Citation: 2019 RLLR 120
Tribunal: Refugee Protection Division
Date of Decision: October 16, 2019
Panel: R. Andrachuk
Counsel for the Claimant(s): Maureen Silcoff
Country: Venezuela
RPD Number: TB7-22939
ATIP Number: A-2021-00256
ATIP Pages: 000004-000008
DECISION
[1] MEMBER: Mr. [XXX], I have considered all your evidence, your documentary evidence and your evidence and I am ready to render my decision orally.
[2] You, Mr. [XXX], claim to be a citizen on Venezuela and you seek refugee protection pursuant to Sections 96 and Section 97 (1) of the Immigration and Refugee Protection Act.
[3] And, in considering your claim for protection, I have considered the Chairperson’s Guidelines, Guideline Number 9, on proceeding before the IRB involving sexual orientation and gender identity and expression.
[4] In regard to your identity as a citizen of Venezuela, I find that I am satisfied that you are a citizen of Venezuela and I am most satisfied with your personal identity based on the certified copy of your passport the original of which is being held by the CBSA.
[5] The details of your allegations appear in your Basis of Claim Form and in your oral testimony. The main allegations are that you are afraid to return to your country of nationality Venezuela because you fear persecution based on your sexual orientation of being a homosexual.
[6] You claim that you are a gay and you’ve known of your sexual orientation, you’ve known that you were different from childhood and knew about your sexual orientation from above the age of 13.
[7] You didn’t appear to have experienced serious persecution, discrimination or persecution in Venezuela basically because you didn’t live openly as a gay man.
[8] The only people that you came out to were apparently at the age of 15 when you admitted that you are a gay too, two of your best friends who were also gay and a year before coming to Canada you told your mother about your sexual orientation.
[9] However, many people suspected that you are a gay because of the way you acted first as a child playing with girls mainly and later on for a variety of reasons they suspected that you were not heterosexual and you experienced a lot of verbal harassment.
[10] However, you were able to attend school and complete university and there were no physical attacks on you except once in grade 6.
[11] However, when you had a relationship with your boyfriend [XXX] which began when you were 17 and which lasted until you came to Canada there were two occasions when you were stopped or when you were accosted by police because in the first occasion you were kissing in the car and the police basically extorted a camera and a computer from you for releasing you. Otherwise, they would have caused you problems because of public demonstration of sexual behaviour or alleged public demonstrations of sexual behaviour and there was a second time when the policemen also accosted you and extorted money from you.
[12] Since coming to Canada you have come out of the closet and lived openly as a gay man. You believe that if you return to Venezuela or you fear that if you return to Venezuela that you will face a serious possibility of persecution because of your sexual orientation and if you were to live there openly as a gay man.
[13] My determination is that you are a Convention refugee for the following reasons:
[14] In regard to credibility I find that your testimony was internally consistent with the other evidence that you presented, in particular the documentary evidence that you presented as well is also consistent with the documentary evidence and country conditions.
[15] In fact, your homosexual orientation and the rest of your allegation are corroborated by documents in Exhibit 4 which you provided in support of your claim and I have no reason to discount them, as well as you presented a persuasive psychological report in Exhibit 6.
[16] You also presented evidence from your boyfriend, your former boyfriend in Venezuela, and also letters from your current boyfriend in Canada, [XXX] (ph). I note that [XXX] (ph) was listed as a witness and appeared here today ready to testify on your behalf.
[17] I therefore find that you are a credible witness and I find that you have established that you are a gay and I find on the balance of probabilities the rest of your allegations are also true.
[18] I also find that you have established that you continue to, that live a gay lifestyle in Canada and that you are involved in LGBTQ activities. The documentary evidence before me and country conditions establish that Venezuela is a seriously dangerous place for LGBTQ persons.
[19] I note particularly the RIR from 2014 which is reprinted in the Exhibit, in the current NDP Package in Exhibit 3, referenced in Exhibit 3.
[20] I did note one concern which is the delay in claiming but I accept your explanation as to why you didn’t make an immediate refugee claim when you came to Canada.
[21] For you to be found a refugee you must demonstrate that there is a serious possibility of persecution if you return to a country of origin as well as that there is no, that you wouldn’t receive adequate State protection there.
[22] In considering your prospective return to Venezuela, I have taken into consider your personal profile and your particular situation at the present time, also taking into consideration the objective evidence regarding the current situation in Venezuela particularly for homosexual men in Exhibit 3 which is the National Documentation Package, I note that Tabs 2.1, 2.4, 2.8, 6.1 and 6.2, I find that your allegations are consistent with the objective evidence on the file which confirms that there is a violence and discrimination against the LGBTQ community in Venezuela, and that members of sexual minorities in Venezuela are subject to social stigma, prejudice, acts of violence, discrimination, exclusion, threats and ill treatment.
[23] They are also subject to discrimination when they seek healthcare in the field of employment and in public places.
[24] Although I do note that there is evidence that there is certain gay infrastructure in Venezuela; however, the objective evidence also indicates that there is no general openness about demonstrating a person’s sexual orientation in public if that person is homosexual.
[25] I also note that homosexuality is not illegal in Venezuela. However, there is no specific law which protects against crimes based on sexual orientation or sexual identity although everyone according to the law is to be treated equally no matter what their sexual identity.
[26] There is, as I said equality before the law for all persons and the law prohibits discrimination based on sex or social condition, but the law does not explicitly prohibit discrimination based on sexual orientation or gender identity.
[27] And, there is evidence that the Supreme Court ruling in Venezuela states that no individual may be discriminated against because of sexual orientation has rarely been enforced.
[28] Considering the entirety of the evidence I find that the treatments suffered by the persons of the LGBT community in Venezuela may constitute persecution.
[29] As your counsel pointed out, in your particular case your occupation makes you more visible to the public and therefore would attract more notice for you as a gay man and then may lead to more discrimination and persecution.
[30] You are not expected to hide your sexual orientation in order to ensure your safety and security. And, I find that based on the objective evidence, it demonstrates that if you, that you may suffer discrimination, violence amounting to persecution if you were to live as openly as a gay man.
[31] Therefore I conclude that you have met your burden of proof and have demonstrated that you face a serious possibility of persecution based on a Convention ground if you return to Venezuela which is a membership in a particular social group, persons who fear discrimination persecution based on their sexual orientation or gender identity.
[32] I find that there is not adequate State protection for you in Venezuela. In coming to this conclusion I have taken into consideration of your personal profile and your particular situation at this time.
[33] Also the interaction you experienced on two occasions with the police indicates that you yourself already found that the police themselves are involved in some cases in persecuting LGBTQ minority and therefore it would be difficult to expect they would also provide protection for you.
[34] As indicated, the reports indicate that although discrimination based on sexual orientation is barred, LGBTQ community members faced widespread discrimination and are occasionally subjected to violence.
[35] So, therefore considering the entirety of the evidence, I find that there is clear and convincing evidence that at this time that Venezuelan authorities are unable or unwilling to provide you with adequate protection and therefore I find that the presumption of State protection has been rebutted in your particular circumstances.
[36] So, considering your personal situation and the current situation for the LGBT community in Venezuela, I find that there is a serious possibility of persecution for you throughout the country of Venezuela.
[37] In conclusion, based on all these reasons, I conclude that you are a Convention refugee and the Refugee Protection Division accepts your claim. Congratulations, and I hope you lead a happy life in Canada.
[38] CLAIMANT: Thank you so much. Thank you.
[39] COUNSEL: Thank you.
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