Citation: 2020 RLLR 58
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2020
Panel: Selena Eng
Counsel for the Claimant(s): Richard Addinall
Country: Peru
RPD Number: TB8-18682
ATIP Number: A-2021-00655
ATIP Pages: 000194-000198
DECISION
[1] MEMBER: This is the decision of the claim of the principal claimant [XXX] in file number TB8-l8682. The claimant is a citizen of Peru and is claiming refugee protection pursuant to Section 96 and 97 and the Immigration and Refugee Protection Act.
[2] The facts and evidence alleged in support of the claim are set out in the claimant’s respective Basis of Claim form. In summary, the claimant fears harm in Peru from his ex-partner on the basis of his sexual orientation as a gay man. I have determined that the claimant is a Convention refuge or a person in need of protection pursuant to Section 96 and subsection 97(1) of the IRPA.
[3] In making this assessment, I have considered all the evidence, including the oral testimonies, the documentary evidence, and counsel’s submissions, and the documentary evidence.
[4] The claimant arrived in Canada with a fraudulent [XXX] passport. The claimant testified that he paid a [XXX] smuggler for the documents to come to Canada, as it was easier to go through [XXX] than to apply for a [inaudible]. The claimant provided a Peru issued national identification card to verify his Peruvian identity when he entered Canada. I find the claimant’s testimony regarding his identity and how he was able to come to Canada to be credible. I find, on a balance of probabilities, that the claimant’s identity was established by the certified true copy of his Peru issued national identification card and accepts that the claimant is a citizen of Peru.
[5] Regarding credibility, in the assessment of this claim, I have taken into consideration the Chairperson’s Guideline that deals with the assessment of claims from persons who are members of the LGBTQI community. They are also referred to as the SOGIE Guidelines. I find that the claimant testified in a straightforward fashion with regards to the central elements of the claim. I find that the claimant’s overall testimony was credible.
[6] The claimant testified about identifying and living as a gay man in Peru. The claimant testified about meeting his ex-partner in [XXX] 2017, moving in together in [XXX] 2017, and about his partner becoming increasingly jealous, possessive and accusing him with being with other men, as well as beating him, especially when he was drunk. I also heard testimony regarding the partner’s harassment of the claimant at his workplace [XXX], and that a restraining order was obtained, that did not deter the ex partner from finding him at the [XXX].
[7] The claimant testified about an incident on [XXX] 2018, when his ex-partner threw a stone at his head, opening up his skin, along with breaking a bottle over the head and also kicking and punching the claimant while threatening his life. The claimant testified about going to the hospital and obtaining treatment. He also filed a police report at the station and indicated the police made fun of him for deciding to become gay and told him to go back to his husband and cook for him. The claimant testified about the police telling him that they would investigate, but the claimant did not hear back from police despite following up a week later. The claimant testified about forcing his ex-partner to leave his apartment for good, around [XXX] 2018. The claimant testified about an incident where he was waiting at a bus stop on [XXX] 2018, when he was kidnapped by four men, including his ex-partner. The claimant was beaten, cut, and raped by his ex-partner and the men. The claimant testified that he woke up in a hospital and was advised that- by a nurse -that a lady had found him and brought him there. The claimant remained in hospital for two days, and did not return to his place of rental or his apartment unit when he left and, instead, he went to the home of the [XXX], where he worked, for help.
[8] The claimant also testified about his ex-partner having many friends in the police force and being afraid to go to police.
[9] The claimant testified that he was estranged from father and other family members, and that is the reason why he went to the couple that [XXX] for help. The claimant testified they assisted him with obtaining money and helping him to go to [XXX] to come to Canada, where he was told by his other gay friends that he could obtain protection.
[10] The claimant went to [XXX] to obtain his travel documents before arriving in Canada to make a refugee claim.
