults, threats, and ridicule. 45.8% had been arrested arbitrarily by the state authorities. Reporting these abuses to public officials and police officers puts LGBTI people in the delicate situation of making their sexual orientation or gender identity completely visible, which is not what they want. Rather, exposure is something that they want to avoid due to the hatred of those with divergent sexual orientations and gender identities. This makes the abuses and violations of the rights of the LGBTI population go mostly unpunished.
[6] In Item 6.3 of the NDP, the extent of hate crimes committed against LGBTI persons, as well as the daily abuse and rejection of this population, is extreme in Ecuador. This includes the shocking reality about Ecuadorian torture centres for LGBTI, where the goal is to cure those with divergent sexual orientation and gender identities. The existence of these torture centers in Ecuador demonstrates the degree of homophobia in Ecuadorian society. There are as many as 200 to 300 of these conversion centers in Ecuador. They often operate clandestinely within drug and alcohol rehabilitation centers. Those who have escaped from these centers report physical, sexual, and psychological abuse, including rape, other forms of assault, including electric shock treatment, and being exposed to frequent prayers about spiritual correction. This highlights that Ecuadorian society as a whole treads on the rights of adults to be simply who they are as sexual divergent persons with gender identities that are varying. I find that your experiences of harm in Ecuador as a young gay man, along with the objective conditions, demonstrates that you have a well-founded fear of harm in Ecuador.
[7] On the matter of state protection and internal flight alternative, while Ecuador’s constitutions, laws, and regulations are stellar in terms of protections for sexually and gender-diverse individuals, in practice, state enforcement authorities who arrest LGBTI persons fail to protect them. As well, the people of Ecuador tend to be homophobic. This demonstrates that in fact, there is inadequate state protection in Ecuador. The SOGIESC guidelines specifically addresses these issues. The guideline says that the criminalization of same sex relations or the introduction of a new law, programs, or other government actions designed to improve the situation of individuals with diverse SOGIESC, that is the acronym for the guideline, in a country, need to be carefully assessed to determine whether state protection is adequate at the operational level. In these cases, decision makers need to examine the degree of actual implementation, the effectiveness, and the durability of these legislative or other improvements in light of how state actors and general society continue to treat individuals with diverse SOGIESC. After considering the objective documentary evidence, I find on a balance of probabilities that adequate state protection would not be available to you in Ecuador. Although Ecuador has a legal framework providing LGBTI individuals, in practice, protection, there is a lack of meaningful implementation, and discrimination persists, which hinders individuals from exercising their rights. The objective documentary evidence refers to legal advancements, but again, a lack of enforcement and gaps between legal protections and the lived realities of LGBTI individuals. It refers to individuals experiencing discrimination and violence by law enforcement officials. The issues raised in the guidelines describe Ecuador. Ecuador has many laws providing protections to the SOGIESC communities. Nonetheless, as shown as in the documents, particularly the conditions documents provided by your representatives in evidence, it is extremely dangerous to be found out to be a SOGIESC person in Ecuador. The evidence that that discrimination, physical violence, harassment, and police brutality are evident against the SOGIESC community in all parts of Ecuador. So, as such, I find that you have rebutted the presumption of the state protection in Ecuador.
[8] There is nowhere that you could live in Ecuador with adequate state protection as a gay man. You have lived in a small town and a large city. The experience of homophobia and lack of state protection existed in both locations and does throughout the country. I thus find that considering the above, there is no internal flight alternative available to you. So, I find you are not excluded from the protection pursuant to article 1E of the United Nations Convention regarding the status of refugees.
[9] Going to turn now to Venezuela. I find that you have demonstrated you have a well-founded fear of harm as a gay man in Venezuela. There are no legal protections for SOGIESC persons in Venezuela. They are not protected by anti-discrimination laws. They cannot marry or adopt children. You were not out as a gay man in Venezuela on account of your tender age when you left. However, the analysis is forward-looking. You were asked what you fear. You communicated that you fear risk of harm or death, as you cannot change the things that are intrinsic to you, and it is unfair that you would be targeted for harm and discriminated against on the basis of your innate characteristics. I find on a balance of probabilities, in light of your experiences in Ecuador and your status as a SOGIESC person, you have a subjective fear of harm.
[10] According to the NDP for Venezuela Tab 6.1, 3.1, and 3.2, the objective evidence indicates that Venezuelan society is vehemently homophobic. Violent incidents regularly occur against members of the SOGIESC community throughout the country. Venezuelan homophobia extends to all parts of society, including in employment, education, housing, and social settings. It is essentially everywhere. The evidence also indicates that 75% to 80% of SOGIESC persons experienced discrimination due to social, cultural, and religious practices in their homes. SOGIESC persons must hide their relationships and their identities as people, or they will face discrimination, harassment, ridicule, and violence. For these reasons, I find you have a well-founded fear of harm in Venezuela with clear and convincing evidence. I also find that the state is unable or unwilling to protect you. Most SOGIESC persons in Venezuela do not report discrimination or acts of violence to the police, as there is a general lack of confidence in the rule of law Venezuela. More particularly, the police do not protect SOGIESC persons in Venezuela. The police, in fact, have been known to attack and detain SOGIESC persons at times. This is found in NDP Item 6.2. There is no place in Venezuela where SOGIESC persons are not physically attacked and ostracized for being SOGIESC persons. They cannot live openly and work or obtain housing. I therefore find that there is no internal flight alternative available for you.
[11] So, in conclusion, based on the foregoing analysis, I conclude that you are a Convention refugee, and therefore, I accept your claim.
——— REASONS CONCLUDED ———