2023 RLLR 182

Citation: 2023 RLLR 182
Tribunal: Refugee Protection Division
Date of Decision: February 24, 2023
Panel: Yvonne Baillie
Counsel for the Claimant(s): Debie Eze
Country: Venezuela
RPD Number: VC2-07912
Associated RPD Number(s): N/A
ATIP Number: A-2024-01010
ATIP Pages: 000026-000038

DECISION

INTRODUCTION

[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX (the claimant), as a citizen of Venezuela and Iran, who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “IRPA”).¹

[2] In hearing and assessing this claim, I have considered and applied the Chairperson’s Guideline 4 on Gender Considerations in Proceedings Before the Immigration and Refugee Board.² I additionally took into consideration the that the claimant suffers from the XXXX’s report submitted indicating XXXX and XXXX.

[3] The claimant was designated a Vulnerable Person following an application by counsel received on 19 September 2022. I ensured that my questioning was done in a sensitive manner, offering frequent breaks to the claimant. I took into account the effect that XXXX may have had on the claimant’s testimony, and considered the claimant’s particular intersectionality in my analysis of her claim.

ALLEGATIONS

[4] The specifics of the claim are set out in claimant’ s Basis of Claim (BoC) form.³ In summary, she alleges that she fears persecution in Iran and Venezuela from her ex-husband, who has been physically and emotionally abusive to her since they were married on XX XX, 2010, and his family, who were likewise abusive to her. She also alleges that she fears persecution from the Venezuelan state on the basis of her political opinion. She alleges that:

· She was part of the Partido Voluntad Popular Cojedes organization in Venezuela for 4-5 years, and spoke out for human rights and equality, and against corruption.

· She met her ex-husband, an Iranian citizen in San Carlos, Venezuela, where they lived and where they were working on a XXXX together. She had been submitting complaints about misuse of public funds, and he advised her to keep quiet for her own safety. She had to leave her job out of fear of retaliation for her complaints.

· They were married in 2010, and he became abusive, both physically and emotionally. They lived in Iran from 2010 – 2012 and then returned to Venezuela.

· She tried to leave him in 2014, but he became violent, and attacked her at her mother’s home. She did not feel she could leave him, and instead they moved back to Iran together. He forced her to convert from Catholicism to Islam on arrival, and got her an Iranian passport. She was kept hostage in her mother-in-law’s house and was treated like a slave by the family. She was forced to wear a hijab.

· She eventually convinced her husband to allow her to go study in Canada, where she arrived in XX of 2020. When the COVID-19 pandemic struck, he was no longer able to come join her as planned. She submitted a refugee claim the following month, and divorced him in XX of 2022.

· He has continually harassed her and her family in Venezuela. He holds a powerful position, XXXX XXXX, and has links with influential people in Venezuelan government and individuals in the Colectivos. He has sent people around her family member’s homes to threaten them and throw rocks. She has been informed that her ex-husband has since returned to Venezuela for work, where he has permanent residency.

DETERMINATION

[5] I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA.

ANALYSIS

Identity

[6] I find that the claimant has established her personal identity, and her identity as a Venezuelan national and an Iranian national, on a balance of probabilities, by a copy of her Venezuelan and Iranian passports.⁴

Credibility

[7] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness. In this case, I have found no reason to doubt the truthfulness of the claimant. She testified in a straightforward, forthright, detailed, and spontaneous manner. There were no material inconsistencies, omissions, or contradictions between her testimony and the other evidence in this case.

[8] The claimant provided the following corroborative documentation in support of her claim, which I accord full weight:⁵

· Education and employment documentation.

· Marriage certificate and application for divorce.

· Certification of her conversion to Islam in Iran.

· Supporting letters from two colleagues, a friend, her sister, her mother, her godfather and an employee from the Venezuelan Embassy in Iran whom she asked for help.

· 4 police reports from Venezuela.

· A medical report from Venezuela and one from Iran.

· A letter from the Partido Voluntad Popular Cojedes indicating that she was a member and activist in Venezuela.

· Screenshots of threatening messages that XXXX has sent her and her family members.

[9] I have no reason to doubt the genuineness of these documents and I find them highly probative.

[10] I have found the claimant to be a credible witness and I accept her allegations.

[11] I find that she has established, on a balance of probabilities, that her ex-husband has been and continues to be incredibly abusive towards her, and that he continues to search for her in the aim of harming her and potentially killing her.

