2023 RLLR 191

Citation: 2023 RLLR 191
Tribunal: Refugee Protection Division
Date of Decision: April 11, 2023
Panel: Brittany Silvestri
Counsel for the Claimant(s): Amedeo Clivio
Country: Venezuela
RPD Number: TC2-34177
Associated RPD Number(s): N/A
ATIP Number: A-2024-01010
ATIP Pages: N/A

DECISION

[1] MEMBER: This is the decision of the Refugee Protection Division of the Immigration and Refugee Board in the claim for protection made by XXXX XXXX XXXX XXXX, who claims to be a citizen of Venezuela and who is seeking protection pursuant to section 96 and section 97(1) of the Immigration and Refugee Protection Act. In assessing this case, I have considered and applied the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics. 

[2] The allegations are found in full in your Basis of Claim form and accompanying narrative and amendment. In summary, you allege you are a bisexual man in Venezuela, a homophobic society in which you are afraid to express your sexual orientation openly. 

[3] I find that you have demonstrated your personal and national identity as a citizen of Venezuela by your testimony and a copy of your genuine Venezuelan passport found at Exhibit 1. 

[4] I find that you have established a nexus to one (1) of the protected grounds enumerated under section 96 of the Act, specifically your membership in a particular social group as a member of the LGBTQ community. 

[5] When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary. You were straightforward in your testimony. There are no relevant contradictions or omissions that go to the core of your claim. You testified to your experience as a bisexual man. You credibly established your profile as such. Your testimony was internally consistent with the harm you allege you experience as a member of that sexual minority. You describe being unable to freely express your sexual orientation in Venezuela. You felt frustrated, fearful and oppressed, essentially rejected, and that you really could not disclose who you truly were. You testified passionately that in Canada you found a society that welcomed you in a very positive way. You have built friendships and are generally happy to be a part of the LGBTQ community in Canada, that you feel safer in your environment and you can now express yourself freely. 

[6] Documents provided in support of your claim include photos of you attending a Pride event in XXXX, photos of you with friends at various Pride events, a letter of support from your friend, XXXX XXXX (ph), dated XXXX XXXX, 2023, she appears in some of the photos in support of your claim, and a letter of support from XXXX (ph), who has been present through your hearing. He has come with you and was willing to be a witness in support of your claim. All of these documents are relevant, probative and given full weight to support your profile and your claim. 

[7] I had questions regarding the fact that you did not claim asylum in the USA. You answered that you did not request asylum because you were in fear that while you were in the US you realized from your own experiences firsthand that many people are still experiencing harm on account of their sexual orientation, that there was a lot of violence in the United States. In accordance with your BOC, you realized Canada could protect you and provide the protection the LGBTQ community needs. It was with that knowledge that you came and claimed asylum here. I accept your explanation. I do not draw a negative credibility inference from your failure to claim asylum in the USA. 

[8] I am satisfied that your allegations are factual on a balance of probabilities. I find that you have established your profile as a bisexual man, that you possess a subjective fear of returning to Venezuela as a bisexual man and that that harm that you fear rises to the level of persecution. 

[9] On the matter of well-foundedness, I find you have demonstrated a well-founded fear of harm as a bisexual man in Venezuela. There are no legal protections for SOGIESC persons in Venezuela. There are no protections under anti-discrimination laws. The objective evidence indicates that the Venezuelan society is vehemently homophobic. Violent incidents occur regularly against members of the SOGIESC community throughout the country. Also, Counsel did provide articles and news reports in support of these country conditions. 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 percent of SOGIESC persons experience discrimination due to social, cultural and religious practices, and that is in their own homes. SOGIESC persons must hide their relationships and their identities as people or they face discrimination, harassment, ridicule and violence. For these reasons, I find that you have a well-founded fear of harm in Venezuela with clear and convincing evidence. NDP references in support of that are Item 6.1, 6.2. 

[10] I find the state is unwilling and unable to protect you. Most SOGIESC persons in Venezuela do not report discriminations or act of violence to the police as there is a general lack of confidence in the rule of law in 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 and that, again, is Item 6.2. 

[11] There is no place in Venezuela where SOGIESC persons are not physically attacked and ostracized for who they are. If you cannot live openly and obtain work or housing, I therefore find there is no internal flight alternative available to you. This is the case across all of Venezuela. 

[12] Therefore, for all those reasons, I find you are a Convention refugee and I accept your claim. 

——— REASONS CONCLUDED ———