TB1-08512

RPD File No. / N° de dossier de la SPR : TB1-08512 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXX XXXX XXXX XXXX Demandeur(e)(s) d'asile Date(s) of Hearing February 16, 2012 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision August 3, 2012 Date de la décision Panel Paul G.C. Robinson Tribunal Counsel for the Claimant(s) Patricia Wells Conseil(s) du / de la / des demandeur(e)(s) d'asile Barrister and Solicitor Tribunal Officer N/A Agent(e) de tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre [1] XXXX XXXX XXXX XXXX, a citizen Peru, makes a claim for protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act1 (IRPA). ALLEGATIONS [2] The claimant alleged the following: [3] In 2007, the claimant began living with her mother and her mother's new partner, XXXX XXXX XXXX XXXXin Lima, Peru. After a period of time,XXXX XXXXbegan to mistreat the claimant and her mother, which included verbal and physical abuse. In XXXX of 2008 and in XXXX of 2008, the claimant and her mother made attempts to escape this abuse by travelling to XXXX and XXXX which are approximately five and eight hours away from Lima, respectively, where they stayed for a number of weeks. XXXX convinced the claimant's mother to return after both attempts at leaving him and both she and the claimant returned to Lima to reside withXXXX XXXX. On XXXX XXXX, 2008, XXXX tried to sexually assault the claimant in their residence. The claimant's mother intervened during this incident and she was stabbed by XXXXin the hand and stomach. The claimant sought assistance from a neighbour and an ambulance was called, which took the claimant's mother to a hospital. The assault of the claimant's mother was reported to the police but the claimant did not make her own report because she was too afraid of XXXX. After leaving the hospital, the claimant and her mother moved in with her mother's sister in a different part of Lima and, while residing there, XXXX attended at this location in XXXX of 2008 with two other men and they were threatened with death by XXXX and because the claimant's mother had filed a police denunciation against him. After this incident, the claimant's mother left Peru and made a refugee claim in Canada and the claimant went to live with her Uncle XXXX. [4] In XXXX of 2009, while shopping with a girlfriend in Lima, the claimant was approached and threatened by XXXX, who also physically tried to force the claimant to come with him. The claimant's girlfriend was able to get assistance from the police and the claimant did make a denunciation against XXXX. In an effort to leave Peru, the claimant applied for a Canadian visitor's visa (CVV) but it was rejected. In XXXX of 2009, by using the USA visa of her mother, which also allowed her to travel to the USA, the claimant flew to the USA because she wanted to join her mother in Canada but she returned to Peru in XXXX of 2009 because her Uncle XXXX was seriously ill. [5] In XXXX of 2009, she began a casual relationship with XXXX XXXXand, after her uncle passed away in XXXX of 2010, she entered into a romantic relationship with him in XXXX of 2010. The claimant stayed in this relationship because she felt she needed protection from XXXXbut, when she did attempt to end this romantic relationship in XXXX of 2011, XXXX became obsessive and would not allow her to leave him. In fact, he became very abusive and threatened to inform XXXX of the claimant's and her mother's whereabouts as well as threatening to kill the claimant himself. In addition,XXXX XXXXbecame physically abusive and on a number of occasions he detained the claimant against her will and sexually abused her for days at a time. The claimant did not go to the Peruvian police at any time during her relationship with XXXX to report these incidents or to seek protection. With the financial help of a doctor who was treating her for the bruises on her body and attempting to get her off the sleeping pills she was constantly taking, the claimant was able to travel to the USA on April 28, 2011, and, after being smuggled into Canada a month later, she filed a refugee claim on June 1, 2011. [6] The claimant fears returning to Peru, where she does not believe the authorities can protect her from either XXXX XXXX XXXXor XXXX XXXX. DETERMINATION [7] The panel finds that the claimant is neither Convention refugee nor a person in need of protection. The panel's reasons are as follows: ANALYSIS Identity [8] The panel determines that the claimant's supporting documentation, which includes her genuine Peruvian passport,2 issued on XXXX XXXX XXXX 2009, establishes her identity as a citizen of Peru. Gender-Related Claim [9] Since this claim involves gender related violence the Panel has considered the Chairperson's Gender Guideline on gender-related persecution.3 The Chairperson's Gender Guideline highlights that women refugee claimants may face special problems in demonstrating that their claims are credible and trustworthy. Factors that may affect their ability to provide evidence include difficulty in providing testimony