Nexus

[12] In order to satisfy the definition of a Convention refugee found in section 96 of the IRPA, a claimant must establish that she has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group, or political opinion.

[13] The claimant’s allegations support a nexus to the convention ground of particular social group as a woman fearing gender-based violence. This claim will therefore be assessed under section 96 of the IRPA.

[14] As I have found that the claimant is a Convention refugee on the basis of her gender, I will not analyze her claims on the basis of her political opinion and her religion.

Well-Founded Fear of Persecution in Iran

[15] The objective evidence supports the claimant’s fear of returning to Iran.

[16] The NDP indicates that women are treated differentially in many aspects of Iranian law and the judicial system solely on account of their gender.⁶ Women in Iran are subject to systematic discrimination, and the legal system

recognizes women as dependent upon men and incomplete human beings who need to be supervised and controlled by men and the State. While the IRI Constitution claims to guarantee equality for both genders, women are still treated as second class citizens under the IRI legal system. For instance … under the Islamic Penal Code, the value of a woman’s worth is only half that of a man’s.⁷

[17] The OECD indicates that “according to the [Iranian] Civil Code, article 1105, ‘the position of the head of the family is the exclusive right of the husband’ and, as a consequence, women are obliged to obey their husbands.”⁸ Married women are not allowed to choose where they live, as they must live where their husbands choose.⁹

[18] Domestic violence is not prohibited by law, and authorities consider abuse in the family to be a private matter. Domestic violence is rarely publicly discussed, and there are no official statistics on the matter.¹⁰ Likewise, there are no official statistics on rape in the country. Rape is not classified as a distinct crime in Iran’s Islamic Penal Code, and marital rape is not criminalized. ¹¹

[19] The evidence likewise confirms that Iranian women are subjected to a dress code which curtails their freedom of expression and renders them vulnerable to violence from state and non state actors.¹²A Response to Information Request (RIR) in the NDP on dress codes in Iran says all women irrespective of their religion are required to cover their hair, the skin above their wrist or ankle, or below the neck.¹³ They must conceal the contours of their body in public, and must wear a hijab. According to sources, there is actually no legal definition of what constitutes a proper hijab, which makes enforcement arbitrary and unpredictable. This puts women at risk every single time they step out of their house. According to this RIR, the policing of women’s bodies is not even confined to the state. Iran’s laws have enabled not only state agents but other citizens who feel they have a duty and a right to enforce the Islamic Republic’ s values to harass women in public.

[20] The claimant has been victim of extreme domestic and familial violence from her ex- husband and his family in Iran. She does not wear a hijab here in Canada, and was forced to wear one against her wishes in Iran. I find the country evidence indicates the treatment that the claimant has experienced in Iran because of her gender, including the policing of her body and choices by the men around her, is commonplace for women in Iran, and I find that it amounts to persecution.

[21] I find that the claimant’s fear of persecution in Iran on the basis of her gender, from her ex-husband, his family, and the state, is well-founded.

State Protection in Iran

[22] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence that state protection is inadequate.

[23] The Gender Guidelines further make it clear that a “contextual and intersectional” approach should be used to assess whether a claimant’s efforts to obtain state protection were reasonable, including their gender; age; education level; support network; experience of trauma; the profile of the agent of persecution; the nature of the relationship between the claimant and the agent of persecution; previous efforts to obtain state protection and the response of authorities; and country conditions, including cultural and societal norms that prevent and stigmatize reporting of gender-based violence.¹⁴

[24] The Iranian state is one of the agents of persecution in this case. In these circumstances, I find, on a balance of probabilities, that the claimant cannot avail herself of state protection in Iran, and that the presumption of state protection has been rebutted.

Internal Flight Alternative (IFA) in Iran

[25] The test for a viable IFA has two prongs. First, I must be satisfied that the claimant would not face a serious possibility of persecution and that she would not be personally subjected to a risk to life, of cruel and unusual treatment or punishment or danger of torture in the IFA. Second, I must be satisfied that it would not be unreasonable in all the circumstances, including those particular to the claimant, for her to seek refuge there.

[26] Given the state’s authority and control over the entire territory of Iran, I find that the claimant would face a serious possibility of persecution throughout the whole of the country from the state.

