2022 RLLR 132

Citation: 2022 RLLR 132
Tribunal: Refugee Protection Division
Date of Decision: June 23, 2022
Panel: D. Kershaw
Counsel for the Claimant(s): Constance Nakatsu
Country: Peru
RPD Number: TB8-29823
Associated RPD Number(s): TB9-06979
ATIP Number: A-2023-01023
ATIP Pages: N/A

 

REASONS FOR DECISION

 

INTRODUCTION

 

[1]       These are the reasons for the decision in the claims of XXXX principal claimant (the “principal claimant”) and XXXX the associate claimant, who are sisters and who are both citizens of Peru who claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)[1].

 

[2]       In rendering my reasons, I have considered and applied both Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (“the Gender Guidelines”) and Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (“the SOGIESC Guidelines”). I have considered these Guidelines when asking the claimant questions, and as set out below, when writing this decision.

 

[3]       I note that after these sittings, the claimants’ counsel requested that she be permitted to do written submissions. Unfortunately, due to her health, they were delayed, and I received them toward the end of April 2022.

 

DETERMINATION

 

[4]       I find that the claimants are Convention refugees because the principal claimant has established a serious possibility of persecution on account of her membership in a particular social group as a lesbian and as a woman facing intimate partner violence[2], and the associate claimant has established her membership in the particular social group of a family member of a lesbian and family member of a woman who has faced intimate partner violence.

 

ALLEGATIONS

 

Principal Claimant

 

[5]       The allegations are set out in the claimants’ Basis of Claim (BOC) forms[3].

 

[6]       In summary, the principal claimant fears ongoing persecution as a lesbian and woman not only at the hands of a former acquaintance who is also a XXXX but also by the wider community in Peru. The principal claimant requested that I refer to her former acquaintance as her aggressor, which I did at the hearing and do in my reasons.

 

[7]       The principal claimant is 31 years old and lived in Lima and Callao in Peru prior to coming to Canada. She also stayed for a short time in Mexico en route to Canada because she used a fraudulent Mexican passport to come to Canada.

 

[8]       The principal claimant alleges that her aggressor sexually assaulted her on more than one occasion at least partly because he knew she was a lesbian. She further alleges that she tried to move to a different city, but he found her and attacked her again. She also alleges that she is generally at risk of persecution in Peru because of her sexual orientation.

 

[9]       The principal claimant alleges there is no state protection or internal flight alternative for her in Peru.

 

Associate Claimant

 

[10]     The associate claimant fears ongoing persecution at the hands of the principal claimant’s aggressor as the sister of the principal claimant.

 

[11]     The associate claimant is 37 years old and lived in Lima and Juancaya prior to coming to Canada. She, like the principal claimant, stayed for a short time in Mexico just prior to coming to Canada because she used a false Mexican passport to come to Canada.

 

[12]     The associate claimant alleges that she is at risk of persecution by the aggressor because he came to her residence looking for the principal claimant and threatened the associate claimant’s life.

 

[13]     She further alleges that she is at risk of persecution because her sister is a lesbian.

 

[14]     The associate claimant alleges that there is no state protection or an internal flight alternative for her in Peru.

 

NEXUS

 

[15]     I find there is a nexus between what the claimants fear and in the case of the principal claimant, her membership in the particular social group of lesbians and women facing intimate partner violence; and in the case of the associate claimant, being the family member of a woman facing intimate partner violence.

 

ANALYSIS

 

Identity

 

Principal claimant

 

[16]     I find that the principal claimant’s identity as a national of Peru was established on a balance of probabilities by a certified true copy of her Peruvian national identity card[4] and a copy of her birth certificate[5]. The principal claimant testified that she came to Canada using a false Mexican passport[6].

 

[17]     She testified with respect to how she found the person who helped facilitate her flight from Peru to Mexico and then from Mexico to Canada using the fraudulent passport. She was able to give me details of the process including the documents she gave the man, and her dealings with him.

 

[18]     I believe the principal claimant’s testimony about this, and I find that she travelled to Canada using the fraudulent Mexican passport. I further find on a balance of probabilities based on her testimony and the documentary evidence in the file that she has established her persona! and national identity as a Mexican citizen.

 

Associate claimant

 

[19]     The associate claimant also testified that she used a fraudulent Mexican passport to travel to Canada. She too testified with respect to her travel to Mexico where she was kept for about three weeks by the man facilitating her journey prior to being told it was time for her to travel to Canada.