on sensitive matters, cross-cultural misunderstandings as well as social, religious and economic differences. The Chairperson's Gender Guideline was used to help understand and apply the added sensitivities necessary to properly assess whether any credibility issues are the result of such difficulties or an attempt to fabricate evidence. [10] During the course of this hearing, the panel considered the sensitivity of the questions that the claimant was being asked to respond to and she was informed that the panel was not trying to embarrass her or make her feel uncomfortable with its questions. Although counsel submitted that the claimant was spontaneous, forthright and sincere with regard to her testimony and that a claimant's testimony is presumed to be true unless there are valid reasons to doubt its truthfulness4, the panel found that the claimant's own documentary evidence was not consistent with regard to various incidents that allegedly transpired in Peru. Determinative Issues [11] The panel determines that the claimant has not satisfied the burden of establishing a serious possibility of persecution for a Convention ground, or that she would personally be subjected, on a balance of probabilities, to a danger of torture, or a risk to life or a risk of cruel and unusual treatment or punishment upon return to her country of Peru. Therefore, the panel finds that the claimant is neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97(1) of the IRPA. [12] In arriving at this decision, the panel has considered whether the claimant has demonstrated any subjective fear of returning to Peru with regard to her failure to claim refugee protection/asylum in the USA on two separate occasions in the fall of 2009 and in the spring of 2011. As well, the panel has considered the issue of whether the claimant has provided credible and trustworthy oral and documentary evidence with regard to specific incidents of persecution that allegedly occurred in Peru. The panel has also considered whether or not there is adequate state protection in Peru, whether the principal claimant took reasonable steps to avail herself of that protection and whether she has provided clear and convincing evidence of the state's inability to protect her. ANALYSIS Identity [13] The panel determines that the claimant's supporting documentation, which included her genuine Peruvian passport,5 establishes her identity as a citizen of Peru. Claimant's Credibility and the Issue of Lack of Subjective Fear [14] A determinative issue in this claim that the panel must consider is whether the claimant has demonstrated that she has a subjective fear of persecution in Peru with regard to her failure to claim refugee protection or asylum in the USA on two separate occasions, which were the fall of 2009 and the spring of 2011. [15] In response to the panel's questions as to why she had not filed for asylum protection in the USA from September of 2009 until she returned to Peru in October of 2009 or a period of one month, the claimant initially indicated orally "No" that she didn't know that such a program existed in that country and that she wanted to join her mother in Canada. In later testimony, she contradicted this testimony by admitting and stating that it was her understanding that the USA does not give asylum to victims of domestic abuse. The claimant was given an opportunity to explain this discrepancy with regard to her knowledge of the USA asylum program and to explain who had given her this information. The claimant indicated that she had acquired this information from USA television that the USA does not give protection to people who are victims of domestic abuse or involved in similar circumstances. In addition, after a series of questions, she admitted that she was aware that the USA did give refugee protection with regard to political asylum cases. For these reasons, the panel draws an adverse credibility finding with regard to the claimant as a credible and trustworthy witness with regard to the contradictory testimony of her initial responses and alleged lack of knowledge that the USA had an asylum program. [16] The claimant admitted in oral testimony that she did not ask the relative she was staying with in Florida whether there was any way she could seek protection in the USA as well as admitting that, during both her stays in the USA in 2009 and 2011, she never asked any para-legal, lawyer, relatives, friends or attended at any USA immigration office to seek information on the possibility of seeking asylum protection. The panel believes that it is reasonable that a genuine Convention refugee would seek protection as soon as is practical or once out of reach of his or her alleged oppressors or persons allegedly persecuting him/her. Canada is not obliged to find in favour of a claimant, where that claimant has failed before coming to Canada, or while en route to Canada, to take advantage of the opportunity or opportunities to seek protection in other Convention signatory nations.6 [17] The panel finds that the female claimant