2023 RLLR 110

Citation: 2023 RLLR 110
Tribunal: Refugee Protection Division
Date of Decision: March 2, 2023
Panel: Olukunle Ojeleye
Counsel for the Claimant(s): Aidan Connor Campbell
Country: Peru
RPD Number: VC2-10057
Associated RPD Number(s): VC2-10058
ATIP Number: A-2024-00593
ATIP Pages: N/A

DECISION

[1]         MEMBER: This is the decision of the Refugee Protection Division in the claims of XXXX XXXX XXXX XXXX, the principal claimant, and XXXX XXXX XXXX XXXX, the minor claimant, who is now known as XXXX (ph), who are citizens of Peru. The date is March 2, 2023. The Panel has considered the testimonies and their evidence in these claims, and is ready to render a decision orally. The RPD heard these claims jointly pursuant to rule 55 of the rules. XXXX XXXX XXXX XXXX was appointed as the designated representative for the minor child included in the claim, being XXXX XXXX XXXX XXXX, who is now known as XXXX XXXX XXXX. 

[2]         Now, reaching his decision in these claims, the Panel reviewed and applied the Chairperson’s guideline 3, child refugee claimants: procedural and evidentiary issues, as well as Guideline line, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics. The claimant claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. The claimants’ allegations are fully set out in their Basis of Claim forms, as well as their attached narrative. To summarize briefly, the claimants fear harm in Peru due to the sexual orientation of the minor claimant. The minor claimant is a 17-year-old male Peruvian citizen who is transgender, while his mother, the principal claimant, is a 53-year-old Peruvian. 

[3]         The minor claimant was born and assigned the female gender. He grew up as a girl until his secondary school days, when he discovered that he identifies as a male than a female. He began to wish he could escape his female body. He started to exercise to look masculine and to wear clothing that would hide his female features. He became alienated from the girls in school, finding him to be strange. His attempts to have a romantic relationship with the female classmate, XXXX (ph), ended up with him losing his closest friend. When XXXX’s parents found out that she and the minor claimant had been in a relationship, XXXX’s parents began to tell her that the minor claimant is bad influence from whom their daughter should be kept away. As a result, the minor claimant began to experience abuse, insults, and verbal assaults from other students. 

[4]         In 2020, the minor claimant revealed his sexual identity to his parents, who initially felt shocked, but decided to embrace and support him as their only child. Afraid of the harm the minor claimant may face if his sexual identity became widely known, the parents decided that he should leave Peru for safety. The claimants arrived in Canada in XXXX 2022 for the minor claimant to pursue further education, with the principal claimant providing the (inaudible) support. A few months later, they were advised that their fears of returning to Peru could benefit from protection under the refugee process, and they decided to make a claim. Having considered the totality of the evidence, the Panel finds the claimants are Convention refugees pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution should they return to Peru. The Panel finds that the claimants’ personal identities and nationalities as Peruvians have been established on a balance of probabilities by their testimonies as well as the copies of their Peruvian passports in Exhibit 1. 

[5]         The Panel finds the claimants to be credible witnesses. They testified in a forthright manner and their were no material inconsistencies, omissions, or contradictions within their oral testimonies or between their oral testimonies and the other documents before the Panel. The minor claimant testified about when he discovered his sexual identity as well as the challenges he had faced. The principal claimant gave testimony about the persecution and discrimination the minor claimant had faced, as well as the lack of opportunity for him to access the needed therapy for him to be who he is. She testified as to how she and the minor claimant’s father have had to keep his sexual identity secret, not only because of the harm he could face, but also the rejection and the father would face from their relatives and the larger society, who would regard them as failing their parental duties. 

[6]         In assessing the claimants’ credibility, the Panel also considered the documentary evidence provided at Exhibit 4. This included a letter of authorization from (inaudible) XXXX XXXX, the father of the minor claimant, providing consent for him to travel and reside in Canada with he principal claimant, (inaudible) of texts and social media messages between the minor claimant and friends, where he conversed about his sexual identity, saying, ” I do not want to be yelled at anymore,” “I do not want to suffer anymore,” “I am scared,” etcetera. And assessment report and treatment plan from the XXXX XXXX XXXX XXXX XXXX in Richmond, BC underscoring the minor claimant’s gender identity, as well as the recommended therapy for him and transition, a copy of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. On a review of these documents, the Panel finds no valid reason to doubt the authenticity. The Panel assigns them significant weight as having probative value in substantiating his allegations. 

[7]         Taking into consideration provisions of Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics, in regards to the fluidity of sexual orientation, the Panel finds that based on the claimants’ words and testimonies the minor claimant has established on a balance of probabilities his profile as transgender and a sexual minority. The Panel finds that the minor claimant’s allegations have a nexus to the Convention ground of membership in a particular social group as a sexual minority, while the principal claimant’s allegations have a nexus to the Convention ground of membership in a particular social group as a family member and carer of a SOGIESC individual. The Panel therefore assessed the claimants pursuant to section 96 of the Act. 