 

[20]     The associate claimant provided a copy of her birth certificate[7] and a copy of her Peruvian national identity card[8] and I am satisfied on a balance of probabilities based on her testimony and the documentary evidence that the associate claimant has established her personal and national identity as a citizen of Peru.

 

Credibility

 

[21]     When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness[9].

 

[22]     I will first address the principal claimant’s claim.

 

Principal claimant

 

[23]     With respect to credibility, there were some contradictions in the principal claimant’s testimony about the violence from her aggressor, particularly dates, and I spent a considerable length of time asking her questions because of this. However, after hearing the testimony of both her and her sister, I find that the contradictions do not go the heart of the principal claimant’s claim as a lesbian and as a woman who faced intimate partner violence. In addition, on a balance of probabilities I believe the principal claimant’ s testimony about the violence despite the contradictions.

 

[24]     Memory is fallible, particularly in cases of trauma. Whether the principal claimant remembers there being four instead of three incidents of violence, for example, does not change the fact that I believe she suffered violence. In addition, her testimony about when she first met her aggressor was not consistent with her interview at the border. She explained that she was very nervous at the border, to the point where she described herself as not knowing what she was talking about. I accept her testimony with respect to the inconsistency with respect to dates. While her testimony about the dates on which her aggressor hurt her, and while she was very poor at recalling dates, this does not change my finding that she was sexually assaulted by her aggressor on more than one occasion.

 

[25]     It was clear from her testimony that the sexual assaults traumatized her greatly. There was a date discrepancy between her testimony and what she said at the border respecting when she met her aggressor. She testified that she was very nervous during the whole process and did not know what she was talking about when I asked her questions. She further testified that when she arrived, she felt intimidated by the officer who asked her questions, and her mind went blank. She testified that she was fearful that she would be sent back to Peru. She was very afraid of what would happen when she arrived because she did not know whether she would be permitted to stay or not. She further testified that she had not been sleeping well for a month prior to coming to Canada and she was very scared and nervous.

 

[26]     After the first sitting of this hearing, the principal claimant wrote a letter which I accepted into evidence[10]. In it, she explained that despite my being, in her words, kind and generous with her, she was very intimidated when talking tome. She described how she was filled with panic and nerves and how her body started to tremble and shake when testifying because of the unpleasant moments she lived through and because she did not want to remember because it caused her to live it again which is to return to the past.

 

[27]     The principal claimant did an excellent job of describing how this process and having to talk about traumatic events made her feel. I only note how she described how I treated her for the purpose of detailing that even in the face of someone being kind to the principal claimant, she was in a state of confusion and anxiety throughout the hearing. I have taken this into account when assessing her evidence, particularly since I find that despite any contradictions, the principal claimant experienced exactly what she told me she experienced.

 

[28]     I have considered the date discrepancy in the context of all the rest of the principal claimant’s testimony, including her letter, and the associate claimant’s testimony, and I find that the fact that she told the border official a different date for when she first met her aggressor than the date she testified she met him is not determinative of her credibility with respect to the events themselves for the reasons set out below. In addition, I find on a balance of probabilities that the principal claimant is a lesbian, and my decision largely deals with that, though I have also addressed the intimate partner violence.

 

[29]     With respect to the principal claimant’s testimony generally, I also note that it was sometimes very difficult to get the principal claimant to open up. It became apparent that she is not an open person in the sense that speaking about sex and even relationships is not easy for her. Having spent a lot of time listening to the principal claimant, I find that this is partly because of her personality and partly because of the trauma she suffered. I commend her for doing her very best to answer my questions even when it was visibly very difficult for her. I will address her sexual orientation first.

 

[30]     With respect to the principal claimant’s identity as a lesbian, she testified that she knew at the age of 8 or 9 that she was attracted to other women. She testified that it made her feel weird and strange because in Peru one does not see gays or lesbians on the street.

 

[31]     She testified that she never acted on her attraction to another female when she was in school, though she went out with other women casually in a group. She testified that there was no way she could express her sexual identity openly in Peru, and she never had a stable relationship there.

 

[32]     The principal claimant testified that in school and on the street, she suffered a lot of bullying merely because of the way she walked and dressed, which made people assume that she was a lesbian. It was clear from her testimony that this caused her a significant amount of distress.