[11] Regarding the claimant’s supporting documents, he has provided several of them that are on file. A police report dated [XXX] 2018, noted that the claimant filed a corn plaint against his ex-partner, attacking him when he attempted to terminate their relationship due to the increase psychological and physical abuse. The report states that the claimant had punches to the face and kicks, a bottle being broken over his head, as well as threats from the ex-partner that he was going to kill him. The report noted that the claimant was brought to the hospital by ambulance. There was also a medical report indicating that the claimant was treated in an emergency unit for a [XXX], on [XXX] 2018. Another medical report notes that the claimant was treated on [XXX] 2018, for [XXX]. The claimant also provided letters from friends in Peru who attested to witnessing verbal and physical abuse against the claimant by his ex-partner. I find that the reports corroborate the claimant’s testimony regarding the threats and attacks by his ex-partner, and the medical treatment he received. I find that the claimant was attacked on more than one occasion and required medical treatment. I find that the claimant’s concerns were not addressed by police, and that the claimant has established his subjective fear of persecution in Peru.
[12] Regarding the claimant’s identity as a gay man, I note that he had a daughter with a woman in Peru. The claimant testified he was very young when he had sex with woman one time, when they were both drinking and celebrating the end of school. The claimant testified he did not find out about his daughter until she was one-years old and has not had any contact with them since his daughter was four. The claimant testified about being attracted to men and only in relationships with men. The claimant provided a [XXX] report from a hospital, dated [XXX] 2018, which indicates he was experiencing [XXX], and [XXX] to his sexual orientation. The report notes that the claimant was receiving [XXX]. The claimant also provided letters from friends from Peru and Canada that speak to his sexual orientation as a gay man. The claimant also had newcomer orientation training record, dated [XXX] 2018, for the 519 Organization in Toronto, dedicated to advocacy inclusion for the LGBTQ communities in Toronto. I find that the claimant testified in a credible and straightforward manner, and accepts the claimant’s explanation as to why he had sexual relations with a woman which resulted in the birth of a daughter, despite identifying as a gay man and being attracted to men. I find that the claimant has established on a balance of probabilities that he is a gay man and that he has a subjective fear from his ex-partner in Peru.
[13] Regarding the claimant’ s failure to claim refugee status in [XXX], the claimant was asked why he didn’t want to apply for refugee or more permanent status there. The claimant testified that it was his goal to come to Canada because he heard it was more friendly to the LGBTQI community, and that he only entered [XXX] to obtain the documents to come to Canada. Based on the evidence before me, I find that the claimant did not have permanent status in [XXX] and was only present in [XXX] as a transit to Canada. I do not find that the claimant’ s lack of applying for refugee status in [XXX] undermines the credibility of his claim. Regarding the objective basis and country conditions in Peru, I find that there is general, widespread corruption within the police and judiciary in Peru. The 2020 Freedom in the World report for Peru indicates that government corruption remains a critical problem in the country. The law enforcement authorities frequently investigate and persecute corruption allegations. On the issue of the application of the rule of law, the report found that the judiciary is perceived as one of the most corrupt institutions in the country. The report also found that constitutional guarantees of due process are also unevenly upheld.
[14] With regards to country condition for LGBTI, or lesbian, gay, bisexual, transgender and intersex individuals, the United States Department of State’s Country Report on Human Rights Practices for 2019 for Peru, or the D-O-S report, DOS report, indicates that the law in Peru recognizes the right of individuals to file legal claims of discrimination based on sexual orientation or gender-identity. However, the DOS report noted that the government officials, non-government organizations, or NGOs, journalists and civil society leaders, reported widespread official and societal discrimination against the LGBTI persons in employment, housing, education and healthcare, based on sexual orientation or gender-identity. NGOs also reported an increase in forced or coerced conversion therapy in Peru.
