2023 RLLR 111

Citation: 2023 RLLR 111
Tribunal: Refugee Protection Division
Date of Decision: February 22, 2023
Panel: Tiara Stiglich
Counsel for the Claimant(s): Ameena Sultan
Country: Venezuela
RPD Number: VC2-11434
Associated RPD Number(s): N/A
ATIP Number: A-2024-00593
ATIP Pages: N/A

DECISION

[1]         MEMBER: So this is the decision of the Refugee Protection Division in your claim. So I will say your legal full name as well. So XXXX XXXX XXXX XXXX or also known as XXXX (ph). I have considered your testimony and the other evidence in the case and I am ready to give my decision orally. So you claim to be a citizen of Venezuela and you are claiming protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. In coming to the decision, I have also considered a Chairperson’s Guidelines number 9 which are proceedings before the Board involving sexual orientation, gender identity, expression and gender characteristic or sex characteristics. And ultimately, my decision is that I find that you are Convention refugee as you have a well-founded fear of persecution in Venezuela. 

[2]         CLAIMANT: Thank you. 

[3]         MEMBER: You are welcome. Okay. So from here on XXXX, I will just now read the full — rest of the decision, which will explain why I have made a positive decision. So this is where the interpreter will not do exact interpretation but instead she will take some notes and she will give a summary to you at the end. So Madam Interpreter, if I am speaking too quickly, please just let me know and ask me to slow down. So that way you can take the notes that you need to take. Okay? Okay. So this is a continuation of the reasons. And so I will also briefly note that the Basis of Claim form and the addendum to the narrative, that they were not signed by you, the claimant. However, at the hearing, Counsel for you confirmed that you had recently signed both of these or all of these documents, but had not had the opportunity to send those in to the RPD yet. You and your Counsel, both confirmed that the signed versions of the Basis of Claim form and the narratives were the exact same and that no changes had been made. You confirmed that you had signed those documents, you had submitted them and that they were interpreted fully to you so you could understand the contents and you confirmed that all of the information in those documents were complete, true and correct. 

[4]         I will briefly summarize your allegations. You were born as a male. But since you were very young, you have identified as a female. You have at the very least already begun your transition to a female and you identify as a trans woman. Your fear discrimination, harassment, violence and even death at the hands of Venezuelan police and also general society by reason of your gender identity. You described varying instances of verbal, physical and even sexual abuse that you endured at the hands of the police and also general society members throughout your life. You left Venezuela for the first time in XXXX 2017 and you went to the Dominican Republic. You then returned to Venezuela after an approximate XXXX (XXXX) month period. You went then to then go live in Peru in XXXX of 2018 and you remained there for approximately two (2) and a half to three (3) years without any kind of permanent status. You then went to Mexico in XXXX 2021 and you remained there for XXXX (XXXX) months trying to cross the border into the United States so that you can reach Canada. You tried to cross the border into Canada in XXXX 2021. However, the border was closed because of the Covid-19 pandemic. You then finally were able to cross when the border reopened in XXXX 2021 and you made your claim for protection. I find that you have established your identity as a citizen of Venezuela on the balance of probabilities by a copy of your Venezuelan passport, which is found at Exhibit number 1.

[5]         I will now turn to the issue of credibility. I have XXXX, that you are a credible witness, and I therefore believe what you have alleged for your claims. You testified in a straightforward manner, and there were no material inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. You told me about how you first started to feel like you were not living in the right body when you were very young. You explained that you lived openly and you did not hide who you were or how you felt. You told me about how you were bullied, harassed and you were even physically abused in school by the other children and how you were not able to obtain employment due to your physical appearance and how you would dress. You stated that you would dress in clothes that which were more fitting to your feeling of being a woman and that you would wear makeup and you would grow out your hair. You were only able to make money to earn a living by working as a XXXX XXXX, XXXX XXXX and to XXXX XXXX XXXX. This work was not actually legal in Venezuela, but it was very common. These XXXX would often have to pay bribes to the police to continue working, which you also had to do. However, you said that you were treated differently from these other XXXX because of your appearance. The police would insult you, harass and even beat you. They would take the bribe money and all of your earnings and even your product. They would detain you without charges. Also, other than accepting these bribes, they did not do this, any of these behaviors with any of the other vendors because they were considered “normal”. You told me details beyond the Basis of your Claim form, thereby lending further credibility to your allegations. You told me about how you finally told your mother, how you had been feeling. You told me that you liked a boy in your class and very naively told him your feelings. In response, he and his friends beat you up and harassed you. The parents were called to the school. That is when you told your mother how you had been feeling. 

