Citation: 2019 RLLR 124
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: S. Seevaratnam
Counsel for the Claimant(s): Richard M. Addinall
Country: Peru
RPD Number: TB7-25047
ATIP Number: A-2021-00256
ATIP Pages: 000034-000044
REASONS FOR DECISION
[1] The claimant, [XXX], claims to be a citizen of Peru, who is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1
[2] The claimant alleges that he fears returning to Peru due to his membership in a particular social group, as a homosexual man.
[3] The panel has carefully considered the Chairperson’s Guideline Number 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity Expression (SOGIE Guidelines)2 prior to assessing the merits of this claim.
ALLEGATIONS
[4] The details of the allegations are outlined in the claimant’s Basis of Claim (BOC) Form.3 A synopsis of the allegations is as follows.
[5] The claimant is a gay man, who was born and raised in Trujillo, Peru. The claimant testified that he realized at the age of 8 that he was attracted to boys. He had his first same-sex encounter with his classmate, [XXX],4 when he was 16 and had his first relationship when he was 18 with [XXX].5 The claimant explained that he was in love with [XXX], but two years into their relationship, [XXX] began to assault and humiliate the claimant in front of his friends. He became verbally and physically abusive. The claimant explained that when he threatened to terminate their relationship, [XXX] promised to change, but his violent behaviour continued.
[6] The claimant testified that, at age 20, while he was intoxicated, he had a sexual relationship with a woman named [XXX]. It resulted in a pregnancy and the birth of their son, [XXX].6 The claimant explained that he was prohibited from having any contact with their son when he disclosed to [XXX] that he was gay, as she did not want their son to know that his father is gay. She wanted the claimant completely out of both their lives.
[7] The claimant testified that on September 23, 2010, [XXX] pleaded with him to join him for dinner and the claimant accepted, in hope that the issues between them could be resolved and the violent behaviour would be terminated. After dinner, the claimant was driven by [XXX] to his home. At [XXX] home, there were two men there that the claimant did not recognize. [XXX] and the two men beat the claimant and sexually assaulted him. He was stripped naked and forcibly confined to a room, where he was locked for a week and mistreated. On September 30, 2010, the claimant managed to escape through the window and attempted to file a report with the San Juan de Lurigancho police.7 The police, upon discovering the claimant to be a gay man, punched him, insulted him and called his a “rosquete,” a derogatory expression for a gay person in Peru.8 The police threatened to “disappear” him and remarked that “all rosquetes should die.”9 They spat on his face and demanded he leave. The claimant testified that he was frightened by the police. The claimant further explained that he went to the hospital, seeking medical treatment, and he was denied any access to medical assistance due to his sexual orientation.
[8] On May 12, 2011, the claimant testified that [XXX] came to his family home and physically assaulted him and threatened his father. Both the claimant and his father went to the police station to file a report and the police ridiculed his father for bringing a “daughter” into the world.10
[9] Fearing further reprisals by [XXX] against his family, the claimant permanently left his family home and tried to hide from his assailant by moving to different states within Peru.11
[10] On March 3, 2013, [XXX] approached the claimant in Ayacucho and injured him by hitting him on the head with a hammer,12 causing the claimant to lose consciousness.
[11] On November 28, 2015, [XXX] approached the claimant in Pucallpa and hit him on the forehead with a gun. The claimant fell on the street. He feared that he was going to be shot by [XXX] and screamed for help. [XXX] fled and the claimant was assisted by two women who took him to the hospital. The claimant received medical attention and made a police report.13
[12] On April 1, 2017, the claimant was forcibly removed by three men from his uncle’s home, who punched him and hit him with the butt of a gun. The claimant recognized two of the men from the incident on September 23, 2010, at [XXX] home. The claimant stated that he was fearful for his life and resisted, but he was overpowered by the three men. They dragged the claimant to the car where [XXX] was seated. The men placed a plastic bag on his head and forcibly tied his hands and legs. After a long journey by car, he was taken to a room and savagely beaten and raped. They forced a piece of wood into his anus.14 The claimant lost consciousness.15
[13] The claimant testified that he gained consciousness at the hospital and he was informed by the attending nurse that he was found naked near the recycling garbage bin, by workers who thought he was dead. He was brought for medical attention when they discovered he was still breathing and the treating physician contacted the police and a medical report and a police report were made.16 The claimant testified that the police stated that they would pursue [XXX] but they failed. [XXX] continued to threaten the claimant by telephone. He stated that he is now HIV positive. He does not know whether he was infected by [XXX] or his three friends.