is not the unsophisticated traveller that she has made herself out to be. Although her CVV application was denied in 2009 because the Canadian immigration authorities did not believe she was a bona fide visitor and that she would not leave Canada, the claimant successfully applied for and received her Peruvian passport, she was able to use her USA visa to enter that country on two occasions, she was able to make her way to New York state and found a smuggler, who helped her illegally enter Canada through the Quebec border. The panel noted that the claimant was computer literate as she admitted in oral testimony with regard to her fifteen years of formal education and work experiences and that she was aware of the Internet. Although her mother may not have been able to advise her with regard to the Canadian refugee process, the claimant could have researched both the USA and Canadian procedures to apply for protection by simply using a computer at any Internet café in Lima. The panel determines that the claimant's lack of action to seek asylum protection during the two separate occasions that she resided in the USA are not reasonable since she was aware that the USA had an asylum program and, in the panel's opinion, she did not make reasonable efforts to acquire the relevant information that would pertain to her particular circumstances with regard to seeking protection in that country despite residing in the USA for more that a month on each occasion and despite the fact that she speaks English well as noted in the Psychological Assessment7 by Dr. XXXX XXXX XXXX As well, the claimant's lack of action, especially in 2011, is not reasonable or credible to the panel since the claimant has alleged that she fears two separate and unrelated persecutors, XXXX XXXX XXXX and XXXX XXXX. Although the claimant wanted to join her mother in Canada by using a smuggler to enter Canada to file for refugee protection, the panel notes there was no guarantee that she would even be successful in entering Canada illegally or that the claimant's refugee application in Canada would be accepted. In the context of the evidence adduced and considering her failure to claim asylum or refugee protection in the USA during two separate occasions in 2009 and 2011, the panel determines, on a balance of probabilities, that the claimant lacks the subjective fear required to substantiate a refugee claim. [18] The Federal Court has upheld the Immigration and Refugee Board (IRB) when denying a claim when it makes a finding of a lack of subjective fear based on failure of the claimant to make a refugee claim in a country, which is a signatory to the Convention.8 In the Bobic case,9 the Federal Court stated that an applicant's reasons for not claiming refugee status in a foreign country must be valid in order to avoid an adverse inference. The panel notes, in the case at bar, the claimant was actually aware there was an asylum program in the USA and she did speak English well, as noted above, but she simply did not pursue this opportunity for protection even though she had the skills, abilities and means, to investigate whether she qualified to seek asylum in that country. [19] In the context of the panel's reasons and the relevant case law, which the panel has outlined above, the panel determines that the claimant's lack of filing for asylum or refugee protection in the USA demonstrates a lack of subjective fear of persecution in Peru. In addition, as the Federal Court stated in the Garzon decision, "A finding that the applicant lacked subjective fear due to his failure to apply for asylum in the United States is sufficient, alone, for the Board to reasonably deny the refugee claim."10 The panel also finds that the claimant has not provided the panel with reasonable explanations for her failure to claim asylum or refugee protection in the USA and that she was simply 'country' or 'asylum' shopping by preferring the Canada's immigration program over those of the USA. Credibility [20] Credibility is an issue in all claims before the Immigration and Refugee Board. In order to determine whether the claim is well founded, the panel must find, on a balance of probabilities, that the evidence is credible and trustworthy. A claimant's testimony is presumed to be true unless there are valid reasons to doubt its truthfulness.11 The existence of contradictions, discrepancies, and implausibilities in the evidence of a claimant is a well-accepted basis for a finding of a lack of credibility. This also applies to omissions in the claimant's previous statements, whether made to Canadian immigration officials at the time of arrival in Canada, in previous examinations under oath or at the hearing of the claim, or in the claimant's Personal Information Forms (PIF). Credibility of the Claimant's Oral and Documentary Evidence [21] A determinative issue that the panel must consider is whether the female claimant has been a credible and trustworthy witness with regard to her oral testimony, her PIF narrative12 and her supporting documentary evidence. The