 

[33]     She testified that she has not had sex with anyone voluntarily. She equated me asking her about having a sexual relationship to living together, and when I asked about sexual relationships, she told me that she has not lived with anyone. Her reserve and hesitation were apparent from the fact that she has not had anything more than a casual dating relationship even since coming to Canada. She testified and I find that her experience with her aggressor traumatized her, and this has affected the way she approaches any relationship.

 

[34]     Her hesitancy to have any relationship that is not just casual does not change my finding that she is a lesbian. I accept her testimony with respect to her early recognition of how she was different, and that she is attracted to women and has been since she was quite young. I also find from her testimony that is not an easy thing for her to discuss, which in my view is not surprising given the violence and bullying she has endured.

 

[35]     The principal claimant testified that she told her sister, the associate claimant, and some friends about her sexual orientation while still in Peru. The principal claimant testified that her sister accepted her no matter what. The associate claimant testified that their grandmother who raised them also accepted the principal claimant for who she was and raised the claimants to know that there was nothing wrong with someone who was not heterosexual.

 

[36]     The associate claimant also testified however about how her sister was treated by others because they assumed she, the principal claimant, was a lesbian even though there was no way for them to know for certain. She further testified that in Peruvian society people treat people they assume are not heterosexual like garbage, including hurling insults at them on the street.

 

[37]     The associate claimant testified that she knew all along about her sister’s sexual orientation. She testified that it was easy to see that she was not like the other girls on the block and described her as rougher. It is of note that even the associate claimant who supports her sister unconditionally assumed, like others, that her sister was not heterosexual just because of the way she appeared.

 

[38]     The principal claimant was fortunate to have friends who accepted her for who she was. She testified that some of her friends were also from the LGBTQ+ community. Despite finding some acceptance with these friends it was also clear that the effects of the bullying and violence perpetrated against her because of her sexual orientation have had a long-term effect on her. In addition, she testified, and I find that there was no way she could have openly shown any affection to someone of the same sex while in Peru.

 

[39]     Since coming to Canada, the principal claimant testified that she feels freer because she sees people like her. She joined the XXXX where she has been able to talk about her past experiences and also spend time with others who share her sexual orientation. She also joined

Group Hola and when I asked about it she spontaneously showed me on her phone that it is an LGBTQ group for Spanish-speaking individuals. The principal claimant also included some texts between her and someone with whom she had a casual dating relationship

 

[40]     I find that the principal claimant is a lesbian and is at risk of persecution in Peru.

 

[41]     I further find that the principal claimant experienced intimate partner violence at the hands of her aggressor in part because she was a lesbian. She testified in detail with respect to how she met her aggressor at a bar she used to sometimes frequent after work. She testified that he struck up a conversation with her once and that he seemed friendly. However, the second time she ran into him he offered to walk her home, and when they arrived, he forced his way into her home and sexually assaulted her, telling her he knew she was a lesbian and he would teach her how to be a woman. She provided a medical report[11] substantiating her injuries. She testified with respect to how she obtained this document, and I have no reason to doubt its authenticity. She also provided a statement from a neighbour whom she testified saw her after the attack happened[12]. The principal claimant also testified compellingly about the doctor saying: “Child, please go and file a complaint. This is not something that should happen.”

 

[42]     She testified how scared she was to report the attack to police, though she did so anyway and provided a police report[13]. I have no reason to doubt the authenticity of this report. The principal claimant also testified with respect to the other attacks in relation to which she also provided medical and police reports[14]. When she reported to police, she felt like the police did not take her complaints seriously, first because she is a lesbian, and second, because she discovered that her aggressor is a policeman. She testified that while she was at the police station, the policemen to whom she reported the incident knew her aggressor. Her complaints did not proceed.

 

[43]     I find that the principal claimant faced intimate partner violence at the hands of her aggressor partly because she is a lesbian.

 

[44]     On a forward-looking basis, the principal claimant testified that she saw her aggressor outside her house again in 2018, but nothing happened on that day. The fact that the principal claimant testified that nothing happened that day enhances her credibility with respect to the other incidents. Despite nothing happening to her that day, however, I find that her aggressor was still interested in finding her. His interest in finding her did not cease that day because he subsequently tracked down the associate claimant on three occasions looking for the principal claimant.

 

[45]     The associate claimant testified that after the assault and before she left Peru, she sent her children to live with their father and they have not been going to school in person both because of the assault and because of the pandemic.

 

[46]     The principal claimant testified that she is certain that her aggressor will find her if she returns to Peru. She testified and I find that even though she moved within Peru prior to coming to Canada, he found her and assaulted her again. As indicated, he then also tried to find her through her sister. I find that the only reason there has not been any contact since is because the principal claimant and the associate claimant are in Canada.