[15] Increasing LGBTI rights in Peru is also moving slowly. In the National Report 2017 submitted to the Human Rights Council for Peru, it was noted that the National Human Rights Plan for 2017 to 2021 was to include special protections to be included for LGBTI persons. It was noted that the national human rights coordinator that ail mention of protection on the grounds of sexual orientation and gender-identity have been removed from Peru’s National Plan for 2014 to 2016, despite LGBTI groups having participated in its preparation. The document notes that the new National Human Rights Plan for 2017 to 2020 was under consultation and there continued to be challenges with the coordination, implementation, monitoring and evaluation of plans.
[16] The US DOS report also further indicates that NGOs continue to report that law enforcement authorities repeatedly fail to protect and often even violated the rights of LGBTI citizens. The United Nations Human Rights Council Compilation on Peru further cited concerns at reports of harassment and violent attacks, some of which had resulted in death against the lesbian, gay, bisexual and transgender community, by members of the national police, armed forces, municipal security patrols and prison officials. I find that there is objective basis for the claimant’s fear of his ex-partner as an individual belonging to the LGBTI community, and that he has a well-founded fear of persecution in Peru.
[17] Regarding state protection, there is a presumption that countries are capable of protecting their citizens. The claimant bears a legal burden of rebutting the presumption that adequate state protection exists by educing clear and convincing evidence which satisfies on a balance of probabilities. I’ve reviewed the country conditions set out in the National Documentation Package and find that the claimant has rebutted the presumption of state protection with the evidence provided.
[18] I find that, in the claimant’s circumstances, the state has not been willing or able to protect him. I find that the claimant’s ex-partner attacked the claimant causing injury that required hospital care. Despite the attack, I heard evidence that police did not take the claimant’ s complaint seriously, instead making fun of the claimant for being gay. I find that the police in this case had the information of the identity of the perpetrator, but nothing was done, even after the claimant followed up with police. The claimant’s ex-partner was not arrested or charged for the attack or the death threats against the claimant. I also heard evidence of the claimant’s ex-partner being able to continue to move freely in Peru. Subsequently, the claimant was attacked, threatened, and raped by his ex-partner and other men. I find that, on a balance of probabilities, that the claimant’s ex-partner has continued interest in the claimant and would continue to seek him out, should the claimant return to Peru. Based on the documentary evidence, there has been a Jack of effective implementation of protection for LGBTI individuals in Peru. I find that the documentation does not indicate protections to be adequate at the operational level for LGBTI individuals. I do not find the claimant’s return to Peru would allow him to obtain justice against his ex-partner, or the claimant would receive further protections or assistance from police, should he continue to face threats or attacks. The assumption that the claimant will be able to receive meaningful protection in Peru from the state is contradicted by the country conditions evidence. I am satisfied that the claimant has rebutted the presumption of state protection.
[19] Regarding internal flight alternative, the question of whether an internal flight alternative exists is an integral part of the Convention refugee definition. It arises when a claimant, who otherwise meets all elements of the Convention refugee definition in his or her home area of the country, nevertheless, is not a Convention refugee because a person has an IFA elsewhere in that country. I find that the claimant’s ex partner is a violent person who has demonstrated continued interest in the claimant after their breakup, going so far as to kidnap him with additional friends to attack him, after they broke up. I also find the claimant testimony regarding his ex-partner’s ability to continue moving freely and threatening him in Peru, to be credible and supported by the evidence provided. I find that the claimant, as a gay man, would be vulnerable to persecution throughout Peru where homosexuality is condemned by society and the police. I also heard evidence of the claimant’s ex-partner has friends in the police force, and he would be able to pay bribes to locate the claimant wherever he went in Peru. I find that the issues with receiving protection from the state for LGBTI individuals, who are [inaudible] by police, appears to be present throughout Peru. As the claimant has rebutted the presumption of state protection and because the agent of persecution has shown motivation to continue to track the claimant, I do not find the claimant has a viable internal flight alternative in Peru.
[20] In conclusion. I find that the claimant has established a serious possibility of persecution in Peru from his ex-partner and based on a Convention ground, namely his sexual orientation as a gay man, and I accept the claim.
———- REASONS CONCLUDED ———-