2024 RLLR 24
Citation: 2024 RLLR 24
Tribunal: Refugee Protection Division
Date of Decision: August 20, 2024
Panel: N. Bortei
Counsel for the Claimant(s): Constance Nakatsu
Country: Dominican Republic
RPD Number: TC3-33453
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A
DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX XXXX, a citizen of the Dominican Republic who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
[2] In hearing and assessing this claim, I have considered the Chairpersons Guideline 9: Proceedings before the Immigration and Refugee Board Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC).[2] This guideline assists in assessing the key evidentiary elements in determining the harm individuals may face due to their sexual orientation or gender identity.
ALLEGATIONS
[3] The claimant’s allegations are fully set out in his Basis of Claim (BOC) forms.[3] In summary, the claimant alleges a fear of persecution and a risk to life in the Dominican Republic on the basis of his sexual orientation. The claimant also alleges a risk of harm from his former partner, who he believes to be a XXXX XXXX.
DETERMINATION
[4] I find that the claimant is a Convention refugee, pursuant to Section 96 of the IRPA, as he faces a serious possibility of persecution in the Dominican Republic, on account of his membership in a particular social group, namely as a gay man.
ANALYSIS
Identity
[5] The claimant’s personal and national identity as a citizen of the Dominican Republic has been established on a balance of probabilities by his testimony and photocopies of his passport included in the CBSA/IRCC Claim Referral package.[4]
Credibility
[6] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.[5] However, this presumption does not apply to inferences or speculation, for which there is no evidentiary basis.
[7] I find the claimant to be a credible and trustworthy witness. At the hearing, the claimant gave testimony that was straightforward and spontaneous. Further, the claimant provided supporting details in his testimony. There have been no relevant contradictions or omissions that would go to the core of his claim. Therefore, I find the claimant to be a credible witness and believe what he has alleged in support of his claim.
[8] Given that I have found the claimant to be credible regarding his sexual orientation and his forward-looking risk in that regard, I have not found it necessary to assess the claimant’s allegations regarding his former partner.
[9] The claimant testified and I accept that he identifies as a gay man. At the hearing, the claimant provided detailed testimony about his SOGIESC identity. The claimant testified that the Dominican Republic society and many of his family members held deep rooted gender roles and held anti-LGBT views and therefore he felt the need to hide aspects of himself relating to his sexual orientation while in the Dominican Republic. Particularly, the claimant provided credible testimony regarding his childhood and how his interest in playing with dolls and being close to his sister and her friends were not accepted by his father. Further, the claimant was able to provide further well detailed testimony about how his interests as a child drew concern from various family members because they were not in line with the normative gender ideals and societal expectations of his family and the broader society in Dominican Republic. The claimant provided testimony that was in line with his narrative and his letters of support from his family.[6]
[10] The claimant testified that he struggled to tell his family and friends about his sexual orientation, because of their lack of acceptance of the LGBTQ community and that he had a limited number of friends who were aware of his sexual orientation. The claimant testified that he was ultimately able to disclose his sexual orientation to his mother and sister, who were accepting of him, however his father and one of his brothers was not accepting of him and no longer speak to him because of his sexual orientation. The claimant became emotional while testifying to these events, however he was able to provide credible testimony regarding his feelings and the impact of his family’s response on his sense of self.
[11] The claimant testified to meeting a friend, R who was openly gay in the Dominican Republic. The claimant testified that R was not treated well by the Dominican Republic society and that other’s would speak ill of him, throw things at him and use derogatory language against him, related to his sexual orientation. Although, the claimant felt supported by his friendship with R, he testified that when R encouraged him to be more open about his sexuality in the Dominican Republic, he looked at the negative ways R was treated and decided against it. The claimant testified that he often felt fear for R and viewed R’s decision to be openly gay to be dangerous because of the views and treatment that Dominican society held against LGBTQ persons. The claimant testified that he later became aware that R had been killed in the Dominican Republic.
[12] When asked about the knowledge of the incident, the claimant responded that he became aware of the incident while watching the news, where it was reported that a gay man had been attacked and killed. The claimant testified to the impact of R’s death and the circumstances surrounding R’s death in relation to his own decisions regarding the openness of his sexuality in the Dominican Republic.
[13] The claimant was also able to testify to his past feelings for men and his past relation to N, his short-term partner in the Dominican Republic. The claimant’s testimony and timeline in this regard was in line with his narrative and therefore, I accept his testimony regarding his previous same-sex relationship with N.
[14] The claimant also testified to his present relationship with his same sex partner, J. Particularly, the claimant testified to building a romantic relationship with J, in Canada. The claimant was able to testify spontaneously to questions regarding their relationship. In support of his claim, the claimant provided photos of their relationship with J. The claimant testified to the importance of their relationship as a support system, while he explores his gay identity in Canada. The claimant also provided photos of himself at various LGBTQ community events[7] and provided testimony regarding the LGBTQ organizations he is involved in. I place weight on the photos in corroborating the claimant’s allegations of being in a same sex relationship with J and his engagement in the LGBTQ community in Canada. The claimant further testified that since his arrival to Canada, he has felt more free and open to express his sexual orientation and provided testimony regarding those positive feelings of pride related to his sexual orientation.
