Category: Colombia

Categories
All Countries Colombia

2021 RLLR 91

Citation: 2021 RLLR 91
Tribunal: Refugee Protection Division
Date of Decision: November 29, 2021
Panel: Dewa Baqi
Counsel for the Claimant(s): Patricia Ritter
Country: Colombia
RPD Number: TC0-06790
Associated RPD Number(s): N/A
ATIP Number: A-2022-01778
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division for XXXX XXXX XXXX XXXX. You are claiming to be a citizen of Colombia and are claiming refugee protection pursuant to s. 96 and 97 of the Immigration and Refugee Protection Act. I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. The written decision will come to you shortly and maybe amended to include specific citations to exhibits in case law as needed.

[2]       The Panel has determined that the claimant is a Convention refugee or a person in need of protection pursuant to s. 96 and 97(1) of IRPA. You allege that you are a citizen of Colombia and that you fear harm in Colombia from the Revolutionary Armed Forces of Colombia, also known as FARC, dissidents who are targeting you because of your work with vulnerable communities who are victims of war. You allege that there is no state protection for you or an internal flight alternative.

[3]       Your personal identity as a citizen of Colombia has been established by our testimony and the supporting documents filed in Exhibit 1, namely your genuine passport from Colombia. I find, based on a balance of probabilities, that identity and country of reference have been established.

[4]       I find that there is a link between what you fear and one of the five grounds, namely membership in a particular social group as a social activist. I have therefore assessed the claim under s. 96.

[5]       I find you to be a credible witness. Your testimony was clear and consistent with the written narrative and evidence on file. You established that in 2018 you graduated from the XXXX XXXX XXXX with a diploma in XXXX. As a requirement for your graduation, you started a project in 2016 that involved interviewing migrants who moved to a city due to the increasing violence caused by the FARC. You established that after graduation you continued to work with the vulnerable communities of Caloto and Santander de Quilichao, particularly with victims of war.

[6]       You spoke passionately about your desire to give the people in these communities who are minorities a voice and how you have a personal connection to this cause because your family had also fled their community for the same reasons. You spoke spontaneously and in detailed and knowledgeable manner about the challenges faced by those displaced by FARC and what makes the specific communities you worked with vulnerable. You spoke with convincing clarity about the type of work you were doing that involved XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[7]       You established that the FARC considered you to be a social leader. You first received a call in 2016 warning you to be careful about what you wrote about in your school project. You continued to receive calls in 2017 warning you to stop and telling you they were aware of your activity. As a result, you stopped your project for two months. In 2019, you received multiple calls from FARC telling you to stop your work in the communities of Caloto and Santander de Quilichao. They threatened you to stop visiting these areas or working with former combatants and to leave the area. They called you a meddler and declared you a military target, informing you that they would double their surveillance on you. As a result, you stopped working completely.

[8]       I know that your claim is supported by the following documents: a letter from XXXX XXXX XXXX XXXX (ph) certifying that she was a migrant who was interviewed by you as part of your graduation thesis from January 2016 to September 2017, letters from participants in your workshops that took place in Guapi and Cauca, letters from your family members, a letter from the organization XXXX XXXX XXXX that you had volunteered with, and a copy of your reports to the prosecutor’s office and the Attorney General’s office.

[9]       Accordingly, on the whole, in terms of your general credibility, I found you to be a credible witness and I accept — I therefore accept what you have alleged in your oral testimony and Basis of Claim form based on a balance of probabilities. Your subjective fear is established by your credible and corroborated testimony.

[10]     I also find that your claim is objectively well-founded. Item 7.37 in the NDP reports civilians in various parts of the country suffered serious abuses at the hands of the FARCs, FARC dissidents, and paramilitary successor groups and the human rights defenders, journalists, indigenous, and Afro-Colombian leaders and other community activists face pervasive death threats and violence.