panel determines that the female claimant was not a credible and trustworthy witness based on the negative credibility findings with regard to contradictions and discrepancies in her PIF narrative13, oral testimony and supporting documentary evidence. [22] In oral testimony, the female claimant described the alleged events of XXXX 2009, during which XXXX allegedly assaulted her and tried to force her to come with her. With her girlfriend's assistance, the police did attend this incident and, according to her testimony, upon seeing the police approaching, XXXX simply ran away. At the request of the police, the claimant did make a denunciation after she and her girlfriend were driven to the police station by these authorities and the claimant added that the attending police officers indicated to her that they had captured XXXX. In later testimony, when asked about the status of the case with regard to this incident, the claimant indicated that she was informed by the Peruvian police that she would be contacted with updates or any news, if they caught XXXX XXXX The panel noted at the hearing that this latter statement was not consistent with her own Peruvian police denunciation14 dated XXXX XXXX, 2009, which indicated that XXXX was in custody immediately following this incident, which the panel also notes is not consistent with her earlier testimony that XXXX had already been apprehended by the police, and she was given the opportunity to explain this discrepancy. The claimant explained that she did not see XXXX at the police station, which the panel believes is reasonable since it would not make sense to put plaintiffs and suspects in the same room together for both emotional and procedural legal reasons. In fact, the claimant disputed whether the police had in fact captured XXXXafter this incident. The claimant was given opportunity to explain what had happened to this legal or court matter and the claimant repeated that she was informed she would be contacted with further information and instructions, if XXXX was caught. [23] The panel rejects this explanation since it does not make sense. It begs the question of why the claimant was informed she would be contacted by the police when XXXX was captured, if the latter suspect was already in custody? In later testimony, the claimant was given several opportunities to explain if she had followed up with the Peruvian police with regard to the status of this incident and she responded and basically repeated that the authority she had spoken to had led her to believe they had not caught XXXX. The panel notes that the denunciation15 clearly states, "1. On this day, being 3:30pm approximately, and individual from the PNP (National Police department of Peru) DIVINCRI CL, when he was on patrol in the jurisdiction to thwart criminality in the areas of a high criminal index, he realized that an individual was physically attacking a female, reason for which police intervention followed immediately, upon which Mr. XXXX XXXX XXXX was identified and driven to this Police Station for the investigations on this case." The claimant's own supporting documentation clearly contradicts her statements that XXXX had not yet been apprehended by the Peruvian police. The panel notes that the additional and pertinent information in the denunciation is consistent with the claimant's description and identity of her attacker, witnesses, dates, police intervention and her examination by the Legal Medicine Institute to confirm her injuries. [24] The panel determines that it is not reasonable or credible that these authorities would falsify a police report that they had captured and had XXXX in custody shortly after this incident occurred, if it were not true, since there could be serious administrative and criminal issues or penalties for the police/authors of this police report. For these reasons, the panel determines that the claimant has deliberately attempted to mislead the panel with regard to her allegations that the Peruvian police were not able to provide her with adequate state protection. As stated in Danailov, with respect to the assessment of a physician's evidence and the question of the assessment of credibility, "that opinion evidence is only as valid as the truth of the facts on which it is based".16 Given that the consulting psychiatrist stated that she made her assessment based in part on the allegations contained in the claimant's narrative, and the Panel has found that a central allegation is not trustworthy, the panel assigns the Psychiatric Assessment Report little weight. As stated in Rokni, a psychiatric report submitted as evidence "cannot possibly serve as a cure-all for any and all deficiencies in a claimant's testimony".17 The panel further determines that the claimant's own supporting documentary evidence, her Peruvian denunciation dated May 7, 2011, contradicts her allegations that the authorities in Peru cannot offer effective state protection and the panel also finds that the claimant has not been a credible or trustworthy witness with regard to