[14] The claimant testified that [XXX] is a [XXX]. His family owns and operates three [XXX] in different regions in Peru, such as San Juan del Lurigancho and Santa Anita. The claimant further testified that the police are homophobic and susceptible to bribery and corruption. He believes that [XXX] is able to locate the claimant, through financial rewards to the police, who would know his location through his national identity card.
[15] The claimant relocated to several different states in Peru and he was always discovered by [XXX]. He stated that there is a societal stigma against homosexuality and the police and members of the community are homophobic; thus, he is vulnerable as a homosexual man with HIV. He further stated that there is no safe place for him within Peru. Therefore, fearing for his life, the claimant fled Peru and sought protection in Canada.
DETERMINATION
[16] The panel finds the claimant to be a Convention refugee. The panel’s reasons are as follows.
IDENTITY
[17] In Exhibit 1,17 the claimant has provided a copy of his National Identity Card issued by the Republic of Peru and certified to be a true copy on December 16, 2017.
[18] In Exhibit 7, the claimant has submitted a copy of his passport issued by the Republic of Peru.18
[19] In Exhibit 5, the claimant has provided a copy of his Birth Certificate which indicates that he was born at Central Hospital no. I, in the District Council of La Victoria, in the province of Lima and the Republic of Peru, to parents who are both nationals of Peru.19
[20] In Exhibit 6, the claimant has provided photographs with his friends from the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community20. Furthermore, the Immigration Referral Form, certified to be true on December 18, 2017, by the Canada Border Services Agency (CBSA) officer in Exhibit 1,21 indicates that the claimant is HIV positive. The claimant was referred for medical treatment by the CBSA through the Interim Federal Health Program, and it was provided.22
[21] The panel finds the claimant to be a HIV positive, gay man who is a national of Peru.
CREDIBILITY
[22] The panel is cognizant of the leading jurisprudence on the issue of credibility. Maldonado23 stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.
[23] The claimant responded to all questions posed by the panel and his counsel, clearly and directly. His testimony was straightforward. His responses were consistent with his Basis of Claim Form (BOC),24 the medical report,25 the police report,26 photographs,27 and affidavit.28
[24] The panel finds the claimant to be a credible and trustworthy witness. Accordingly, the claimant has established his subjective fear.
WELL-FOUNDED FEAR OF PERSECUTION
Objective Fear – Sexual Orientation and HIV positive
[25] Counsel for the claimant, in his oral submissions, indicated that the claimant is vulnerable to persecution based on three factors: (i) the claimant is a homosexual; (ii) he has been pursued by [XXX], his assailant, for almost a decade; and (iii) the claimant is HIV positive.
[26] The United States Department of State’s (DOS) “Peru 2018 Human Rights Report” indicates as follows:29
Government officials, NGOs [non-governmental organizations], journalists, and civil society leaders reported widespread official and societal discrimination against LGBTI [lesbian, gay, bisexual, transgender, intersex] persons in employment, housing, education, and health care on the basis of their sexual orientation or gender identity. NGOs continued to report that law enforcement authorities repeatedly failed to protect, and on occasion violated, the rights of the LGBTI citizens…
[27] The DOS report further states that “[p]ersons with HIV/AIDS faced discrimination and harassment, including societal discrimination for employment, housing, and general social inclusion.”30
[28] The 2017/2018 Amnesty International Report indicates that “Peru continued to lack specific legislation recognizing and protecting the rights of LGBTI people, who continued to face discrimination and violence based on their sexual orientation or gender identity.”31
[29] The claimant testified that he has been bullied in school by his peers for “being homosexual.”32 His family blamed his misfortune on his sexual orientation, and the police told the claimant that he and other members of the LGBT community deserve to die.33
[30] The claimant explained that he was in love with [XXX] and he initially considered him to be his partner for about two years, until he became physically violent and psychologically abusive towards him. The claimant testified that [XXX] vehemently pursued him for over a decade, since his male, “macho” ego was bruised that “a faggot would leave him.” The claimant believes that out of revenge, [XXX] actively engaged in violent acts such as severe beatings, hitting his head with a hammer,34 hitting his head with the butt of a gun,35 and heinous crimes including gang rape and threatening the claimant with death.36 Despite this atrocious and odious victimization, the police turned a blind eye; this indicates that homosexuality carries a strong social stigma in Peru.