[27] The claimant’s ex-husband has likewise demonstrated a continued motivation to pursue the claimant. He has contacted her godfather as recently as months ago, threatening the claimant. He has sent individuals to her sister’s house and her mother’s house to threaten them and throw stones at their houses. He has sent threatening messages to the claimant and her family members on social media, threatening to harm them. If the claimant were to return to Iran, her husband would have the ability to locate her as her spouse, given the laws in that country which render a woman legally subservient to her husband and which demand she live at the same address. I acknowledge that the claimant has divorced her husband here in Canada, but I find, on a balance of probabilities, that this divorce would not be recognized by the Iranian authorities given their restrictive divorce laws. I find that the claimant’s ex-husband has the means and motivation to locate and harm her in Iran. I thereby find that the claimant also faces a serious possibility of persecution throughout the whole of the country from her ex-husband.

[28] As I find that the test for IFA on the first prong of the test, I find that the claimant does not have a viable IFA in Iran.

Well-Founded Fear of Persecution in Venezuela

[29] I likewise find that the claimant’s fear of persecution in Venezuela is well-founded.

[30] Venezuela passed a Law on the Right of Women to a Life Free of Violence in 2007, defining 21 forms of violence against women. This law was reformed in 2014 to include a definition of femicide.¹⁵ The law requires police and hospitals in Venezuela to report domestic violence to judicial authorities. Venezuela has also created a National Council for Depatriarchalizing the State, and uses a National Feminist Training Plan, to provide systematic education, training, and awareness for government officials, promoting gender equality and equity.¹⁶

[31] However, evidence shows that violence against women is a serious problem in Venezuela, that it is widespread and ‘on the rise.’¹⁷ Sources indicate that it is a ‘cultural’ problem in the country. In December 2016, the UN Population Fund (UNFPA) indicated that “50 percent of women in Venezuela have experienced some sort of violence by their partner, including physical violence, and verbal and psychological abuse.”¹⁸ In comparison with the world average, women and girls in Venezuela are 10 percent more likely to be victims of gender-based violence. More than 50 percent of femicides in the country are committed by partners or ex-partners.

[32] There is widespread immunity for perpetrators of violence against women, with 96% of cases that reach courts not resulting in a conviction. There is a lack of awareness amongst women of the resources available to victims of domestic violence, and in practice, police are generally reluctant to intervene in domestic violence cases.¹⁹

[33] The claimant has been victim of domestic violence from her ex-husband in Venezuela.

He lives in Venezuela now, and has permanent residence there. The claimant’s ex-husband is a powerful and influential individual in Venezuela, who has connections to the government and the Colectivos. He has demonstrated his continued motivation to pursue and harm her and her family. He has continually harassed them, sending people to throw stones at the houses of her family members and threatening them.

[34] Considering the country evidence before me, alongside the claimant’s personal experiences and circumstances, I find that the claimant’ s fear of persecution in Venezuela on the basis of her gender is well-founded.

State Protection in Venezuela

[35] The claimant sought state protection twice in Venezuela, and was not provided with adequate protection. Her family members have gone to the police several times since she left the country, and have not been provided with adequate protection. The claimant testified that her husband holds a powerful position in Venezuela, and that he has connections with government and the Colectivos.

[36] As noted above, there is widespread immunity for perpetrators of violence against women, with 96% of cases that reach courts not resulting in a conviction. There is a lack of awareness amongst women of the resources available to victims of domestic violence, and in practice, police are generally reluctant to intervene in domestic violence cases.²⁰

[37] The US Department of State (DOS) report for Venezuela for 2021, indicates that significant human rights issues in the country include the lack of investigation of and accountability for gender-based violence and serious government corruption.²¹They note that laws meant to protect women are often not followed or enforced, there is a lack of due diligence in investigations in gender-based violence cases, and access to justice is limited for victims. According to sources in this report, “government efforts to protect victims of gender-based violence were ineffective or nonexistent.”²²

[38] Based on the evidence before me, including the country condition evidence, and the claimant’s multiple failed attempts to seek protection from the authorities, I find that there is no operationally effective state protection available to the claimant in her circumstances.

Internal Flight Alternative (IFA) in Venezuela

[39] The test for a viable IFA has two prongs. First, I must be satisfied that the claimant would not face a serious possibility of persecution and that she would not be personally subjected to a risk to life, of cruel and unusual treatment or punishment, or danger of torture in the IFA. Second, I must be satisfied that it would not be unreasonable in all the circumstances, including those particular to the claimant, for her to seek refuge there. At the hearing I suggested Maracaibo, Bolivar, and Caracas as potential IFA locations.

[40] In this case, I find that the claimant does not have a viable IFA because I am satisfied that her ex-husband would have the motivation and means to pursue her throughout Venezuela.