this central aspect of her narrative, which was her alleged catalyst to leave Peru in 2011. The Issue of State Protection [25] The determinative issue in this claim is state protection. The panel determines that both the claimant and her mother were given adequate state protection on at least three occasions while they resided in Peru. In addition, the panel finds that the claimant did not make any reasonable efforts at all to seek the protection of the state that may have been available to her with regard to the alleged attacks by XXXX XXXX, her ex-boyfriend, while she was in a relationship with him in Peru. [26] The panel, in assessing the issue of state protection, has reviewed and referred to the jurisprudence from the Supreme Court of Canada and the Federal Court. The Courts have established a number of principles relating to state protection and the panel has made best efforts to adhere to those principles to the case at bar. There is a presumption that, except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. The presumption that a state is capable of protecting its citizens emphasizes the principle that international protection is required only when a refugee claimant has no other recourse available. Having reviewed the country conditions documents, the panel determines that Peru is in effective control of its territory and has a functioning security force to uphold its laws and the constitution of the country. Documentary evidence indicates that Peru is a multi-party republic with a population estimated at 30 million people. In 2006, Alan Garcia of the Popular Revolutionary Party Alliance won the presidency in elections that were generally free and fair. Civilian authorities generally maintained effective control of the security forces.18 [27] The PNP, with an officer and enlisted force of approximately 100,000, was responsible for all areas of law enforcement and internal security and functioned under the authority of the Ministry of the Interior. The PNP's organizational structure comprises directorates that specialize in specific areas (such as kidnapping, counternarcotics, and counterterrorism) and local police units. Each department, province, city, and town has a PNP presence. The armed forces, with approximately 115,000 personnel, are responsible for external security under the authority of the Ministry of Defense, but they also have limited domestic security responsibilities. [28] Observers noted that the PNP was undermanned and suffered from a lack of training and professionalism. Corruption and impunity remained problems. The Ministries of Interior and Defense employ internal mechanisms to investigate security force abuses. The Public Ministry conducts investigations, although access to evidence held by the Ministry of Defense is not always forthcoming. The Ombudsman is another mechanism, although it can only refer a case to the Public Ministry. There were also several reports of military corruption, impunity, and resistance to provide information on its personnel under investigation for human rights abuses committed during the country's internal armed conflict. Security forces sought to strengthen accountability with human rights training and revision of disciplinary procedures but were doing so very slowly. The PNP is charged with witness protection but lacked resources to provide training for officers, conceal identities, or offer logistical support to witnesses. Officers assigned to witness protection cases often brought witnesses into their homes to live. [29] To rebut the presumption of state protection, a claimant must provide "clear and convincing" confirmation of the state's inability to protect its citizens.19 Claimants who allege that state protection is inadequate must persuade a panel that the evidence establishes that the state protection is in fact, inadequate. The evidence that state protection is inadequate must not only be reliable and probative, it must also satisfy the panel, on a balance of probabilities, that for this specific claimant, state protection is inadequate.20 Where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that the state's efforts are not always successful will not rebut the presumption of state protection.21 This appears to be the case in this matter. If the claimant's evidence has any "ring of truth", while she and her mother resided in Peru, the Peruvian police did respond to their requests for help on three separate occasions, however, the claimant did little to assist the police with regard to her and her mother's persecutor, XXXX XXXX XXXX. [30] With regard to the incident on XXXX XXXX, 2008, during which her mother came to her aid to prevent XXXX from sexually assaulting the claimant, the panel noted that the claimant nor her neighbour called the police to assist them at their home. As well, the panel found the claimant to be vague and evasive as to what information she had given to the police with regard to this incident. Notwithstanding the fact that the police did interview the claimant's mother and a denunciation was filed