2023 RLLR 206
Citation: 2023 RLLR 206
Tribunal: Refugee Protection Division
Date of Decision: November 8, 2023
Panel: Dodie Sobretodo
Counsel for the Claimant(s): N/A
Country: Venezuela
RPD Number: TC3-36312
Associated RPD Number(s): TC3-44480
ATIP Number: A-2024-01010
ATIP Pages: N/A
DECISION
MEMBER:
INTRODUCTION
[1] This is the oral decision in the claims for refugee protection of XXXX XXXX XXXX XXXX, RPD file number TC3-36312 and XXXX XXXX XXXX XXXX, RPD file number TC3‑44808, both alleging to be citizens of Venezuela and no other country who seek refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act.
ALLEGATIONS
[2] The details of your allegations are fully set out in your Basis of Claim forms and narrative, which are found at Exhibits 2 and 2.1. To summarize, you both allege you face a serious risk of persecution in both Venezuela and Ecuador at the hands of society, employers, and the government because you identify as women attracted to other women.
DETERMINATION
[3] I find that you are Convention refugees because you have established you face a serious possibility of persecution in Venezuela on the basis of your sexual orientation. And accordingly, I am accepting your claims.
[4] In assessing your claims, I have considered and applied the Chairperson’s Guideline 9: “Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.”
Identity
[5] You have each established your personal and Venezuelan national identity on a balance of probabilities through your testimony and your genuine Venezuelan passports found at Exhibit 1.
[6] I find you have both established a nexus to one (1) of the five (5) Convention grounds, namely your membership in a particular social group that is women who are attracted to other women. Therefore, your claim will be assessed under section 96 of the Immigration and Refugee Protection Act.
Credibility
[7] I have found you both to be credible witnesses and I believe what you are alleging. Your allegations are laid out in your Basis of Claim and your testimonies today were detailed, spontaneous, and consistent, and there was no attempt to embellish any facts. And I have been given no reason to doubt your testimony. I find you have both established your sexual orientation as women who are attracted to women on a balance of probabilities.
[8] I find you have both on a balance of probabilities, established the core elements of your claim, that you are both women attracted to other women, and that you are in a common law relationship with one (1) another, and that you have experienced harm in Venezuela on account of your sexual orientations. You both testified to being in a common law relationship together since you both met in Ecuador in XXXX 2020 and have been living together in a common law relationship ever since. You both testified to having previous same‑sex relationships. You both spoke to how you experienced continual harassment and discrimination from the general public.
[9] XXXX, you talked about how you kept your sexual orientation a secret so as not to be insulted or physically assaulted. You both testified to the extreme homophobia found in Venezuela, and that you both experienced harassment in the workplace, and how people treated you differently and unfairly when they discovered your sexual orientation. To corroborate your being in a relationship together, you showed me three (3) Facebook posts where you appear together, embraced, and close to one (1) another. You also showed me during the hearing an article from La Presse dated October 22nd, 2023, entitled “J’aime la tranquilité de Saint-Jean.” In the article, you are photographed together, and you read to me a portion of the article that indicates that you are both in a relationship with one (1) another.
[10] Based on your testimony, your Basis of Claim, and your corroborating evidence to which I give full weight, I find you both to be in a same-sex common law relationship with one (1) another and therefore find you both to be women who are attracted to other women. Based on your testimony and your Basis of Claim evidence, I also find that you have experienced harassment in Venezuela based on your sexual orientation.
[11] XXXX, you left Venezuela and went to Ecuador in XXXX 2018 due to harassment and discrimination you experienced in Venezuela and stayed there until XXXX 2022. You were there on a humanitarian visa but were unable to renew it and were told you needed to make a permanent residency application which you were unable to do because you did not meet the qualifications. Namely, you did not have the money or the property that was required by Ecuador.
[12] XXXX, you left Venezuela in XXXX XXXX (sic) — sorry — you left Venezuela in XXXX 2017 because of the dire situation in Venezuela and there not being enough food to eat. You went to Ecuador and stayed there until XXXX 2022 with no formal immigration status. Your Basis of Claims show you both left Ecuador in XXXX 2022 due to discrimination and harassment when people discovered your sexual orientation as women who are attracted to other women, and you testified to coming to Canada because you both felt it was a safe place for you both to live. You both passed through the United States and stayed there for three (3) months but as you testified, XXXX, it was always with the intention to come to Canada to make a refugee claim. I therefore draw no negative inference in your failure to claim asylum in either Ecuador or the US and no negative inference in your delay in filing your asylum claim in Canada.