[8]         The principal claimant was asked to explain the risk faced by both claimants if they were to return to Peru. She stated that the family had to hide the sexual identity of the minor claimant to avoid harm in Peru, and that they could not do so for long. She testified that she fears rejection of family members as well as harassment and physical attacks if they were to return to Peru. Given that there are no serious credibility issues with respect to the claimant’s allegations, coupled with the documentary evidence set out below, the Panel finds that the claimants have established that sexual minorities and LGBTIQ2S persons currently face a level of violence, harassment, and discrimination that may result in harm in Peru. 

[9]         Objective evidence indicates that while same-sex relationships are not criminalized in Peru, and that there has been some progress made in recent years to protect the rights of sexual minorities, serious problems do remains. According the NDP 6.1, it states that sex between consenting adults of the same sex are not penalized, but that LGBTIQ2S personals are generally negatively perceived by the conservative Peruvian society. They face discrimination because of their sexual orientation, and they may face acts of violence such as murder, rape, arbitrary arrest, and inhuman and degrading treatment in Peru. NDP 2.1 states that discrimination, harassment, and abuse of transgender individuals like the minor claimant, including by police and other authorities, was a serious problem in Peru. 

[10]      The constitution does include a broad prohibition against discrimination, and individuals in Peru can file legal claimants of discrimination based on sexual orientation. However, there are few national laws that mention sexual orientation as an explicit category for protection, leaving room for interpretations that overlook the rights of sexual minorities. Guideline 9 further underscores the fact that the absence of laws that criminalize or discriminate against LGBTIQ2S individuals in the country does not signify a lack of discrimination in that country, nor does it indicate that state protection is available, and that laws of general application can be selectively applied and enforced against LGBTIQ2S individuals in a discretionary way that may amount to persecution. NDP 2.3 reports that there exists serious discrimination against sexual minorities in Peru, including (inaudible) on the grounds of sexual orientation or sexual identity or gender identity which created barriers to access to rights as healthcare, education, employment, and housing. It was reported that the state did not have effective mechanisms in place to deal with the problems and to protect the LGBTIQ2S population. The same report gave evidence of the societal attitude, where the president reported as being opposed to legalizing same-sex marriage. In a speech on the campaign trail, he said recognition of trans people was an idiosyncrasy that should be thrown in the garbage. He has also expressed opposition to including gender (inaudible) in the school curriculum. NDP 6.4 shows that 56 percent of the LGBTIQ2S population was afraid of expressing their sexual orientation, and 72 percent of these people fear being discriminated against or attacked because of their sexual orientation. 

[11]      The claimants have testified that they are forced to hide the minor claimant’s sexual identity, and would have to conceal his sexual orientation if made to return to Peru. According to Guideline 9, having to hide one’s sexual orientation constitutes a serious interference with fundamental rights that may amount to persecution. The Panel finds that given the evidence of risk of violence and societal discrimination that sexual minorities like the minor claimant face in Peru, these conditions would compel the claimants to conceal the minor claimant’s sexual orientation in an attempt to protect him and the family members’ physical safety. Based on the totality of the evidence, the Panel finds that the claimants have demonstrated an objective basis for their subjective fear of persecution. The Panel finds that based on the minor claimant’s sexual orientation as transgender, and the principal claimant’s position as a mother who is providing emotional and psychological support to her child, considered by the larger society as (inaudible), the claimants face a serious possibility of persecution if they were to return to Peru. 

[12]      The Panel has considered whether state protection would be available to the claimants if they returned to their country, and has concluded that it is not, for the following reasons. The claimants are required to approach the state if protection might be reasonably be forthcoming, or if it is objectively reasonable to have sought protection. However, there is no requirement risk one’s life seeking ineffective protection. According to objective evidence already cited, (inaudible) made by the police to protect sexual minorities, and the educate police officers on anti-discrimination regulations, there is still discrimination of LGBTIQ2S persons by law enforcement and providing protection against risk, and that law enforcement officers have been guilty of abuse against members of sexual minorities. The Panel therefore finds that on a balance of probabilities, the state would be unwilling or unable to provide adequate state production to the claimants if they were to return to Peru. The presumption of state protection is therefore rebutted in these claims.

[13]      The Panel also considered whether a viable internal flight alternative exists for the claimants in Peru. The Panel finds that the claimants would face a serious possibility of persecution throughout the country. In line with Guideline 9, which applies that an IFA is not viable for an individual if they must conceal their sexual identity in order to live in the suggested location, the Panel finds that there is no viable internal flight alternative for the claimants within their country. Consequently, for the reasons given, and upon consideration of the whole of the evidence, the Refugee Protection Division determines that XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, who is now known as XXXX XXXX XXXX XXXX, are Convention refugees as defined in section 96 of the Act. Accordingly, the Panel accepts their claims.

——— REASONS CONCLUDED ———