2023 RLLR 245
Citation: 2023 RLLR 245
Tribunal: Refugee Protection Division
Date of Decision: November 23, 2023
Panel: E. Igbinoba
Counsel for the Claimant(s): Clarisa Waldman
Country: Peru
RPD Number: TC3-22697
Associated RPD Number(s): TC3-22745, TC3-22748
ATIP Number: A-2024-01360
ATIP Pages: N/A
DECISION
[1] These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX (Principal Claimant “PC”), his spouse, XXXX XXXX XXXX (Associate Claimant “AC”) and their child, XXXX XXXX XXXX XXXX (Minor Claimant “MC”) who claim to be citizens of Peru and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act[1] (IRPA).
ALLEGATIONS
[2] The claimants’ allegations are fully set out in their Basis of Claim Forms and narratives[2]. To summarize, the claimants allege that they fear serious possibility of persecution in Peru from the ruling Peru Libre party due to the PC’s occupation as an XXXX XXXX who has been XXXX XXXX on twitter and his blog on the XXXX XXXX XXXX XXXX XXXX. The PC alleges that he has been threatened and attacked due his political opinion.
DETERMINATION
[3] The panel finds that the claimants are Convention refugees pursuant to section 96 of the IRPA, as they face a serious possibility of persecution in Peru due to the PC’s political opinion.
ANALYSIS
Identity
[4] The personal and national identities of the claimants have been established on a balance of probabilities by their Peruvian passports[3].
Nexus
[5] The panel finds that there is a link between the harm the claimants fears and the Convention grounds namely political opinion for the PC and membership to a particular social group of family members for the AC and MC.
Credibility
[6] When a claimant swears that certain facts are true, this creates a presumption that they are indeed true unless there is a valid reason to doubt the veracity.[4] The panel is mindful of the difficulties faced by claimants in establishing a claim, including cultural factors and the stress inherent in the hearing room. After considering the testimonies of the claimants as a whole, the panel finds, on a balance of probabilities, that the claimants were mostly credible.
[7] The PC testified that he worked as an XXXX XXXX in Peru, a profession he started in 2009. He testified that he was specialised in XXXX XXXX XXXX where he XXXX XXXXregarding XXXX XXXX XXXX XXXX in Peru as well as his opinion and XXXX XXXX on his twitter page where he had many followers.
[8] In support of his testimony, the claimant provided documents which include XXXX XXXX certificate, XXXX XXXX card, XXXX XXXX with XXXX, screenshot of his Twitter account, email correspondence with Twitter and letters of support from HZ the claimant’s professional colleague[5]. The panel accords weight to the evidence as they establish his profile as an XXXX XXXX.
[9] The panel finds on a balance of probabilities, that the claimant has established his profile as a XXXX who has presence on Twitter.
[10] The claimant testified that he started XXXX about the Peru Libre party in 2021 where he stated the truth about the corrupt government and that they needed to be stopped. He testified about the XXXX XXXX his information and how he focused on the XXXX XXXX on the Peru Libre party which is the ruling party in Peru.
[11] The PC testified that he was a supporter of the Popular Force party because he shared similar values with the political party but did not openly support this party because of his profession as a XXXX. The PC testified that he worked closely with a XXXX, CT who was also a member of Popular Force party and they worked on how to manage social media presence and how to deal with issues regarding social media.
[12] The PC testified that he started receiving threats on Twitter sometime in XXXX 2021 but took them as the normal social media troll. The PC testified that when Pedro Castillo got into power, he became thorough about investigating him, however, he was accused of being paid to XXXX those post because of his relationship with XXXX CT.
[13] The PC testified that he started receiving threat phone calls and then in XXXX 2021 two men went to threaten his wife and son (AC and MC) at the park and told his wife to warn him to stop writing on Twitter. The PC testified that in XXXX XXXX of 2021, the members of the Peru Libre party threw stones at his window. The PC testified that he made a complaint to the police but was informed that they could not carry out an investigation.
[14] The PC testified that at the XXXX of XXXX 2021, two persons attacked him in the street close to his house, they hit him on the head and took his cell phone. The PC testified that nothing else was taken from him besides his phone, and subsequently, he noticed that his blog had been deleted, his Twitter account was closed, and the evidence of the threat calls and messages deleted. The PC stated that he could not access his Twitter account because the robbers had changed his password.
[15] The PC testified that he informed the police about the attack, and they took down his information and added to his file. The PC testified that he and the AC decided to take some measures by selling their car and buying another car in the name of the AC’s father, getting special tint permit from the police and parking the car in the house of the AC’s father.
[16] The PC testified that his friend CL who was the XXXX XXXX XXXX XXXX informed him that his name was on the list of opposition politicians and XXXX that the government was monitoring. The PC testified that they decided to leave Lima to his brother’s place in Tacna in XXXX 2021. The PC stated that members of the Peru Libre party started calling his brother’s house asking to speak with him, but his brother told the callers that the PC did not live there.