by her against XXXX, the claimant eventually admitted that she had deliberately withheld information from the Peruvian police with regard to the alleged attempted sexual assault by XXXX XXXX Although she justified her lack of assistance by indicating that she was scared of XXXX, as stated by the Federal Court in Karaseva,22 "The police must be given adequate tools in order to investigate a crime and information as to the criminals is a key tool." The panel determines, if the claimant's narrative contains any truth, the principal claimant simply did not provide the police in Lima with sufficient evidence or, in actual fact, in a timely fashion with regard to this incident, which may have assisted the authorities with regard to the totality and seriousness of the crimes that XXXX may have committed, notwithstanding the fact that she claims that she and her mother are very close. [31] In a similar vein of thought, the panel notes that the Peruvian police did respond when contacted by the claimant's mother and sister when they were allegedly being threatened by XXXXin XXXX of 2009, where they were residing and the claimant admitted that she did not speak to the police after they arrived at her aunt's home. On this occasion, the police did take another denunciation, they indicated that they were looking for XXXX and they were aware of his past incidents of assaulting the claimant's mother. Although the Peruvian police, may not have captured XXXX yet, the panel notes even in Canada, suspects are not always immediately apprehended and brought to justice. In the opinion of the panel, the police statements on this occasion as outlined by the claimant indicate that the investigation of XXXXs previous criminal acts were part of an active investigation. [32] Finally, the panel notes that it has made previous determination that XXXX was arrested and detained by the Lima police on XXXX XXXX, 2009, after he assaulted the claimant in Lima, Peru. Although the claimant has disputed specific aspects of her own denunciation, the panel determines that the police did provide the claimant with effective and adequate state protection. In the panel's opinion, the police responded in a timely fashion when requested to do so by the claimant's girlfriend, the claimant and her girlfriend were driven to the police station in a police vehicle, her denunciation was filed, which indicates that XXXX was placed into police custody that same day, and she was sent to be examined by a doctor associated with the police. The panel sees no fault on the part of the Peruvian police with regard to their handling of this matter on this day. The panel is concerned that the claimant left Peru approximately three months after this assault, which would not allow her to assist with information or be a witness in any criminal proceeding against XXXX XXXX [33] Finally, in assessing all of these incidents, the panel determines that the claimant was provided with adequate state protection but that, on at least two of these occasions, she did not assist or withheld information from the police. [34] A claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state.23 The claimant basically admitted in oral testimony that, while she was in a relationship with XXXX XXXX, her ex-boyfriend, she was verbally, physically and sexually assaulted by him on numerous occasions. The claimant has suggested that she did not go to the police because they had not provided her or her mother with assistance on previous occasions. As noted above, the panel has disputed this allegation and determined that the claimant and her mother were provided with adequate state protection on three occasions, which resulted in the arrest and detention of XXXX XXXX XXXX. [35] The panel notes the premise in Ramirez24 that doubting the effectiveness of the protection offered by the state when one has not really tested it does not rebut the existence of a presumption of state protection25, which is directly on point with the case at bar, since the claimant admitted in oral testimony and in her PIF narrative that she never reported XXXX XXXX, her ex-boyfriend, to the Peruvian police on any occasion. Refugee protection is meant to be a form of surrogate protection to be invoked only in those situations where the refugee claimant has unsuccessfully sought the protection of their home state. The onus is on the claimant to approach the state for protection in situations where state protection might be reasonably forthcoming.26 To qualify for refugee status, a claimant must satisfy the panel that he or she sought, but was unable to obtain, protection from their home state, or alternatively, that their home state, on an objective basis, could not be expected to provide protection.27 In the absence of a compelling explanation, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim, at least where the state is a functioning democracy with a willingness and the apparatus necessary to provide a measure of protection to its citizens.28 [36] The claimant has indicated in her oral testimony and