Citation: 2020 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: November 3, 2020
Panel: Josée Bouchard
Counsel for the Claimant(s): Amedeo Clivia, Maritza Sierra Vasquez
Country: Venezuela
RPD Number: TB9-12556
Associated RPD Number(s): TB9-12599, TB9-30737
ATIP Number: A-2021-00540
ATIP Pages: 000001-000014
REASONS FOR DECISION
[1] [XXX] (the principal claimant), her daughter [XXX] (the minor claimant) and her brother [XXX] (the associate claimant) are citizens of Venezuela and claim refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1
ALLEGATIONS
[2] The claimants’ allegations are fully set out in their basis of claim (BOC) forms.2
[3] To summarize, the principal claimant and associate claimant allege a serious possibility of persecution at the hands of the Venezuelan authorities and “colectivos” because of their political opinion, namely their anti-government affiliation and activities.
[4] The associate claimant and minor claimant allege a serious possibility of persecution at the hands of the Venezuelan authorities and “colectivos” because of their membership in a particular social group, namely their familial relationship as the brother and daughter, respectively, of the principal claimant.
Designated Representative
[5] The principal claimant was appointed as the Designated Representative for the minor claimant. She provided a special power of attorney signed by the minor claimant’s father on [XXX] 20203 giving her the power to take the minor claimant to Canada.
DETERMINATION
[6] The claimants are Convention refugees, as they have demonstrated a serious possibility of persecution in Venezuela on Convention grounds by virtue of their political opinion, namely their anti-government affiliation and activities, or their membership in a particular social group, namely the associate and minor claimants’ familial relationship as the brother and daughter respectively of the principal claimant.
Identity
[7] The claimants’ personal identities as citizens of Venezuela have been established by the testimonies of the principal and associate claimants and the supporting documents, namely the principal, associate and minor claimants’ valid passports issued by the government of Venezuela.4
[8] I find on a balance of probabilities that personal identity and country of reference have been established.
ANALYSIS
Credibility
[9] In terms of the principal and associate claimants’ general credibility, I have found them to be credible witnesses and I therefore believe what the claimants have alleged in their oral testimonies and their basis of claim forms. Their evidence was detailed and consistent, both internally and with their documentation. Throughout the hearing, the principal and associate claimants were articulate, responsive, and forthright. They were able to elaborate on their narratives and gave detailed explanations to the questions. Their claims were well supported, and I noted no material inconsistencies or omissions such that the presumption of truthfulness could be rebutted.
[10] I turn now to the findings as they relate to the principal and minor claimants.
The principal claimant and the minor claimant
[11] Based on the credible testimonies and overall evidence, I make the following findings of fact as they relate to the principal claimant and the minor claimant:
a. The principal claimant is a member of the political party Conciencia de Pais, a political party that is in opposition to the regime. She participated in the party’s monthly meetings of professionals and participated in the logistics to prepare demonstrations, such as preparing pamphlets and placards. The principal claimant testified that the regime knew of her membership in the political party Conciencia de Pais.
b. The principal claimant is a [XXX] by profession. From [XXX] 2000 to [XXX] 2018, the principal claimant worked for the [XXX], which is a governmental organization. She provided documentary evidence in support of her claim that she worked for that organization. She was, for most of her tenure there, the [XXX]. Beginning in 2013, a new director and strong sympathizer with the regime was appointed as the head of the organization. She made it mandatory for employees to attend political meetings, marches, and events in support of the regime.
c. The principal claimant’s political opinion was known within the organization she worked for. The principal claimant was harassed and threatened by colleagues and the director for refusing to attend events and demonstrations in support of the regime. The principal claimant testified that there were lists of those who refused to participate. When the principal claimant refused to participate, she was called miserable; someone who is against the regime. She testified that she was perceived as a traitor to the regime.
d. The principal claimant also had disagreements with the director. She testified that she refused to approve renovations in her laboratory because in her view the renovations were unsafe and used as a money laundering scheme. The director proceeded without her approval.
e. While on a medical leave, there was a theft at the principal claimant’s workplace: a chair, a box with supplies and laboratory equipment were stolen. She later found out that she faced criminal charges of “unlawful embezzlement” for the theft. She testified that this was done because of her anti-government political opinion and refusal to cooperate with the director in the renovation that she characterised as money laundering.
f. As a result of the charges, the principal claimant required medical attention for stress. Her physician recommended a change of position to one with less supervisory responsibilities. Consequently, the principal claimant moved to another department as [XXX]. She testified that even with that change, the director and colleagues continued to harass her.