[13] While you have alleged risk of serious harm in Ecuador, I find you do not need to establish serious risk of harm there, as Ecuador is neither a country of reference nor are you entitled to rights akin to that of citizenship there. I therefore find no reason to examine your risk of serious harm in Ecuador.
[14] I find your testimonies to be credible and find that you have provided credible, corroborative evidence, and therefore find you have a subjective fear of persecution based on your sexual orientation as women are attracted to other women.
Objective Basis
[15] I also find there is an objective basis for your fear of persecution in Venezuela on the basis of your sexual orientations. In reaching this conclusion, I considered the documents in the National Documentation Package for Venezuela, dated July 31st, 2023. Item 6.1 notes that while same-sex relationships are not criminalized in Venezuela, there are no legal protections for LGBTQ+ persons there, and they are not protected by discrimination laws. Members of this community in Venezuela experience significant societal stigmatisation, discrimination, and violence, and homophobic attitudes pervade all areas of life, including in employment, housing, and the provision of social services. Data collected by an NGO in Venezuela indicates that 75 To 80 percent of discriminatory acts committed against LGBTQ people occur in their own homes and are attributable to cultural, religious, and social practices. Violent incidents and incidences of corrective rape of lesbians has also been widely reported.
[16] In terms of organizations that exist to support the community, in 2014, there were 40 such organizations, but by 2020 there were only six (6). The totality of the objective evidence confirms the widespread and systemic persecution of both — of LGBTQ persons –
[17] INTERPRETER: (Speaking in Spanish) — sorry.
[18] MEMBER: — who must hide their identities or face discrimination, harassment, and violence. Based on this evidence, I find there is sufficient credible evidence to determine that the — you both face a serious possibility of persecution if you were to return to Venezuela and that your allegations are objectively well‑founded. Based on the objective documentation cited above and your testimony which establishes your subjective fear, I find that you are both women attracted to other women and have demonstrated a well-founded forward-facing fear of persecution should you return to Venezuela.
State Protection
[19] States are generally presumed capable of protecting their citizens and the onus is on the claimant to show that state protection is unavailable. I find the state of Venezuela is unable or unwilling to protect — to provide adequate state protection from homophobic violence. In making this assessment, I have considered there are some laws of Venezuela intended to provide protection to LGBTQ individuals from societal homophobia. Some of these laws are described in the NDP for Venezuela at Exhibits 3.1 and 6.1.
[20] There is also information at Exhibit 4 indicating that in May 2022, Venezuela created a specialized office to investigate crimes related to human rights violations against the LGBTQ+ population. However. I find that overall, the country conditions evidence before me indicates that laws to protect LGBTQ+ individuals do not effectively provide adequate protection for them on the grounds of homophobic violence. At Exhibit 4, it is documented that police often do not properly investigate to determine whether crimes are motivated by hate or gender discrimination in Venezuela.
[21] To summarize, it appears that Venezuela is making some strides in terms of state protection towards LGBTQ individuals, but I do not find that the situation is currently such that there is adequate state protection for you both from societal homophobic violence.
Internal Flight Alternative
[22] I find there is no viable internal flight alternative for you both in Venezuela and that you both face a serious possibility of persecution throughout the country due to your sexual orientation. In reviewing the country conditions evidence, I did not identify objective information indicating there are parts of Venezuela where you could expect to be safe from the serious possibility of persecution in the form of societal homophobic violence. I therefore find there is no viable internal flight alternative available for you both in Venezuela.
CONCLUSION
[23] Accordingly, I find that you both have demonstrated that you face a serious possibility of persecution in Venezuela on the basis of your sexual orientation as women attracted to other women.
[24] I find that you, XXXX XXXX XXXX XXXX and you, XXXX XXXX XXXX XXXX, are both Convention refugees pursuant to section 96 of the Immigration and Refugee Protection Act. Both of your claims for refugee protection are accepted.
——— REASONS CONCLUDED ———