 

[47]     I find that the principal claimant has shown on a balance of probabilities that she is at risk of persecution both because of her sexual orientation and because of the intimate partner violence against her by her aggressor. I turn now to an assessment of the associate claimant’s claim.

 

Associate Claimant

 

[48]     I did not have any credibility concerns with respect to the associate claimant’s testimony. She testified spontaneously and without hesitation or exaggeration. In addition, her testimony was consistent with her Basis of Claim form and the other documentation in the file. I accept her testimony as given.

 

[49]     The associate claimant testified with respect to the assault perpetrated against her by the principal claimant’s aggressor. She testified that a few months after the principal claimant left Peru, her aggressor came looking for her. She testified that she was on her way home from work when a man approached her, greeted her and then assaulted her. She testified that the man grabbed her by the hair and wanted to know where her sister was. He assaulted her and told her that he would kill her and her family. She testified that the only reason he stopped is because there were people going by who began yelling and telling him to stop.

 

[50]     The second time the principal claimant’s aggressor found the associate claimant was in a different city where she was living in a rented room with her children. The aggressor yelled at the house and shot at the door. On the third occasion, the principal claimant’s aggressor assaulted her, and when her son tried to defend her, he assaulted him. The aggressor threatened that he would kill the associate claimant and her children. The associate claimant provided medical reports[15] relating to the injuries she and her son suffered.

 

[51]     The associate claimant also tried to report the incidents to police (and provided police reports[16]), but nothing was done. She testified, and one of the reports shows, that the aggressor was arrested on one occasion, but he was released. I have no reason to doubt the authenticity of these reports. The associate claimant testified that when she went back to the police to ask about her reports, they gave her many excuses about why nothing was clone, including that they had lost their internet signal. After the third incident, the associate claimant left Peru.

 

[52]     I find that the associate claimant has established her subjective fear of the principal claimant’ s aggressor on a balance of probabilities.

 

[53]     With respect to both claimants, there must also be an objective basis for their subjective fear, which I address next.

 

Objective Basis

 

[54]     With respect to the principal claimant’s sexual orientation, it is reported that Peru is a country where violence based on sexual orientation remains all too frequent[17]. Even though the country is ranked as being a moderate threat to LGBTI people, a survey showed that 63% of participants stated that they had been the victim of discrimination or violence[18]. It is reported that the environment of fear and frequent discriminatory experiences has very negative consequences for Peruvian LGBTI people, who tend to isolate themselves, feel guilty and powerless in the face of what happens to them, and even turn to the consumption of alcohol and drugs[19].

 

[55]     It is further reported that “in Peruvian society, strongly-held prejudices against the LGBTI population […] continue today, and that in certain cases, these prejudices are expressed in acts of violence[20]. As in the case of the claimants, it is reported that these violent acts are sometimes committed by members of the national police[21]. I find that there is an objective basis for the principal claimant’s subjective fear.

 

[56]     With respect to the intimate partner violence, it is reported that violence against women and girls, including sexual, physical and psychological abuse, was a serious, underreported national problem[22]. The Ministry of Women and Vulnerable Populations reported more than 57,000 cases of violence against women between January and July, including 92 femicides and 79 femicide attempts; 46 percent of reported cases included physical violence, 56 percent included psychological violence, 46 percent included physical violence, and 15 percent included sexual violence, which represented a 16 percent increase over 2020[23].

 

[57]     While the law prohibits domestic violence and criminalizes rape with penalties for rape of up to a minimum 14 years and a maximum of life imprisonment, enforcement of sexual and domestic violence laws was inadequate, and police action to enforce the law with respect to femicide was weak and slow, and prosecution was often lengthy and ineffective[24].

 

[58]     Generally, with respect to violence against women, it is noted that women in Peru are subjected to violence in all spheres of life, and that the continued existence of widespread traditional patriarchal attitudes and values (machismo) perpetuates a culture of violence against women[25].

 

[59]     I find that the claimants have established that there is an objective basis for their subjective fear and that they have a well-founded fear of persecution in Peru.

 

State Protection

 

[60]     I find that adequate state protection would not be reasonably forthcoming in this particular case.

 

[61]     States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness[26].

 

[62]     The claimants argued that they will not be able to get state protection in Peru. I agree and find that state protection would not be reasonably forthcoming to them if they go back.