[11]     Item 1.8 in the most recent NDP for Colombia States following. According to the Human Rights Watch, since the demobilization of FARC, community activists face death threats and violence, mostly from guerilla groups and successor groups, and perpetrators are rarely held accountable.

[12]     The Office of the Ombudsman identify leaders of victims and displaced persons and human activists are some of the most vulnerable groups due to their activities in the context of the armed conflict. Targeting these profiles are motivated by the drive to eliminate threats to their interests by social leaders who social and community involvement concerns issues such as land restitution and the return of displaced land to their people — displaced people to their lands.

[13]     I find that the objective evidence is consistent with your subjective fear. Therefore, based on the totality of evidence, I find, on a balance of probabilities, your fear has an objective basis and is well-founded.

State Protection

[14]     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 the protection would not be reasonably forthcoming.

[15]     You testified that you attempted to seek state protection and were told that you were not — that there were not enough resources to protect you and that they would send someone to your area if possible. They also told you to call in case of an emergency.

[16]     The country conditions reveal item 7.37 in the NDP indicates that the FARC commonly kills without warning. Accessing state protection is really hard for those targeted by criminal groups due to a very high threshold for eligibility and a certain amount of public exposure is required for known leaders. Many community leaders do not receive threats or do not report them to the prosecutor, which is a requirement for them to receive protection.

[17]     Item 2.13 further states that demobilization of FARC was not accompanied by the mobilization and integrated presence of the state in the areas previously under its control. This inaction of the state allowed illegal armed groups and criminal groups to reorganize power around illicit economies. Defenders of human rights have become the targets of attacks, and they lack effective state protection. The delays, lack of political determination, and failure to allocate sufficient funds for the implementation of the peace agreement which prioritizes, among other things, the dismantling of these groups and the integrated presence of the state, is undoubtedly one of the key structural causes that keeps human rights defenders at risk.

[18]     These reports establish groups regularly target social and community leaders who they see as threats to their control over an area or population or threats to their interest. The report also discloses that there are swift and severe consequences for those who go to the police. The reports also establish an inability of the Colombian authorities to provide protection to those facing threats from gangs and guerilla groups.

[19]     I find that your experiences are consistent with the country documentation. Based on your personal circumstances and the country documentation, I find that you have rebutted the presumption of state protection and that it is not forthcoming to you.

Internal Flight Alternative

[20]     I have a considered whether a viable internal flight alternative exists for you. With respect to the first prong, I find that there is a serious risk of persecution or risk to life or risk of cruel and unusual treatment in Colombia. You testified that you were declared a military target and that the FARC dissidents were able to locate you and informed you that they had knowledge of your whereabouts, activities, even the way you were dressed.

[21]     Items 7.1 of the NDP describes being a military objective means that one’s life and physical integrity and freedom is endangered. The evidence also establishes they or any groups that are targeting you have the motivation to find you. You have filed police complaints and protection requests which is something all groups in Colombia take very seriously and try to respond to with severe consequences.

[22]     On the second prong, I find that you — it would not be reasonable in all the circumstances for you to reside in the IFA, because you testified that if you returned to Colombia you would continue to advocate for the rights of minorities and look for work as an anthropologist because it was what you went to school for. This would make it easy for you to be targeted and found by the members of the FARC dissidents.

[23]     The reports also disclosed that armed groups have reach throughout Colombia and can target individuals even in areas where they do not exert control. In fact, the peace process between the government and FARC has created a power vacuum in areas previously controlled by the FARC and led to a growth in new and less predictable armed groups operating. Accordingly, I find that you are a serious — that you face a serious possibility of persecution throughout the country. I therefore find that there is no viable internal flight alternative available to you.

[24]     Based on the totality of the evidence and my analysis above, I find the claimant to be a Convention refugee, and I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2021 RLLR 40

Citation: 2021 RLLR 40
Tribunal: Refugee Protection Division
Date of Decision: November 3, 2021
Panel: Catherine Solyom
Counsel for the Claimant(s): Robin Dejardin
Country: Colombia
RPD Number: MB9-19195
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000055-000063

REASONS FOR DECISION

INTRODUCTION

Introduction

[1]       These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX, who declares himself to be a citizen of Colombia, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the Act.