First Prong

[41] With respect to motivation to pursue the claimant, given the nature of his relationship with the claimant, the lengthy history of abuse, the fact that the abuse continued after the claimant left Iran, and left him, the escalating nature of his ongoing threats, and his continued harassment of her family in Venezuela, I find it likely that he would be motivated to track-down and harm the claimant. This conclusion is reinforced by the Gender Guidelines, which state that the cycle of violence and coercive control is relevant to whether an agent of persecution has the motivation to locate a claimant.²³

[42] I also find on the balance of probabilities that the claimant’s ex-husband would have the means to locate the claimant throughout Venezuela. He continually harasses her family, threatening them and asking for the claimant’ s whereabouts.

[43] I note that in Zamora Huerta, the Federal Court noted that “[n]ot to be able to share your whereabouts with family or friends is tantamount to requiring the Applicant to go into hiding.”²⁴ I find that it would be unreasonable to expect the claimant to keep her whereabouts hidden from her family if she were to return to Venezuela, as this would be tantamount to expecting her to go into hiding.

[44] In Ali,²⁵ the Federal Court stated that “it would not be reasonable to expect family members to place their own lives in danger by either denying knowledge of the Applicants’ whereabouts or deliberately misleading the [agent of harm].”²⁶ I find that the claimant’s parents could not be reasonably expected to keep her location hidden from the claimant’s ex-husband, as this may put their lives at risk, notably given his history of violent behaviour.

Venezuela IFA Conclusion

[45] I find that the claimant’s ex-husband has both the means and motivation to find and harm the claimant, where she to relocate within Venezuela. I thereby find that the claimant would face a serious possibility of persecution throughout the country, and that the test fails on the first prong. Accordingly, I find that there is therefore no viable internal flight alternative available to the claimant in Venezuela.

CONCLUSION

[46] For the foregoing reasons, I find that the claimant is a Convention refugee pursuant to s. 96 of the IRPA, and I therefore accept her claim.

——— REASONS CONCLUDED ———

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27.

² Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4 on Gender Considerations in

Proceedings Before the Immigration and Refugee Board, 18 July 2022.

³ Exhibit 2.

⁴Exhibit 1.

⁵ Exhibit 4.

⁶ Exhibit 3.1, National Documentation Package, Iran, 30 November 2022, tab 5.1: Beyond the Veil: Discrimination

against women in Iran. Minority Rights Groups International et al. 16 September 2019.

⁷Exhibit 3.1, National Documentation Package, Iran, 30 November 2022, tab 5.13: Country Policy and Information

Note. Iran: Women – Early and forced marriage. Version 4.0. United Kingdom. Home Office. May 2022.

⁸Exhibit 3.1, National Documentation Package, Iran, 30 November 2022, tab 5.6: Islamic Republic of Iran. Social

Institutions and Gender Index 2019. Organisation for Economic Co-operation and Development. 7 December 2018.

⁹ Exhibit 3.1, National Documentation Package, Iran, 30 November 2022, tab 5.6: Islamic Republic of Iran. Social

Institutions and Gender Index 2019. Organisation for Economic Co-operation and Development. 7 December 2018.

¹⁰ Exhibit 3.1, National Documentation Package, Iran, 30 November 2022, tab 5.6: Islamic Republic of Iran. Social

Institutions and Gender Index 2019. Organisation for Economic Co-operation and Development. 7 December 2018.

¹¹ Exhibit 3.1, National Documentation Package, Iran, 30 November 2022, tab 5.18: Access to Justice for Victims of

Sexual Violence in Iran. Iran Human Rights Documentation Center. 29 February 2020.

¹² Exhibit 3.1, National Documentation Package, Iran, 30 November 2022, tab 5.4: Dress codes, including

enforcement (2016-February 2020). Immigration and Refugee Board of Canada. 21 February 2020. IRN200129.E.

¹³ Exhibit 3.1, National Documentation Package, Iran, 30 November 2022, tab 5.4: Dress codes, including

enforcement (2016-February 2020). Immigration and Refugee Board of Canada. 21 February 2020. IRN200129 .E.

¹⁴ Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Gender Considerations in

Proceedings Before the Immigration and Refugee Board, Ottawa, Canada, July 18, 2022, para. 11.5.2.

¹⁵ Exhibit 3.2, National Documentation Package, Venezuela, 29 April 2022, tab 5.2: Bolivarian Republic of