[15] Having considered the totality of the evidence, including the claimant’s credible testimony and documents, I accept his core allegations as credible and find that his subjective fear of persecution on the basis of his sexual orientation has been established, on a balance of probabilities.
Objective Basis
[16] Refugee claimants must establish that they have a well-founded fear of persecution related to a Convention ground, or that they face a risk of personalized harm, as contemplated by section 97 of the IRPA, on a balance of probabilities. The objective basis of this claim is established by the objective documentary evidence.
[17] The SOGIESC Guideline indicates that individuals with diverse sexual orientation may face instances of harassment or discrimination that cumulatively amounts to a well-founded fear of persecution. The SOGIESC Guideline provides a non-exhaustive list of factors to consider regarding cumulative discrimination amounting to persecution including restrictions on employment, social service, healthcare, and harassment by the police.[8]
[18] The National Documentation Package (NDP), indicates same-sex activity is not explicitly criminalized in the Dominican Republic, however the LGBTQ community in the Dominican Republic are still subjected to violence, harassment and discrimination by society in multiple spheres of life such as employment, housing and medical services on the basis of their sexual orientation.[9] Further, media and civil society observers highlighted several reports of LGBTQ persons being targeted for robbery, extortion, abuse, or murder through location-based dating apps.
[19] The NDP illustrates some of the positive changes the Dominican Republic has made towards persons with SOGIEC identities, such as President Danilo Medina signing a decree in 2014, authorizing 36 trans persons the ability to change their names,[10] however, in the same document, it indicates that the LGBTQ community face a range of human rights concerns, including violence, discrimination, hate crimes, lack of access to justice, impunity from perpetrators, and societal homophobia and transphobia in the Dominican Republic.[11]
[20] The objective evidence establishes that those with LGBTQ identities in the Dominican Republic face serious, sustained, and systematic human rights abuses that amount to persecution. Therefore, I find that the claimant’s subjective fear has an objective basis and that it is well-founded.
State Protection
[21] In all refugee claims, the state is presumed capable of protecting its citizens unless there is clear and convincing evidence to the contrary. In this case, I find that this presumption has been rebutted.
[22] The NDP indicates that state authorities do not always investigate and punish people who commit crimes against LGBTQ persons. The Dominican Republic constitution protects the principles of non-discrimination and equality before the law, but it does not specifically include sexual orientation, gender identity and expression, or sex characteristics as protected categories.[12] Further, the national police largely failed to respond to reports of these crimes because police generally did not prioritize this victim group and often showed indifference or outright hostility to the LGBTQ community.[13]
[23] Accordingly, I find that the claimant cannot be expected to approach the Dominican Republic state for protection. Therefore, I find that the presumption of state protection has been rebutted.
Internal Flight Alternative (IFA)
[24] In order for a refugee claim to succeed, a claimant must establish that there is no other place in the country in which they can live without facing a serious possibility of persecution or a likely risk of section 97 harm. Alternatively, the claimant must demonstrate that relocation to another place in the country is unreasonable in their circumstances.
[25] I have considered whether a viable internal flight alternative exists for the claimant. The country documentation indicates the situation for LGBTQ individuals and circumstances like the claimant’s is the same throughout the country, and that the claimant would face a serious possibility of persecution or a risk to life anywhere in the Dominican Republic based on his sexual orientation.
[26] As indicated in the Chairperson’s Guideline 9, it is well established in law that an IFA is not viable if a SOGIESC individual must conceal their SOGIESC identity in order to live in that location, as it would be a denial of human rights. As such, I find there is no viable internal flight alternative for the claimant in the Dominican Republic.
CONCLUSION
[27] Having considered the totality of the evidence, I find that there is a serious possibility of persecution on the basis of his sexual orientation should the claimant return to the Dominican Republic.
[28] Therefore, I find that the claimant is a Convention refugee, pursuant to Section 96 of the IRPA. His claim is therefore accepted.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Immigration and Refugee Board of Canada (IRB), Chairpersons Guideline 9: Proceedings before the Immigration and Refugee Board Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, 2021.
[3] Exhibit 1.
[4] Exhibit 2.
[5] Maldonado [1980] 2.F.C. 302 (C.A.).
[6] Exhibit 5.
[7] Exhibit 6
[8] Immigration and Refugee Board of Canada (IRB), Chairpersons Guideline 9: Proceedings before the Immigration and Refugee Board Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, 2021 at Section 8.5.9.1.
[9] National Documentation Package, Dominican Republic, 31 July 2024, tab 6.1: Situation and treatment of sexual and gender minorities by society and authorities, including legislation, state protection and support services (2017-July 2020). Immigration and Refugee Board of Canada. 15 July 2020. DOM200288.E.
[10] National Documentation Package, Dominican Republic, 31 July 2024, tab 6.4: Dominican Republic: Trans Legal Mapping Report 2019: Recognition before the law. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Zhan Chiam et al. September 2020.
[11] Ibid.
[12] Ibid.
[13] National Documentation Package, Dominican Republic, 31 July 2024, tab 2.1: Dominican Republic. Country Reports on Human Rights Practices for 2023. United States. Department of State. 22 April 2024.