2024 RLLR 73
Citation: 2024 RLLR 73
Tribunal: Refugee Protection Division
Date of Decision: March 26, 2024
Panel: Emerald Lee
Counsel for the Claimant(s): Antonio Williams on behalf of Adela Crossley
Country: Peru
RPD Number: TC3-13816
Associated RPD Number(s): N/A
ATIP Number: A-2025-00362
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision for Refugee Protection Division for file number TC3-13816, XXXX XXXX XXXX XXXX. You are claiming to be a citizen of Peru and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[2] I have taken the following guidelines into consideration for my decision, namely Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board; and Guideline 9: Proceedings Involving, sorry, Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.
[3] I have considered your testimony and the other evidence in the case and I’m ready to render my decision orally.
DETERMINATION
[4] I find that you are a Convention refugee on the grounds of membership in a particular social group as a woman facing gender-based violence and intimate partner violence. You have shown that you face a serious possibility of persecution should you return to Peru.
ALLEGATIONS
[5] You allege that you are a lesbian woman. You further allege discrimination and violence from sorry, friends and discrimination and abuse from a former same sex partner and her family. You allege if you return you will be seriously harmed by your former partner, initial R, and her family. You allege that there is no state protection for you or Internal Flight Alternative.
Identity
[6] Your personal identity as a citizen of Peru has been established by your testimony and the supporting documents filed in Exhibits 5 and 6. Those documents include your Peruvian birth certificate, national ID, and Peruvian passport.
[7] I also find that your full name is XXXX XXXX XXXX XXXX. I find that currently in the board system, there is an error which leads to your name to be only shown as XXXX XXXX XXXX; however, your full name XXXX XXXX is the full name that is in all of your documents reviewed by me. So, I fond on a balance of probabilities that personal identity and country of reference have been established.
Nexus
[8] I find that there is a link between what you fear and one (1) of the five (5) Convention grounds, namely membership in a particular social group as a woman who faced gender-based and intimate partner violence. I therefore have, I have assessed your claim under section 96 of IRPA.
Credibility
[9] A claimant’s testimony is presumed to be true unless there are reasons to doubt it. In terms of your general credibility overall, I have found your testimony to be consistent and credible. You were able to provide spontaneous detail and straightforward testimony as well as reliable documentation to support your claim. There was no material omission, contradictions, or discrepancies. Your testimony was consistent with your Basis of Claim form and the evidence you submitted. Your credible testimony establishes the following findings of fact: You were in a same sex relationship with former partner initial R since 2018. You were able to tell me how you met R and about her family. You testified that R’s brother and father are high-ranking officers in the Peruvian police force. You told me that you had moved in with her due to some issues with your own parents and you moved into the same building where R and her family had lived. You told me that R was violent. She was often physically, psychologically, and sexually abusive in your relationship.
[10] You told me that you were sexually assaulted in 2019. You told me that you tried to file a complaint with the police, but nothing came of it. There was no follow-up from the police, but instead violent incidents began to happen to you and your family such as your father’s business being destroyed, his car windows having been broken etc. Another incident occurred at your grandmother’s house in XXXX 2019 where a brick and stones were thrown into her house. Your grandmother had filed a complaint with the police and had named R as being behind the act. This is corroborated by a police report made in your grandmother’s name. The report appears to be genuine, and I have no reason to doubt it and I attach it full weight in corroborating your allegation that R had harassed and threatened you and your grandmother.
[11] You told me that after this police report, nothing was done either. You moved to XXXX, Piura afterwards. You changed your address and your ID as instructed by the person who hired you to work at that time in XXXX. Soon after, R went to XXXX and located you. You told me that she threatened and harassed you and you were also sexually assaulted.
[12] You then returned to Lima within a few weeks, and you left Peru to come to Canada. You crossed through Mexico and the United States. You did not claim asylum in those places. You told me that your goal was always to come to Canada. You were detained in the States for XXXX (XXXX) days and the day you were released in the states was the day you later crossed into Canada. You told me that you did not want to claim asylum in the states due to homophobia in the states as well as how you were treated from the days that you were detained.
[13] The events you described in your testimony was consistent with your Basis of Claim form and the evidence you submitted. You told me that since coming to Canada, your family continues to suffer the consequences. You told me that your grandfather had passed away in an incident related to R and her family where your grandmother’s business was destroyed. You told me that your mother and aunt were threatened and harassed in an ally by R’s family. You told me that police officers would destroy and vandalize your family’s businesses.