g. The principal claimant finally resigned from the [XXX] to work for a private company. Her responsibilities included [XXX]. She required approval from the government before [XXX] and the government or her former director refused or delayed such approvals.
h. The principal claimant attended several preliminary hearings in her legal proceeding, including a hearing on [XXX] 2018 when the judge dismissed the charges against her for lack of evidence. The principal claimant testified that the judge was immediately removed before signing the decision.
i. On [XXX] 2019, while the principal claimant was leaving her house with her daughter, two men on motorcycles stopped and hit her window with firearms. Their heads were covered, and they said, “prepare yourself for what is coming”. The principal claimant, with the minor claimant, fled to her parent’s house and remained there until she left Venezuela. The principal claimant did not go to the police because she had been trying to get justice for three years and none was forthcoming.
j. The principal claimant left for Canada on [XXX] 2019.
k. The principal claimant filed a statement from her parents dated [XXX] 2019 indicating that that they had gone to her apartment to recover documents and the principal claimant was still receiving threats through phone calls to her home. The principal claimants’ parents stated that they remained indoors and were very anxious.
l. The principal claimant also filed a lettedated [XXX] 2019, from the friend who looked after her apartment in Venezuela. The friend confirmed that she often heard calls while in the principal claimant’s apartment but found it unwise to answer.
m. On [XXX] 2019 the Court of Appeal of the Criminal Judicial Circuit of the Metropolitan Area of Caracas (Venezuelan Appellate Court) dismissed the charges against the principal claimant due to lateness in filing the appeal. The principal claimant testified that she remains fearful of returning to Venezuela. The principal claimant also fears for her daughter as she believes she is in danger because of her. The principal claimant testified that her daughter is at risk of being kidnapped as a means of revenge from the regime. The principal claimant believes that if she returns to Venezuela, she will be immediately detained at the border and charged. She testified that the regime does not forgive.
[12] I find that the principal claimant is seen by Venezuelan authorities as opposing the regime and she faces danger because of it. I find that, because of her familial relationship with the principal claimant, the minor claimant also faces danger from the authorities and “colectivos”. She was a victim in the [XXX] 2019 attack and the fact that she is the daughter of the principal claimant, who is wanted by the regime, puts her at an increased risk of violence and kidnapping as a means of retaliation against the principal claimant.
[13] I turn now to the associate claimant.
The associate claimant
[14] Based on the credible testimonies and overall evidence, I make the following findings of fact as they relate to the associate claimant:
a. The associate claimant was an active participant in anti-government activities starting in 2004 when he was a university student. He was part of the group that submitted the collection of signatures to request a referendum against Hugo Chavez Frias. He received threats through phone calls as a result.
b. The associate claimant completed a bachelor’s degree in [XXX] and a master’s degree at the [XXX]. Despite his level of education, the associate claimant had difficulty finding employment in Venezuela. When he found employment, it was below his level of education and knowledge and in a different area of expertise than his degrees. Employers tried to force him to attend marches in support of the regime. When he refused, he was terminated. At his last employment in Venezuela, the associate claimant believes that his employer was making lists and taking pictures of people who refused to attend events in support of the regime. He believes that this information was shared with the “colectivos”.
c. In 2017, the associate claimant found employment in Buenos Aires, Argentina. He worked for 2 years, until his contract ended. After two years, he returned to Venezuela. Upon his return, the associate claimant was stopped and detained by the Venezuelan national guard for 9 hours because he was considered his sister’ s accomplice. The officers hit him with weapons, took his clothes out of his luggage and took gifts he brought back. After his release, while still in Venezuela, the associate claimant felt he was being followed.
d. Between [XXX] 2019 and [XXX] 2019, the associate claimant was confronted twice by men on motorcycles. The last confrontation resulted in the associate claimant being brutally beaten. One of the six assailants took a revolver and put it in his mouth, saying that the next time he was a dead man, and to tell his sister to return to Venezuela. The associate claimant left Venezuela a few weeks later for Canada.
[15] I find that the associate claimant is seen as a political dissident and is being targeted as a result. I also find that the associate claimant is seen as an accomplice to the principal claimant’ s actions and he is being targeted as a result.