[31] The medical report for the claimant dated April 15, 2017, from Emergency Services at the San Jose Del Callao Hospital corroborates the claimant’s allegations of gang rape and severe abuse.37 The report by the treating physician-surgeon, Dr [XXX] indicates that the claimant suffered: “Peri-anal rectum tear caused by a great degree of violence. Uncontrollable hemorrhaging due to tear or rupture of the rectal anal walls. Presence of peri-anal retraction type hemorrhaging, ecchymosis, swelling, edema on the right external side and the thighs of both legs.”38 The physician-surgeon also referred the claimant to be “sent to the Psychology Department for trauma due to physical and sexual attack.”39
[32] The Human Rights Watch report found that according to a March 2018 Peru’s National Institute of Statistics survey, “over 60 percent of LGBT people surveyed had suffered some type of discrimination or violence.”40
[33] The panel finds that if the claimant were to return to Peru, he would be susceptible to continued abuse and even death, at the hands of [XXX] and that the police will be complicit in this violence, due to their homophobic attitudes towards the claimant’s sexual orientation.
[34] The panel finds that the claimant has established his objective basis for his well-founded fear of persecution.
STATE PROTECTION
[35] There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens.41 To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.42
[36] The claimant testified that state protection would not be forthcoming because his agent of persecution, [XXX], has the financial resources to bribe and influence the police. The police threatened to make him “disappear.”43 He fears returning to the police because he would be further victimized by the police, who are homophobic. The claimant further testified that he is disadvantaged as a HIV positive, homosexual man.
[37] A report by an NGO on the violence and discrimination against LGBT persons in Peru, found that during the period of 2015 and 2016, “there were cases of discrimination perpetrated by police officers and municipal security agents in public places, in order to expel non-heterosexual couples and repress their display of affection…”44
[38] The 2019 Freedom in the World Report for Peru indicates that “[g]overnment corruption remains a critical problem in Peru, though law enforcement authorities frequently investigate and prosecute corruption allegations.”45
[39] The report further states that “a Peruvian market research company, found that 94 percent of the respondents viewed corruption as being widespread in Peru, and 82 percent believe it had increased in the last five years.”46
[40] On the issue of the application of the rule oflaw, the report found that “[t]he judiciary is perceived as one of the most corrupt institutions in the country. In July 2018, secretly recorded tapes revealed five judges trading reduced sentences or judicial appointments in exchange for bribes.”47
[41] In addition, the report found that “[c]onstitutional guarantees of due process are unevenly upheld. Lawyers provided to indigent defendants are often poorly trained.”48
[42] The current NDP49 provides clear and convincing evidence that homosexuality is heavily stigmatized in Peru and the police are among the agents of persecution. Thus, in these circumstances, the state is unable or unwilling to protect the claimant.
[43] Accordingly, the panel finds that the claimant has met the burden of proof, on a balance of probabilities, and the presumption of state protection has been rebutted.
INTERNAL FLIGHT ALTERNATIVE (IFA)
[44] The Federal Court of Appeal established a two-part test for assessing an IFA in Rasaratnam and Thirunavukkarasu:
(1) As per Rasaratnam, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”50 and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.
(2) Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claim, for him to seek refuge there.51
[45] The claimant bears the burden of proof to demonstrate that he would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment in all of Peru.
[46] The claimant testified that after [XXX] threatened his father in their family home,52 he left his hometown of Lima and relocated to different areas including Trujillo,53 Ayacucho,54 Pucallpa,55 and El Callao.56 The claimant further testified that [XXX] had approached his friends in Lima, in search of him and offering money as compensation.57
[47] The claimant made a valiant effort to relocate to different regions within Peru and he was discovered and brutally assaulted on each occasion, leaving the claimant seriously injured requiring medical attention. The claimant attempted to make police reports in the different regions and the police ignored his concerns, and ridiculed and humiliated him for his sexual orientation.