[14] Accordingly on the whole in terms of your general credibility, I have found you to be a credible witness and therefore I accept what you have alleged in your oral testimony and Basis of Claim form. I find that you have established that you were a victim of gender-based violence and intimate partner violence on a balance of probabilities.
[15] Your subjective fear is established by your credible and corroborative testimony. I also find that your claim is objectively well founded. I have reviewed Exhibit 3 which is the National Documentation Package for Peru.
[16] Sources throughout the NDP including but not limited to items 2.1, 5.1, 5.4, and 5.5 provide evidence that violence against women is a serious problem in Peru, that women in Peru are subjected to violence in all spheres of life; at home, at school, in the workplace and public spaces, and Peru has one of the highest rates or violence against women in the region and the continuation of wide-spread patriarchal attitudes and values perpetuate a culture of violence against women.
[17] The U.S. Department of States Country Report on Human Rights Practices for 2016 states that violence against women and girls including rape, spousal rape, and sexual, physical, and psychological abuse remain a serious national problem.
[18] Freedom House states that domestic violence is an epidemic in Peru with more than half of Peruvian women reporting instances of physical or emotional abuse.
[19] Considering the objective evidence before me, I find that the claimant’s fear of persecution on the grounds of gender-based and intimate partner violence is objectively well-founded.
State Protection
[20] There is a presumption of state protection unless the country is in a state of complete breakdown. This can be rebutted with clear and convincing evidence that protection would not be reasonably forthcoming. You testified that you did not report assaults by R in the past. You did report the attacks to your grandmother’s house and your sexual assault, but you told me that the police did not do anything about it. You told me that instead police officers began to harass you and your family after you had reported those incidents.
[21] The country conditions revealed that although the law criminalizes rape including spousal rape, femicide, and domestic violence. Sources report that the enforcement of these laws is often ineffective. In addition, sources report impunity and insufficient funding to fight violence against women in both public and private spaces and create barriers for women to access justice. Peru’s human rights ombudsman indicated the state treated female survivors of physical and sexual violence with absolute neglect. In many cases, police failed to send reports of abuse against women to the family court or showed a lack of interest in processing the complaint. Above I refer to NDP item 5.1.
[22] Moreover, in considering the intersectionality of intimate partner violence and that the claimant had a same sex relationship, I find that it is even more difficult for her to have approached the authorities regarding the violence against her by her former partner.
[23] Considering the objective evidence before me, I find that the claimant has rebutted the presumption of state protection.
Internal Flight Alternative
[24] I have also considered whether a viable Internal Flight Alternative exists for you. I had proposed Arequipa. There are two (2) prongs to the test, and both must be met for a viable Internal Flight Alternative or IFA.
[25] With respect to the first prong of the test, I find that there is a serious risk of persecution in Arequipa. You testified that you moved to XXXX from Lima in order to escape the situation. You testified that R was able to locate you and assault you in XXXX. This reveals that R is motivated to seek you and has the resources to look for you. I take judicial notice that XXXX is over 1000 kilometres from Lima where you were living with R. You told me that if one drove constantly, it would two (2) days from Lima to XXXX. You also testified that R’s family is connected with the Peruvian police. You told me that your family has suffered attacks from R and the police in her quest to try to locate you.
[26] Below I am referring to items 2.1, 2.4, 2.6, and 2.7 of the NDP. The country conditions revealed that high-profile corruption scandals have eroded public trust in the government in Peru. Social state official corruption remains a critical problem in Peru and that corruption and poor resource management in the justice system undermines legal protection. Corruption and impunity at all levels of the criminal justice system exists. Examples of police operations to cover up police corruptions are outlined in a 2023 United States, United States Department of States Report.
[27] Furthermore, Peru’s civil registration system supported by a national electronic database allows authorities to monitor and track citizens and the law requires citizens to carry a national identity card. Considering the agent of persecution has close connections to the police and has access to this national database, and her knowledge of personal identifying information about the claimant, I find on a balance of probabilities the agent of persecution has the means of locating the claimant through her access to national electronic databases and strong ties with Peruvian police. I also find that R had demonstrated her motivation and ability to pursue the claimant in the future in the IFA location on a balance of probabilities. I find that R’s action of subjecting the claimant to physical, psychological, and sexual abuse threatening her and her family and engaging others to assist her to harm you demonstrates her firm intent to continue to abuse you and attempt to exert control over you in the future.
[28] For these reasons, I find that the Internal Flight Alternative test fails on the first prong and that a viable Internal Flight Alternative does not exist for you.
CONCLUSION
[29] Based on the totality of the evidence and my analysis above, I find that the claimant is a Convention refugee and I accept your claim.
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