 

[63]     First of all, it is reported by NGO representatives that law enforcement authorities in Peru repeatedly failed to protect and, on occasion, violated the rights of LGBTQI+ citizens[27]. In fact, in an April 2020 Inter-American Court case, it was found that Peru was responsible for discriminatory torture against and LGBTI person and ordered Peru to combat such discrimination[28], which included violence. As indicated, it was found that the violence is sometimes committed by members of the national police. In this case, the principal claimant reported the violence against her with no success.

 

[64]     Access to justice for victims of gender-based violence was also inadequate. This includes enforcement often being at the discretion of the relevant authorities and undue dismissal of charges being common[29]. It is further reported that although there are laws in place requiring police protection of victims, enforcement of the law was lax[30]. Violence against women was a serious, underreported problem[31].

 

[65]     In this particular case, both the claimants reported the violence against them with no real action taken by police. As such, I find that the claimant will not be able to access adequate state protection in Colombia and that the presumption of state protection has been rebutted.

 

Internal Flight Alternative

 

[66]     The final issue is whether the claimants have a viable internal flight alternative (IFA) in Peru. In order to determine whether an IFA exists, I must assess the two-prong test of whether there is any location in Peru in which the claimants would not face a serious possibility of persecution and whether it would be reasonable in all the circumstances to expect them to move to the proposed IFA.[32]

 

[67]     With respect to the principal claimant, I find that with regards to possible viable IFAs, given that the treatment, including violence, of people from the LGBTI community is consistent throughout the country, I find there is a serious possibility of persecution for her throughout Peru and there is no viable IFA for her in Peru.

 

[68]     With respect to the associate claimant, I find that there is also no viable IFA. After the principal claimant’s aggressor found the associate claimant and threatened her the first time, she moved to a different town. Despite this, he found the associate claimant and threatened and assaulted her again. The principal claimant also had moved and her aggressor found her, too.

 

[69]     The claimants testified that the principal claimant’s aggressor appears to be obsessed with her. While the claimants cannot know this with absolute certainty, nor can they know with absolute certainty that he will try and find them again if they return to Peru, I find on a balance of probabilities that he will. His actions are consistent with someone who is obsessed with the principal claimant and showing her with violence, what it means, in his abhorrent view, to be a woman.

 

[70]     Given that the principal claimant’s aggressor is a police officer and has access to information he may not otherwise have, and given he was able to track clown the claimants after they each moved, I find he has both the motivation and means to locate them, and therefore there is a serious possibility that the claimants would be at risk of persecution from him anywhere they went in Peru. I find that the principal claimant’s aggressor will be able to find the claimants through his police connections if they return. As such, I find the first prong of the IFA fails.

 

[71]     In conclusion, I find that the claimants do not have a viable IFA in Peru.

 

CONCLUSION

 

[72]     Based on the analysis above, I find that the claimants are Convention refugees pursuant to section 96 of IRPA. Accordingly, I accept their claims.

 

(signed) D. Kershaw

 

June 23, 2022

 

 

 

[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

 

[2] I recognize that the principal claimant had no desire for an intimate partnership with her aggressor, but his actions suggest that he perceived that there could be

 

[3] Exhibit 2.1 and 2.2

 

[4] Exhibit 1

 

[5] Exhibit 7

 

[6] Exhibit 1

 

[7] Exhibit 7

 

[8] Exhibit 1

 

[9] Maldonado [1980] 2.F.C. 302 (C.A.))

 

[10] Exhibit 8

 

[11] Exhibit 4

 

[12] Exhibit 4

 

[13] Exhibit 4

 

[14] Exhibit 4

 

[15] Exhibit 7

 

[16] Exhibit 7

 

[17] Exhibit 3, National Documentation Package for Peru (April 29, 2022 version) (NDP), Item 5.1

 

[18] NDP, Item 5.1

 

[19] NDP, Item 5.1

 

[20] NDP, Item 6.4

 

[21] NDP, Item 6.4

 

[22] NDP, Item 2.1

 

[23] NDP, Item 2.1

 

[24] NDP, Item 2.1

 

[25] NDP, Item 5.1

 

[26] Ward [1993] 2 S.C.R. 689

 

[27] NDP, Item 2.1

 

[28] NDP, Item 6.4

 

[29] NDP, Item 2.1

 

[30] NDP, Item 2.1

 

[31] NDP, Item 2.1

 

[32] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).