[6]         At first, your parents responded by seeking you to have some medical and XXXX treatment. But through this therapy, it was confirmed that this is indeed how you felt. Your family has therefore accepted you from that moment on. You also told me about what happened to you when you tried to renew and get your passport. As you lived openly as a trans woman, you dressed not as what a man would typically or stereotypical dress like. You had long hair and you wore makeup. You said that when you went to get your passport, you were forced to cut your hair, take your makeup off and to dress in men’s clothing in order to even get your passport. You explained that you had always wanted a family and knew that by doing the gender affirming surgery, that this may not be possible for you. So you and a close friend of yours decided to have a baby together, but you were never actually together as a couple. You also provided documents in support of your claim. You provided a letter from your son’s mother confirming that you were never in a romantic relationship together. You provided a letter from XXXX XXXX, which is an agency in Toronto that serves the LGBTQ2S community where they confirmed that you accessed their services and you completed a settlement needs intake in XXXX 2022. You also provided letters from two (2) friends here in Canada who confirm that they know you as a trans woman. You also provided 2 letters of support from your boyfriend here in Canada, who confirms his relationship with you and that you are a trans woman. 

[7]         You provided various photographs of your daily life, including with your boyfriend, which not only show you as a trans woman, but also they are consistent with you being in a relationship with him. These are all located at Exhibit 5 and 8. I have no reason to doubt the authenticity of these documents, and I place high weight on them. I find on the balance of probabilities, XXXX, that you are a trans woman. I find that what you fear constitutes persecution, and that the persecution has a nexus to the Convention ground of your membership in a particular social group, namely being a trans woman. I will also briefly comment on your time spent in the Dominican Republic, Peru, Mexico and the United States. You told me that in each country, you approached a lawyer to get some advice about how to claim for protection. In each of the countries, you were advised that being a trans was not something to fear in your home country and therefore, it was not an acceptable reason for you to claim protection. You were even told in the Latin American countries that you either had to leave the country or that you needed to fix your problem. 

[8]         You told me that the reason why you spent nine (9) months in Mexico when you were trying to transit through into Canada is because you did not have a visa and you could not fly direct. You had to cross the border from Mexico into the United States. You said that you attempted this sorry multiple times but each time you were denied at the border and returned back into Mexico. You did not have the money to continue doing this because each time that they turned you away, you had to start for scratch. So you had to work to make more money to try to cross the border again. In the United States, you said that you were turned away because the border was closed due to Covid-19. But you returned as soon as you were able to once the border reopened. I do not find your explanations to be unreasonable. You went and you obtained legal advice and you were given some unfortunate or negative news. You believe the advice that you were given by these professionals. I do not make negative credibility inferences from this. 

[9]         I have considered the country condition documentation on Venezuela. Although same sex relations are not illegal in Venezuela, the level of discrimination against sexual minorities, including trans, people is significant and homophobia and transphobia is widespread. The National Documentation Package or the NDP at Item 2.1 states that local police and private security forces allegedly prevented LGBTQI persons from entering malls, public parks and even recreational areas. NGOs have reported incidences of bias motivated violence against LGBTQI persons, and Item 2.4 states that although discrimination based on sexual orientation is banned, LGBTQI plus Venezuelans face what is called “widespread intolerance” and are occasionally even subjected with violence. NDP 6.1 reports that high ranking officials have made homophobic statements or have publicly used discriminatory language against LGBTQI persons without consequences despite the constitutional law against hatred for peaceful coexistence and tolerance. NDP 1.7 notes that even though there’s no legislation that criminalizes homosexuality, there is also no explicit legislation that protects the LGBTQI population. It is reported that Venezuelan authorities in particular are responsible for discrimination against LGBTI people in Venezuela. 

[10]      NDP 1.6 further reports that law enforcement agencies in Venezuela seldom investigate cases of discrimination or violation of rights of LGBTQI person because they are considered to be minorities. Crimes committed against LGBTQI persons are deemed by authorities to be crimes of passion, the result of settling scores or that the LGBTQI person had it coming. NDP 6.1 notes that sexual minorities face discrimination when accessing healthcare. They face obstacles when obtaining employment, and they even dismissed when the employer finds out that they are an LGBTQI plus person. The same report states how police arbitrarily arrest and detain. They commit other abuses as well against people of different sexual orientation or people who are gender diverse. They intimidate, harass, threaten. They even insult and sexually abuse them. Based on the totality of the evidence before me, including your own, long personal history with harassment and discrimination and violence on the basis of your gender identity, I find that you faced serious possibility of persecution by the state and other actors in Venezuela on the basis of your gender identity, namely that you are a trans woman. I find that your subjective fears are objectively well founded and they are forward facing. 

[11]      Regarding state protection and internal flight alternative, unless in complete breakdown, a state is considered presumed to be capable of protecting their own citizens. In this case, it is the state and its agents that are one (1) of the agents of persecution against you. Based on all of the country condition evidence which I have already gone through about the treatment of LGBTQI plus persons, I find that the presumption of state protection has clearly been rebutted in your claim. And for similar reasons, due to the fact that the state is a primary agent of persecution and given that they are in control of the entirety of their territory of Venezuela, I find that there’s is no place within Venezuela that you could safely relocate as a transwoman. Therefore, there is no flight — internal flight alternative available to you. And the conclusion, based on the foregoing everything I have just stated, XXXX, I find that you are a Convention refugee, and I therefore accept your claim. And those are the ends of my reasons. 

——— REASONS CONCLUDED ———