documentary evidence that she was held against her will, sexually assaulted for days at a time and verbally and physically abused by XXXX XXXX, her ex-boyfriend, while she was in a relationship with him in Peru. Notwithstanding all of these allegations, the claimant has never reported these alleged incidents to the Peruvian National Police (PNP) nor has she ever sought protection from any authority in Peru. A claimant's burden of proof is directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all courses of action open to them.29 In a functioning democracy, a claimant will have a heavy burden when attempting to show that he/she should not have been required to exhaust all of the recourses available to them domestically before claiming refugee status.30 [37] Counsel submitted that the state of Peru's efforts to provide state protection to women involved in domestic violence has not been effective and she had referred to a number of articles in her documentary evidence to support this submission31. The panel notes that the objective evidence32 indicates that Peruvian law prohibits domestic violence against women, and penalties range from one month to six years in prison. In fact, the law requires the police to investigate incidents of domestic violence within five days of receiving a complaint and authorities are to extend protection to women and children who are victims. Notwithstanding these laws, violence against women remains a problem in Peru. The latter documentary evidence33 also indicates, MIMDES operated the Women's Emergency Program, which included 114 centers that combined police, prosecutors, counselors, and public welfare agents to help victims of domestic abuse. It also sought to address the legal, psychological, social, and medical problems facing victims of domestic violence. The level of public services fluctuated daily; for example, 920 persons received attention on July 22, and 1,095 persons received attention on December 20 (most individuals were follow-up cases). A 2009 ombudsman report on the centers highlighted the government decentralization process and challenges the centers faced, such as a lack of qualified professionals. MIMDES also operated a toll-free hotline that answered a monthly average of 1,543 calls through November. MIMDES continued efforts to sensitize government employees and the citizenry to domestic violence, but the ombudsman asserted that police officers reacted indifferently to charges of domestic violence, despite legal requirements to investigate such complaints. [38] The Panel is not persuaded that Peru is a state in complete breakdown. As well, the panel notes that the claimant indicated that she was not aware of any programs in Peru that help women involved in domestic abuse. In the context of counsel's submissions with regard to state protection and the case of Franklin34, the panel determines that the latter case is not on point since, as the panel has previously determined, the claimant's past experiences with the police in Peru, did culminate in the arrest and detention of XXXXin XXXX of 2009. As well, in the case at bar, the panel determines that the claimant did not take any reasonable steps in the circumstances with regard to the varied abuse of her ex-boyfriend, XXXX, to seek protection in Peru, which the panel has taken into account with regard to the context of the country of origin, the programs that are available to victims of domestic abuse as outlined in the documentary evidence noted above, the lack of steps taken by this specific claimant as well as her lack of any interactions with the authorities. As well, the panel determines, in considering the case law cited of Camacho35, if she has never made any attempt at all to seek protection from any authority in Peru, the claimant or her counsel cannot claim that she made reasonable efforts to protect herself from her ex-boyfriend. [39] The panel accepts that the documentary evidence36 indicates that Peru has had some difficulties in the past with addressing the criminality and corruption that exist within the security forces in that country. As well, the panel notes that there are some inconsistencies among several sources within the documentary evidence since the Overseas Security Advisory Council (OSAC) indicates that Peru has one of the highest reported crime rates in Latin America, but Freedom House, a non-government organization (NGO), contends, by regional standards, the incidence of crime is low in Peru and, in fact, that it remains far below the level found in many Latin American countries. The objective evidence regarding current country conditions suggests that, although not perfect, there is an adequate state protection in Peru for victims of crime, that Peru is making serious efforts to address the problem of criminality and domestic violence37. [40] The presumption of state protection is nothing more than a rebuttable presumption. It is a claimant's burden to rebut the presumption and evidence of the existence of bribery and corruption is only one part of the analysis of