Documentary evidence
[16] The claimants also provided documents in support of their claims, including:
a. A psychological report dated [XXX] 2016 and made contemporaneously to the events, showing the hardship that the charges of embezzlement caused to the principal claimant.5
b. Attestation that the principal claimant is a member of the Conciencia de Pai, an anti-government political party.6
c. Documents relating to the principal claimant’ s employment in Venezuela supporting her claim that she worked for the [XXX] a governmental organization.7
d. Excerpts from court documents and decisions relating to the legal proceeding against the principal claimant. The documents include the decision of the Venezuelan Appellate Court of [XXX] 2019 dismissing the charges against the principal claimant. The documents support the claim that the principal claimant was unjustly charged of the crime of “unlawful embezzlement” in Venezuela.8
e. A report from the principal claimant’s lawyer in Venezuela providing the lawyer’s position on the proceedings against her.9
f. A 2019 medical report written by a psychologist in Ontario supporting the principal claimant’s claim that she still suffers from serious psychological conditions because of what happened in Venezuela.10
g. Statements by friends and family members supporting the claims that the principal and associate claimants were persecuted in Venezuela and are still at risk.11
[17] There is no reason to cast any doubt on the veracity of these documents and as such I place great weight on these documents to support the claimants’ allegations and overall claims.
Nexus
[18] Based on the above facts, I find that, because of their refusal to support the regime, the principal and associate claimants were the victims of physical and emotional abuse by the authorities and those acting for them. As such, I find that both the principal claimant and associate claimant have a nexus to the Convention by virtue of their political opinion.
[19] I also find that the minor claimant and the associate claimant have a nexus to the Convention as family members of the principal claimant. They were both attacked because of their relationship with the principal claimant. As such I find that both the associate claimant and minor claimant have a nexus to the Convention by virtue of their membership in a particular social group.
Subjective fear
[20] The principal claimant was harassed through degrading comments from the director of her former employer, a governmental organization, because she refused to participate in the regime’s activities. She was persecuted through the laying of false charges against her, which remained unresolved for several years. This culminated in the attack on her and her daughter in [XXX] 2019 when she was in her car leaving her house.
[21] The principal claimant fled to her parents’ house on [XXX] 2019 and remained there until she left with the minor claimant for Canada the next month. She provided testimony that even after her departure from Venezuela, the authorities or “colectivos” mandated by the authorities were still looking for her. Her brother’s detention by the national guard when he returned from Argentina and the attacks on him between [XXX] 2019 and [XXX] 2019 are further evidence of that.
[22] I find that the Venezuelan Appellate Court’s dismissal of the principal claimant’s charges against her does not diminish her subjective fear. The use of the penal system against her was one of several forms of persecution she experienced due to her anti-government political opinion. It does not mean that the government will not seek other ways to repress the principal claimant, such as detaining her upon entry into Venezuela or employing the “colectivos” to threaten and harm her as they have done in the past.
[23] The minor claimant also experienced an attack by armed masked motorcyclists while in the car with the principal claimant. She is at risk largely for the same reasons as the principal claimant and could be targeted by the government or those acting for the government as reprisal aimed toward the principal claimant.
[24] The associate claimant was detained and interrogated because of his relation to his sister. He was called an accomplice of someone who has fled Venezuela. He was forced to flee after two brutal attacks by unknown assailants, assumed to be part of the “colectivos”, between [XXX] 2019 and [XXX] 2019. During the last attack he received death threats while a revolver was placed in his mouth. He fled to Canada a few weeks later.
[25] I find that the claimants’ subjective fear is established by their credible testimonies and I believe what they have alleged, on a balance of probabilities.
Objective Basis
Country documentation
[26] The objective country reports are consistent with the claimants’ evidence about the violence suffered by dissidents of the regime in Venezuela.
[27] The National Documentation Package (NDP) for Venezuela, dated September 30, 2020, refers to the Human Rights Watch, World Report 2016: Events of 201512, which states as follows:
[u]nder the leadership of President Hugo Chavez and now President Nicolas Madura, the accumulation of power in the executive branch and erosion of human rights guarantees have enabled the government to intimidate, censor, and prosecute its critics, leading to increasing levels of self-censorship.
[28] Freedom House, in Venezuela, Freedom in the World 202013, notes that “the authorities have closed off virtually all channels of political dissent, restricting civil liberties and prosecuting perceived opponents without regard for due process.”
[29] The United Nations Human Rights Council, in its August 23, 2016 report prepared by the Office of the United Nations High Commissioner for Human Rights14 also notes that “fundamental guarantees for the exercise of freedom of expression and the right to freedom of opinion have been eroded, with an increase in attacks, censorship, arbitrary detentions, police surveillance, arbitrary interception of communications and abuse of power by State authorities”.