[17] The PC stated that towards the XXXX XXXX XXXX 2021, some people came to his brother’s house and tried to open the door, but his brother informed then that the PC did not live there. The PC stated that filed a complaint with the police, but they said if they did not know who tried to hurt them, they would not be able to carry out an investigation.
[18] The PC stated that his brother felt worried and did not want harm to come to his immediate family, so the claimants had to go stay with the AC’s mother in the district of XXXX. Given that members of the Peru Libre party were able to locate him in Tacna, they decided to leave Peru temporarily on XXXX XXXX, 2022 to Canada.
[19] The PC stated that he gained access to his Twitter account in XXXX 2022 and continued with his XXXX on his Twitter page. However, an unknown person called his parents home in XXXX 2022 through the landline that was registered in his name, telling his parents to inform the PC to stop posting against the government. The PC also testified that unknown people went to his parent’s house and left some bullets outside the house. Due to all the threats and harassment, the PC decided to stop posting in other not to put himself and his family in harms way.
[20] Apart from their oral testimonies, the claimants have also submitted corroborating documentary evidence to support their claim.[6] This evidence is part of Exhibits 5. The panel has no reason to doubt the genuineness of these documents and accepts them as genuine and the panel assigns the document high weight due to their probative value and relevance. Exhibits 5 contains but is not limited to the following documents:
· Letter of support from the PC’s parents stating that the PC was a victim of threats and attacks and the intimidation they experienced in form of bullets that was left outside their house.
· Letter of support from PC’s parents neighbor attesting to the threats and intimidation experienced by the PC’s parents.
· Letter of support from the AC’s mother stating that the claimants lived with her due to the threats they were experiencing.
· Letter of support from the PC’s brother attesting to the claimants staying with them in Tacna and they receive threats calls as well as unknown people asking of the claimant.
· Letter from a XXXX in Peru stating that the PC came for XXXX XXXX due to threats, harassment and physical aggression her received due to his public opinion and her proof of qualification.
· Letter of support from CT, the XXXX the PC worked with in Peru corroborating all the claimant had alleged.
· Letter of support from CN the XXXX XXXX XXXX who informed him that his name was on the list of XXXX being tracked by the government.
· Letter of support from professional colleagues and friends attesting to the PC’s passion as a XXXX.
· Police reports made by the claimants when they received threats and when the PC got attacked.
· Police report for the complaint made by the PCs parents with respect to the bullets left in their house.
· Photos of the PC showing the injuries he sustained from his attacked.
· Photos of the PC’s father with the bullets that was dropped outside their house, and
· Photos of the broken window as a result of the rocks thrown into the house of the claimants.
[21] The documentary evidence of the claimants was consistent in content and chronology with the allegations in their BOC forms and narrative, which were themselves internally consistent. The panel finds that, through their BOC, testimonies and corroborating evidence, the claimants have established, on a balance of probabilities, that the PC was an XXXX XXXX in Peru who exposed the activities of the ruling Peru Libre party on Twitter and his blog and that due to his political opinion which he published on Twitter, he faced threats culminating in an attempt against his life and that of the associate claimants.
[22] The panel had concerns with the claimants’ delay in making their refugee claim. The claimants arrived in Canada on XXXX XXXX, 2022 and made their refugee claim in February 2023. The panel asked the reason for the delay in making their claim. The PC explained that their visit to Canada was temporary but then while he was in Canada, he gained access to his Twitter account and continued his XXXX on the politics and corruption in Peru through Twitter. He stated that his Tweets exposed his family in Peru to threats and intimidation and that was when he decided that Peru was no longer safe for them to return there.
[23] The PC stated that he had to stop expressing his political opinion on Twitter and his blog for the safety of his family in Peru. He stated that he met with his lawyer in XXXX, and they commenced with their refugee claim. The panel accepts the PC’s explanation and finds it reasonable given their particular circumstances. The panel draws no adverse inference from the delay in claiming given that they were not out of status while in Canada.
[24] The panel therefore finds on a balance of probabilities that the claimants have established their subjective fear of persecution and forward-facing risk in Peru.