[48] The panel finds that the claimant, as a homosexual man, would be vulnerable to persecution throughout Peru where homosexuality is condemned by society and the police.
[49] Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout Peru. Thus, in the particular circumstances of the claimant, who is a homosexual man, an internal flight alternative is unavailable.
CONCLUSION
[50] For the above reasons, the panel finds [XXX] to be a Convention refugee. The claimant has established that there is a reasonable chance of persecution due to his membership in a particular social group, as a homosexual man, if he were to return to Peru today.
(signed) S. Seevaratnam
December 13, 2019
1 The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Chairperson’s Guideline 9: Proceedings Before the IRE Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
3 Exhibit 2, Basis of Claim Form (BOC), Narrative, received December 28, 2017.
4 Ibid., Narrative, lines 9-10.
5 Ibid., lines 11-15.
6 Ibid., response to q.5.
7 Ibid., Narrative, lines 28-30.
8 Ibid., lines 30-33.
9 Ibid., lines 31-33.
10 Ibid., lines 44-46.
11 Ibid., line 48.
12 Ibid., lines 49-51.
13 Ibid., lines 52-57.
14 Exhibit 5, Corroborative Documents, pp.12-14, received November 25, 2019.
15 Exhibit 2, BOC, Narrative, lines 61-70, received December 28, 2017.
16 Exhibit 5, Corroborative Documents, pp.8-14, received November 25, 2019.
17 Exhibit 1, Package of information from the referring CBSA/CIC, received December 22, 2017.
18 Exhibit 7, Claimant’s Passport.
19 Exhibit 5, Corroborative Documents, pp.1-5, received November 25, 2019.
20 Exhibit 6, Photographs, received November 25, 2019.
21 Exhibit 1, Package of information from the referring CBSA/CIC, received December 22, 2017.
22 Ibid., Interim Federal Health Certificate of Eligibility.
23 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
24 Exhibits 2, BOC, received December 28, 2017.
25 Exhibit 5, Corroborative Documents, pp.12-14, received November 25, 2019.
26 Ibid., pp.8-11.
27 Exhibit 6, Photographs, received November 25, 2019.
28 Exhibit 5, Corroborative Documents, pp.6-7, received November 25, 2019.
29 Exhibit 3, National Documentation Package (NDP) for Peru (August 30, 2019), item 2.1, s.6 – Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity.
30 Ibid., s.6 – HIV and AIDS Social Stigma.
31 Ibid., item 2.2, Rights of lesbian, gay, bisexual, transgender and intersex people.
32 Exhibit 5, Corroborative Documents, pp.6-7, received November 25, 2019.
33 Exhibit 2, BOC, Narrative, lines 31-32, received December 28, 2017.
34 Ibid., lines 49-51.
35 Ibid., lines 52-57.
36 Ibid., lines 61-70.
37 Exhibit 5, Corroborative Documents, pp.11-14, received November 25, 2019.
38 Ibid., p.13.
39 Ibid.
40 Exhibit 3, NDP for Peru (August 30, 2019), item 2.3, Sexual Orientation and Gender Identity.
41 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
42 Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Letourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), at para 38.
43 Exhibit 2, BOC, Narrative, lines 30-33, received December 28, 2017.
44 Exhibit 3, NDP for Peru (August 30, 2019), item 6.2.
45 Ibid., item 2.4, s.C2.
46 Ibid.
47 Ibid., s.F1.
48 Ibid., s.F2.
49 Exhibit 3, NDP for Peru (August 30, 2019).
50 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] I F.C. 706 (C.A.), at para 9.
51 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November I 0, 1993. Reported: 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.).
52 Exhibit 2, BOC, Narrative, lines 39-46, received December 28, 2017.
53 Ibid., lines 47-48.
54 Ibid., lines 49-51.
55 Ibid., lines 52-57.
56 Ibid., lines 61-70.
57 Ibid., lines 58-60.