[30] Having been the subject of false charges, the principal claimant testified that she could again be subjected to false charges if she were to return to Venezuela. The United States, Department of State, in its Country Reports on Human Rights Practices for 2019, remarks on the practice of making false charges against political dissidents in Venezuela. It talks about corruption and political influence throughout the justice system. Reports from the International Commission of Jurists states that as many as 85 percent of all judges had provisional appointments and were subject to removal at will by the judicial committee. Provisional and temporary judges, who legally have the same rights and authorities as permanent judges, allegedly were subjected to political influence to make pro regime determinations.15
[31] The May 17, 2017 Response to Information issued by the Immigration and Refugee Board of Canada discusses the influence of “colectivos” in Venezuela. It notes that “many of the country’s “colectivos” are becoming criminalized and violent, extorting the communities they often claim to protect […] the “colectivos” have grown in power and influence, and in many cases have become linked to organized crime and have evolved into “partly criminal organizations”. It further states that “the “colectivos” have been supplied with weapons from the government and they have received training in urban warfare […] They act as enforcers in the barrios (neighbourhoods) and in general act to intimidate the population to discourage them from doing anything the government would dislike”.16
[32] The December 19, 2017 Response to Information Request issued by the Immigration and Refugee Board of Canada supports the claimants’ claims that employees who refuse to attend activities in support of the regime are punished for such refusals. It states that “[t]here is no rule of law in Venezuela [ … ] there is little recourse for someone who refuses to participate in a rally during the election period [… ] if an individual works for a state enterprise and refuses to participate in a rally when the employer wants them to join, they will be accused of siding with the opposition [… ] it is rare that individuals will contact the police willingly to file a complaint because the police m Venezuela have a bad reputation and are known to commit robberies themselves”.17
[33] Country documentation also suggests that family members of opponents of the regime are at risk. The Office of the United High Commissioner for Human Rights observed that “persecution had extended to the families of opposition members, social activists or human rights defenders. Family members have been subjected to surveillance, threats, intimidation, and reprisals, solely on the basis of their family ties.”18
[34] As the claimants have established their subjective fear and an objective basis for that fear, I find that they have established a well-founded fear of persecution.
State Protection
[35] When making a refugee claim, a claimant must establish, on a balance of probabilities, that adequate state protection is not available. There is a presumption that state protection is available, and the onus is on the claimant to provide dear and convincing evidence to rebut such protection. A claimant is required to approach the state for protection if protection might reasonably be forthcoming or, alternatively, if it is objectively reasonable for the claimant to have sought protection. The evidence that state protection is not adequate must be reliable and probative. It must also satisfy the panel, on a balance of probabilities, that state protection is inadequate.
[36] In this case, the agents of persecution are the state and state sanctioned “colectivos”. The persecution the claimants would face should they return to Venezuela is at the hands of the authorities. Accordingly, I find there is no state protection available to the claimants.
Internal Flight Alternative
[37] I have also considered whether a viable internal flight alternative exists for the claimants. The principal and associate claimants both testified that their employers were making lists of political dissidents. As a result, their names would have been included on those lists. The associate claimant was identified at the border as the brother of the principal claimant and he was detained as a result. I find on a balance of probabilities that both the associate and principal claimants are on lists of individuals known to be opponents of the regime and that the authorities have access to those lists. In addition, the evidence reviewed above confirms that the agent of persecution is the state and the persecution is nationwide. I find that there is a serious possibility of persecution for the claimants throughout Venezuela and therefore find that there is no viable internal flight alternative for them.
CONCLUSION
[38] Based on the totality of the evidence, I find all three claimants to be Convention refugees pursuant to s. 96 of IRPA. The principal claimant and associate claimant have demonstrated a serious possibility of persecution at the hands of the Venezuelan authorities and “colectivos” because of their political opinion, namely anti-government affiliation and activities. The minor claimant and associate claimant have demonstrated a serious possibility of persecution at the hands of the Venezuelan authorities and “colectivos” because of their membership in a particular social group, namely their familial relationship as the daughter and brother, respectively, of the principal claimant. I accept their claims.
(signed) Josée Bouchard
November 3, 2020
1 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended.
2 Exhibits 2.1, 2.2 and 2.3.
3 Exhibit 5.3.
4 Exhibit 1.
5 Exhibit 5.1.
6 Exhibit 5.1.
7 Exhibit 5.1. The Venezuelan name of the institute is [XXX].
8 Exhibits 5.1 and 5.3.
9 Exhibit 5.1.
10 Exhibit 5.1.
11 Exhibits 5.2, 6.1 and 6.2.
12 Exhibit 3, item 4.6.
13 Exhibit 3, item 2.4.
14 Exhibit 3, item 2.8.
15 Exhibit 3, item 2.1.
16 Exhibit 3, item 4.16,
17 Exhibit 3, item 4.6
18 Exhibit 3, item 2.9.