Objective Basis
[25] The panel notes that evidence about the treatment of political rivals in the National Documentation Package[7] is sparse. However, the lack of evidence on this specific issue does not preclude there being an objective basis for the claim. Objective evidence indicates that “Peruvian politics have long been buffeted by an evolving set of political divides. In recent years, the formal political sector has been riven by conflict between reformist and anti-reformist forces, producing political instability and profound citizen anger.[8] Reports also state that significant risks lie ahead, including heightened, political fragmentation and conflict, deeper clashes between police and protesters, and the potential rise of new, illiberal, and populist alternatives.[9]
[26] It also bears mentioning that Peru’s status declined from Free to Partly Free due to extended political clashes between the presidency and Congress since 2017 that have heavily disrupted governance and anticorruption efforts, strained the country’s constitutional order, and resulted in an irregular succession of four presidents within three years.[10] The NDP also highlights several instances of the government’s heavy-handedness against opposition, as evidenced by police violence against protestors. Human Rights Watch reported that police used excessive force in Lima against largely peaceful demonstrators protesting the removal of President Vizcarra in November 2020. Over 200 people were injured, and two protesters were killed in the protests. Security forces have also used excessive force when responding to largely peaceful protests that sometimes turned violent over mining and other large-scale development projects. According to the Ombudsperson’s Office, 17 protesters or bystanders dies in the context of protests between June 2020 and June 2021.[11]
[27] With respect to the issue of freedom of speech and how journalists are treated, the objective evidence states that problems related to freedom of expression are not primarily related to political interference or state censorship, but rather to the failure of the state to protect journalists from threats and attacks.[12] Freedom of expression is almost unrestricted in Peru. However, sometimes state agencies, but more often individuals and organized crime, exert pressure on individual journalists that report on sensitive issues such as corruption, which occasionally leads to self-censorship. This pressure has included harassment, intimidation and violence, as well as the inadequate application of libel laws.[13]
[28] According to Human Rights Watch in 2019, “threats to freedom of expression continue to be a concern in Perú.” The Government of Pedro Castillo has also had a very tense relationship with the media. The Press and Society Institute (IPYS) and the Peruvian Press Council (CPP) have issued alerts about attacks against journalists.[14] According to the United States DOS reports Significant human rights issues included credible reports of: unlawful or arbitrary killings; restrictions on free expression and media, including the existence of criminal libel laws and violence or threats of violence against journalists; serious government corruption; and lack of investigation of and accountability for gender-based violence.[15]
[29] The objective evidence also states that threats to freedom of expression remains a serious concern in Peru, as several journalist face prosecutions for their work.[16] The NDP states that journalists critical of the Castillo administration have faced harassment and attacks by government officials and their supporters.[17]
[30] Based on the testimonies of the claimants and the objective evidence in the NDP, the panel finds that the claimants’ fear of persecution in Peru for the PC being a XXXX that has expressed his political opinion against the government is objectively well-founded, and that they would face a serious possibility of persecution in Peru.
State Protection
[31] States are presumed to be capable of protecting their own citizens, except in situations
where the state is in a state of complete breakdown. 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. To rebut the presumption of state protection, a claimant has to provide clear and convincing evidence of the state’s inability or
unwillingness to protect its citizens.
[32] The claimants indicated that they approached the police to make complaints about the threats made to the AC and MC as well as the attack made on the PC but did not get the protection of the state as indicated above. The claimants stated that when the PC started receiving threats calls, the PC reported to the police, but they could not make formal complaint given that they did not know who was harassing the PC. The claimants stated that they reported to the police after the AC and MC were approached in the park, but the police only followed them home to get declarations from their neighbours and filed the report.
[33] The claimants also testified that they reported to the police when someone threw a stone at their window, the police said they would carry out an investigation and when the PC asked for protection, they said they would send an officer to patrol the neighbourhood, but nothing was done. The PC stated that he informed the police about the attack that he experienced, the police took down his information and did nothing in that regards. The claimants provided several police reports showing the various times they filed complaints with the police.
[34] Based on the testimonies of the claimant and corroborating evidence, the panel finds that the Peruvian state is unable to provide the claimants with adequate state protection, therefore, the presumption of state protection has been rebutted.
Internal Flight Alternative
[35] The panel has examined whether a viable internal flight alternative exists for the claimant. The panel identified Trujillo and Chiclayo as potential IFA locations. However, the AC testified that when they relocated to Tacna, they were easily located there. The AC also stated the agent of harm would be able to locate them in the proposed IFA given that it is ruling political party, and they have majority supporters in these proposed IFA locations.
[36] Given that the claimants are still being searched for by the agents of prosecution, the panel finds on a balance of probabilities that the agents of harm have the means and motivation to locate them anywhere in Peru. Accordingly, the panel finds that they test for IFA fails on the first prong. The claimants do not have a viable IFA in Peru.
CONCLUSION
[37] Based on the totality of the evidence, the panel finds that the claimants would face a serious possibility of persecution should they return to Peru. The panel therefore finds that the claimants are Convention refugee pursuant to section 96 of IRPA and accepts their claims.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1)
[2] Exhibit 2.1, 2.2 & 2.3
[3] Exhibit 1
[4] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.)
[5] Exhibit 5, Tab 2
[6] Exhibit 5, Tab 2, 3 & 4
[7] Exhibit 3, National Documentation Package for Peru, April 28, 2023 Version
[8] Exhibit 3, NDP, Item 2.12
[9] Ibid
[10] Exhibit 3, NDP, Item 1.9
[11] Exhibit 3, NDP, Item 2.3
[12] Exhibit 3, NDP, Item 1.5
[13] Ibid
[14] Exhibit 3, NDP, Item 1.9
[15] Exhibit 3, NDP, Item 2.1
[16] Exhibit 3, NDP, Item 2.3
[17] Exhibit 3, NDP, Item 2.4