whether state protection exists. Factors such as democracy, judicial institutions and effective agencies to address bribery and corruption are among many other factors to be assessed.38 [41] Therefore, having considered the totality of the evidence, the panel determines that the claimant, in the circumstances of this case, has failed to rebut the presumption of state protection with clear and convincing evidence and that the claimant was given state protection on three occasions, which resulted in the detention of XXXX XXXX XXXX. The panel has also determined that the claimant did not take any reasonable steps or any steps at all in the circumstances related to her abusive ex-boyfriend, XXXX XXXX, to avail herself of that protection in Peru before she made a claim for refugee protection in Canada, which the panel has previously determined is fatal to her claim. Therefore, the panel is not persuaded that the state of Peru would not be reasonably forthcoming with state protection, should the claimant seek it. [42] On the basis of the totality of the evidence and the negative findings noted above, the panel determines that the claimant has not satisfied her burden of establishing a serious possibility that she would be persecuted or that she would be personally subjected to a risk to her life or a risk of cruel and unusual treatment or punishment or a risk of torture by any authority in Peru. [43] For all of the cumulative negative determinations outlined above, the panel determines that that the claimant is not a Convention refugee or a person in need of protection, whether under section 96 or section 97 of the IRPA. CONCLUSION [44] The panel concludes that the claimant is neither a Convention refugee nor a person in need of protection. The Refugee Protection Division, therefore, rejects her claim. (signed) Paul G.C. Robinson Paul G.C. Robinson August 3, 2012 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibit R-2, Information received from CIC. 3 Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993; Update: November 1996, as continued in effect by the Chairperson on June 28, 2002 pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act. 4 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 5 Exhibit R-2, Information received from CIC. 6 Torres, Edison Colorado v. M.C.I. (FC., no. IMM-7630-05), Harrington, J., July 27, 2006, 2006 FC 927. 7 Exhibit C-3, Additional Disclosure Received February 8, 2012. 8 Ortiz Garzon v. Canada (Citizenship and Immigration) 2011 FC 299 dated March 11,2011; Cortes v. M.C.I. 2008 FC 254 date February 27, 2008. 9 Bobic, Petru v. M.C.I. 2004 FC 1488 DATE November 5, 2004. 10Goltsberg, Yuriy v. M.C.I. 2010 FC 886 dated September 9, 2010. 11 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 12 Exhibit C-1. 13 Exhibit C-1. 14 Exhibit C-2, Disclosure Rec'd 27/Jan/12, pages 1 to 3. 15 Exhibit C-2, Disclosure Rec'd 27/Jan/12, pages 1 to 3. 16 Danailov (Danailoff), Vasco (Vassil) Valdimirov v. M.E.I. (F.C.T.D., no. T-273-93), Reed, J., October 6, 1993. 17 Rokni, Mohamed Mehdi v. M.C.I. (F.C.T.D., no. IMM-6068-93), Muldoon, J., January 27, 1995. 18 Exhibit R -1, National Documentation Package, 13 April 2011, item 2.1, United States (US). 8 April 2011. Department of State. "Peru." Country Reports on Human Rights Practices for 2010. 19 Canada (Attorney General) v. Ward, [1993] S.C.R. 689, at 725, 709 and 724. 20 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.). 21 M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Hugessen, Marceau, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), at 133. 22 Karaseva, Tatiana v. M.C.I. (F.C.T.D., no. IMM-4683-96). 23 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 24 Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.). 25 Rio Ramirez, Leticia Lizet Del v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008; 2008 FC 1214. 26 Canada (Attorney General) v. Ward, [1993] S.C.R. 689, at 725. 27 Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171. 28 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 29 M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.), at 536. 30 Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171, para. 46. 31 Exhibit C-2, Disclosure Rec'd 27/Jan/2012, item 6. 32 Exhibit R -1, National Documentation Package, 13 April 2011, item 2.1, United States (US). 8 April 2011. Department of State. "Peru." Country Reports on Human Rights Practices for 2010. 33 Ibid. 34 Exhibit C-6, Counsel's Case-law, Franklin v. Canada (Minister of Citizenship and Immigration, 2005 FC 1249. 35 Supra, footnote 28. 36 Exhibit R-1, item 7.3, RIR PER103680.E. 10 March 2011. Crime levels, police effectiveness and state response to crime; including witness protection (2008-2011). 37 Exhibit R-1, item 5.1, PER103441.FE. 19 May 2010. Domestic violence, state protection and support services available (March 2007-March 2010). 38 Escobar Martinez, Juan Manuel v. M.C. I. (F.C., no. IMM-3708-09), Phelan, May 7, 2010; 2010 FC 502. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TB1-08512 RPD File No. :TB1-08512