2022 RLLR 47

Citation: 2022 RLLR 47
Tribunal: Refugee Protection Division
Date of Decision: September 8, 2022
Panel: Brittany Silvestri
Counsel for the Claimant(s): Marcia A. Pritzker Schmitt
Country: Peru
RPD Number: TC2-11228
Associated RPD Number(s): TC2-11231
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division in the claims of the principal claimant XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX, RPD file numbers

TC2-11228 and TC2-11231.You are citizens of Peru, you claim refugee protection pursuant to section 96 and subsection 97 (1) of the Immigration and Refugee Protection Act, the IRPA.

[2]       On the matter of your allegations, you fear the return to Peru, because you fear gender-based persecution as a victim of extortion, robbery, assault and death threats at the hands of criminal. You fear that they will continue to threaten you, abuse you and kill you.

[3]       I have reviewed and applied the Chairperson’s Guideline 4:Gender Considerations and Proceedings Before the Immigration and Refugee Board, during the hearing and in this decision.

[4]       You provided further details in your Basis of Claim forms at Exhibit 2.1 and 2.2, some of which I will highlight in this decision.

[5]       I find that you’re Convention refugees pursuant to section 96 of the Act for the reasons that follow.

[6]       On the matter of identity, I find that you have established your identities on a balance of probabilities, by copies of your Peruvian passports.

[7]       On the matter of credibility, you provided detail testimony consistent with your Basis of Claim forms and narrative, and your supporting documents including your identity documents, screen shots of threats, courts and police records, and these are found at Exhibit 5.

[8]       Accordingly, I find you are credible witnesses. You testified through the hearing in Spanish, and that is the language of your Basis of Claim form.

[9]       You provided compelling, and difficult testimony that was detailed today. This was regarding past instances of abuse including physical and psychological abuse, and the death threats against you. You gave emotional testimony and as I said, it was detailed.

[10]     On the matter of well-founded fear of persecution and risk of harm, the objective evidence at the National Documentation Package— I am going to refer to a Response to Information Request produced by the IRB which supports your fears of return, and your testimony regarding gender-based violence that you experienced firsthand.

[11]     It indicates that it continues to be widespread traditional patriarchal attitudes, machismo, and a perpetual culture of violence against women in Peru. Woman and girls are subjected to violence in all spheres of life at home, in school, the workplace, and public spaces. This report also indicates that Peru has one of the highest rates of violence against women in the region. Civil society experts claim that there is a significant underreporting, due to stigma, mistreatment, a fear of retribution, including further violence and weak competence in the authorities. Studies show that only 27 percent of women aged 18 or more who suffered an attack reported it. Most reports did not result in proper sanctions.

[12]     Based on the totality of the evidence before me, I find that you’ve both established a nexus to membership in a particular social group, as victims of gender-based persecution. Considering all the evidence before me, I find you’ve provided sufficient credible evidence to support your allegations. I find you face a serious possibility of persecution on the basis of your gender in Peru.

[13]     On the matter of state protection, you testified you reported the abuse against you, the threats to police. You testified you have never received any help from the police, there have been no arrests made against anyone. You were never told the identity of the persecutors, despite the fact that you have made police complaints and the police have appeared to anonymize their identities.

[14]     The NDP report 5.1, supports your testimony regarding a lack of adequate state protection. It indicates that a 2015, study said in approximately 81 percent of cases, no measures were taken to protect survivors of attempted killings, and it indicates that there is a need for improvement in the law. Now there are laws on the books to protect, but there is a lack of implementation, a lack of space to provide support to women as well as impunity, and insufficient funding to fight violence against women in both public and private spaces.

[15]     On the matter of the obstacles that exist, the implementation of the regulations shows that there is problems regarding training and awareness of staff who receive complaints.

[16]     The ombudsman found that 40 percent of police stations did not have adequate facilities to interview victims. The majority of police officers and prosecution office personnel did not have specialized training in the treatment of abused women.

[17]     The majority of police staff did not know that Law 30,364, existed despite their work regarding crime and investigating femicides. Authorities frequently don’t want to accept claims ,because they are not considered serious due to lack or proof provided by victims, even though under Law 30,364, such proof is not required. Between January and November 2020, there were one 171,631 calls to gender-based violence hotlines, compared to 88,399 in 2019, and there 121 cases of femicides.

[18]     The ineffectiveness of the laws further demonstrated by an increase in femicides since the passing of the law, which is actually called the Law to Prevent, Sanction, and Eradicate Violence Against Women and Members of the Family Unit, and this is supposed to focus on the protection of victims. It’s noted that government officials see gender-based violence as a priority to address, but it hasn’t translated into concrete action.

