2024 RLLR 84
Citation: 2024 RLLR 84
Tribunal: Refugee Protection Division
Date of Decision: May 24, 2024
Panel: Jessica Wong
Counsel for the Claimant(s): Richard M Addinall
Country: Peru
RPD Number: TC3-62794
Associated RPD Number(s): N/A
ATIP Number: A-2025-00362
ATIP Pages: N/A
DECISION
MEMBER:
INTRODUCTION
[1] These are the reasons for the decision in the Refugee Protection Division decision for XXXX (ph) XXXX XXXX, aka XXXX XXXX XXXX XXXX, you are claiming to be a citizen of Peru and are claiming refugee protection pursuant to section 96 and 97(1) of the Immigration Refugee Protection Act.
[2] I have considered and applied Chairperson’s Guideline 9, I was sensitive to your allegations when it came to questioning and avoided asking any unnecessarily intrusive questions. Furthermore, per Guideline 9, I have also avoided using personal identifiers or sensitive information that is not necessary to explain the reasoning of my decision.
ALLEGATIONS
[3] So, the allegations are in full, in your Basis of Claim form narrative and through your testimony throughout the hearing.
[4] In summary, you fear returning to Peru because of your gender identity, and you allege that there is no protection for you or internal flight alternative.
DETERMINATION
[5] I find that you are a Convention refugee on the grounds of a particular social group due to your identity as a trans woman for the following reasons.
ANALYSIS
Identity
[6] So, your personal identity as a citizen of Peru has been established on a balance of probabilities via testimony and through your copies of your passport and proving ID filed in Exhibit 1 and I am satisfied of your identity.
[7] You also testified that your identity is as a trans woman and that you name — use the name XXXX, and these identifiers have been used throughout my reasons.
Nexus
[8] I find that you have a well-founded fear of persecution based on your membership in a particular social group due to your gender identity as a trans woman, which forms a nexus to the Convention ground.
[9] Accordingly, I assess this claim, under section 96.
Credibility
[10] In refugee claims, there is a presumption that sworn testimony is true, unless there is a valid reason to doubt their truthfulness, the presumption is true — does not apply to inferences and speculations. That presumption may be rebutted through the presence of inconsistencies, contradictions, omissions, or other indicia (ph) to undermine the reliability of the evidence. But today I found that you were a credible witness.
[11] You testified in a detailed and internally consistent manner that went beyond the bounds of your narrative. Your testimony was responsive to questioning, and your testimony was also internally consistent with your Basis of Claim form and the documents you provided in support of your claim.
[12] You testified that you have known that for your whole life, that you were trans. You had described that your childhood was horrible because of this. You described how you took steps to affirm your gender identity as a trans woman. So, you began the transitioning process at 18 because you did not want your body to keep developing into a young man. But it was a difficult process because it was not easy to get medical care in Peru.
[13] You also described how you faced discrimination because you are open about your gender identity. For example, you noted how difficult it was for you to find a job in Peru or even to eat out at a restaurant because people would stare. This did not change even when you tried to move from Lima to Trujillo to start over. While your family was not initially supportive of your gender identity at the outset, they have now tried to see as something as normal and I note that your parents and grandmother have all provided letters of support, and these letters are all in Exhibit 5, which I give full weight in establishing your gender identity as a trans woman.
[14] You left Peru because there is a lack of opportunity for you to be who you really wanted to be. You described how there are lack of barriers in Canada, and how you can get a job here and have better relations with people. You can do things as simple as sitting down and have lunch at a restaurant without people staring and through your detailed and consistent and corroborated testimony, I find your allegations are credible.
[15] I find that on a balance of probabilities you have established a fear — subjective fears of persecution in Peru as a trans woman.
Well-Founded Fear of Persecution
[16] Refugee claimants must establish that they have a well-founded fear of persecution related to a Convention ground, or that they face risk of — a personalized risk as contemplated by section 96 of the Immigration and Refugee Protection Act, on a balance of probabilities.
[17] In this case, I find there is an objective basis for this claim, the objective basis indicates that members of SOGIESC community, including trans individuals face societal and official discrimination in virtually all spheres of life in Peru, including in housing, employment, education, law enforcement and health care.
[18] Strongly held prejudices against the SOGIESC community are also expressed in acts of violence. These acts of violence are sometimes committed by state representatives, including members of the national police and the municipal police, public security guards, and this is noted in Exhibit — Tab 6.4, in the National Documentation Package.
[19] Furthermore, there was a study conducted by the National Institute of Statistics and Informatics of Peru, which indicates that 56.5 percent of the LGBT community in Peru is afraid of expressing their sexual orientation and or gender identity, principally due to fear of being discriminated against and or attacked and that is, that was also in the same Tab.
[20] It is also — coercive conversion therapy is also common and that is also in 6.4. Counsel has also provided evidence in Exhibit 6 and 6.1, So — and also in Exhibit 6.1. There was a recent news article from just a few days ago regarding the treatment of the trans community specifically. The article states that Peru’s government has published a presidential decree that classifies trans identities as a mental illness, which critics say give legitimacy to conversion practices and also exacerbates the mental health issues that the LGBTQ community faces in Peru.
[21] So, in considering the evidence in its totality, I find that the discrimination that trans individuals face in Peru amounts to persecution. As you credibly establish that you are a trans woman who has been discriminated due to your gender identity, I find there is an objective basis to your fear, and accordingly, you have established a well-founded fear of persecution in Peru.
State Protection
[22] In refugee determination (ph) the state is presumed to be able to protect its citizens, and to rebut this presumption, a claimant must establish on a balance of probabilities that their state’s protection is inadequate based on clear and convincing evidence and in your case, I find the presumption of state protection has been rebutted.
[23] The objective evidence indicates that the Peruvian police is unlikely to provide adequate state protection. As noted in Tab 6.4 indicates that the authorities have acted on their prejudice against the SOGIESC community and has committed acts of violence against them, and that there is also evidence that the police are slow to respond to complaints and do not adequately investigate — do not adequately conduct investigations.
[24] So, the evidence makes it clear that the Peruvian authorities lack the resources to effectively protect the SOGIESC population and are in fact in some cases, agents of harm.
[25] So, I find that the presumption of state protection has been rebutted and state protection would not be forthcoming to you.
Internal Flight Alternative
[26] Similarly, the evidence indicates that sexual minorities face that — face difficulty in virtually all spheres of life in Peru and there is no evidence before me that the hostility towards trans individuals are confined to a specific geographical area in Peru, it is also well established law that an IFA is not viable if a SOGIESC individual must conceal their SOGIESC identity in order to live in that location.
[27] So, in my view, the evidence demonstrates there’s no viable internal fight alternative.
CONCLUSION
[28] So, based on the totality of the evidence before me, I find that you are a Convention refugee pursuant to section 96 and I accept your claim and that concludes my reasons.
——— REASONS CONCLUDED ———