[19]     In your case, you were never provided any support from the police who by law were required to incorporate you into victims of the National Victims and witness assistant program, or to require protection measures from the court.

[20]     Item 2.1 of the NDP, indicates that prosecutors in 15 percent of these cases, flat out ignores this requirement. In your case prosecutors appear to have completely ignored the gender-based violence aspect of each one of your complaints, and as such you were not afforded access to these services.

[21]     The human rights ombudsman in Peru stated and this is a direct citation “That the State treats female survivors of physical violence with absolute neglect.” And so, you were never offered protection, police solely investigated the extortion, ignoring violence against you. And I’ll note you attended three (3) different police stations in two (2) provinces, you were extorted by police at one of them.

[22]     Accordingly, I find there is no operationally effective state protection available to you in your particular circumstances.

[23]     On the matter of internal flight alternative, I must be satisfied on a balance of probabilities, that you would not be subjected personally to a danger of torture, or a risk to life, or cruel and unusual treatment of punishment, and that you wouldn’t face a serious possibility of persecution in the proposed IFA.

[24]     Now I noted Cusco as the potential IFA, secondly that conditions in that part of the country are such, that it would not be objectively reasonable in all the circumstances, including your personal circumstances, for you to seek refuge there.

[25]     You testified you fear a criminal group. You allege they can find you throughout Peru, including in the proposed IFA of Cusco. You testified that this criminal group is connected to other criminal groups and can track your whereabouts. You provided a photo that was taken of the two (2) you at place unknown to you, many screen shots and threatening letters.

[26]     Finally, the agent of harm in your case is a non-state actor. You also gave testimony regarding past attempts that you made to relocate, including trying to live with your friend and your brother. And that you were found there as well, in two (2) different provinces which is a six (6) hour drive apart. You were emotional in explaining that you sought psychological treatment, that you installed your own security systems, electrified fences, and your fear for your physical safety given the threats to both of you, which include threats of rape.

[27]     You also gave testimony that if you were to relocate to Cusco, that corruption is prevalent throughout Peru. You’d also face violence which is pervasive against women in Peru, and you would have difficulty living in another location with no support or limited support.

[28]     As you testified, there would be no government assistance or family support available to you in the IFA. You also testified that you could not continue to live in a state of continuous fear.

[29]     The objective evidence supports your testimony regarding the prevalence of violence against women, and the corruption in and throughout Peru.

[30]     This is in the National Documentation Package again at Item 2.1, it indicates that significant human rights issues include credible reports of serious government corruption at all levels, including the judiciary, lack of investigation, and lack of accountability for gender-based violence. It also indicates there is ongoing discrimination and it’s very difficult for women, with respect to housing, employment and education.

[31]     You indicated that you’d be at risk from criminal groups in the purposed IFA, as they operated a similar manner as the gangs that threatened and harassed you both in Lima. Considering that criminal gangs operate in the IFA and engage in extortion threats, intimidation, I find that there is a reasonable chance that you would be threatened and extorted by criminal gangs if you relocated to Cusco.

[32]     Further, I find that the evidence before me, indicates that these criminals in revenge of your police reports and the resulting investigation, have the ongoing motivation and ability and capacity to find you in the IFA.

[33]     Now, the documentary evidence of the criminal actors to track you through cell phones in Peru was provided today prior to your hearing in support of your allegation that they would find you. And I agree that their persistence in tracking you from XXXX 2020,through XXXX 2021, illustrates their motivation.

[34]     I have also considered many of the relevant factors with respect to the second prong of the internal flight alternative test. Namely, your agents, your status as single women, the fact that you have no male support in Cusco.

[35]     You testified to the trials you had when arriving in Canada. You were homeless, you relied on the shelter system for XXXX (XXXX) months after coming to this country, and you rely on Ontario works now. There is no such active system of safe harbour and shelter that operates in Peru. There is a shelter system, it’s focused on emergency and basic short-term services, and emergency short-term accommodation for survivors specifically, of domestic violence and human trafficking. I find that the evidence before me indicates that it would be objectively unreasonable to expect you to relocate anywhere in Peru, on account of your vulnerability as single women with no support, and that it would be very difficult for you to obtain basic necessities such as housing and employment.

[36]     Accordingly, and based on the totality of the evidence, I find that there is no viable internal flight alternative available to either of you in your unique circumstances.

[37]     And for the foregoing, I find that you are Convention refugees, pursuant to section 96 of the Act, and the Immigration and Refugee Board of Canada therefore accepts your claims.

——— REASONS CONCLUDED ———