Allegations

[3]       The claimant, a 26-year-old citizen of Colombia, alleges that he is queer, and wants to undertake gender reassignment surgery. Because of his sexual orientation and gender identity, as well as his advocacy for the LGBTI community, he was targeted by the Gulf Clan, the country’s largest criminal organization, as well as by unknown members of the community.

[4]       In 2017, he was sexually assaulted by a group of men because he was public about his sexual orientation on Facebook.

[5]       Then in 2019, while working for the LGBTI Social Alliance of Antioquia, in Medellin, he was targeted by the Gulf Clan because he counseled transexuals and other members of the community not to give in to threats of extortion by the Gulf Clan and to report these threats to the police.

[6]       On XXXX XXXX XXXX 2019, after a tour of the city centre to commemorate the 50 years of the XXXX XXXX XXXX – the riots outside a gay bar in New York City that marked the beginning of the gay rights movement in 1969 – an armed man accosted him on his way home and threatened to kill him if he did not stop his work with the LGBTI Social Alliance. The aggressor also told him if he wished to continue working as a prostitute in the neighbourhood – which he did occasionally – he would have to pay a portion of this earnings to the Gulf Clan.

[7]       On XXXX XXXX XXXX 2019, after representing the LGBTI group on a float in the gay pride parade in Medellin, the claimant was threatened again by an armed man who said he knew where he worked and where he spent his free time, as well as where he lived, with his mother and his dog. The claimant also received threatening messages on Facebook and Grindr, a dating app.

[8]       Two weeks later, on XXXX XXXX XXXX 2019, the claimant flew to the United States. The next day he crossed the border into Canada and claimed asylum.

Decision

[9]       The Tribunal finds that the claimant is a refugee, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should he return to Colombia, on account of his membership in a particular social group, specifically gay and transgender people in Colombia. The reasons are as follows.

Identity

[10]     The Tribunal finds that the identity of the claimant as a national of Colombia is established by the documents provided, notably his passport.

Credibility

[11]     Based on the documents in the file, the Tribunal has noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above.

[12]     Medical reports dated XXXX XXXX and XXXX XXXX 2017, corroborate the allegation that the claimant was drugged and assaulted on XXXX XXXX XXXX 2017 (Exhibit C-1 and C- 3).

[13]     Photographs of the claimant at training and public events corroborate the allegations that he volunteered with the LGBTI Social Alliance of Antioquia and took part in events to mark the 50th anniversary of the XXXX XXXX XXXX riots. Other photos of the claimant at a Drag Queen contest and at the Gay pride parade in 2019 also corroborate the allegation that he is queer himself and was an advocate for the community (Exhibits C-10 to C-13).

[14]     Facebook posts denouncing violence against the LGBTI community after the murder of a transgender woman corroborate the allegation that the claimant spoke out publicly on behalf of the LGBTI community (Exhibit C-6). Threats receives online after those posts, as well as threats on a dating app, corroborate the allegation that the claimant was targeted because of his public advocacy for the LGBTI community (Exhibit C-15).

[15]     This is also confirmed by the submission of a survey given to participants at the 2019 pride parade in Medellin, by the social alliance (Exhibit C-14). This exhibit includes a photograph of the claimant marching at the front of the parade, which appeared in a Colombian newspaper.

[16]     A police complaint dated XXXX XXXX XXXX 2019, corroborates the allegation that the claimant sought police protection following the threats he received after the gay pride parade on XXXX XXXX XXXX 2019, and threats he received online, as an advocate with the LGBTI Social Alliance. It also confirms that the local police response was that it was not in their jurisdiction to act on this complaint (Exhibit C-16).

[17]     A second complaint, filed with police XXXX XXXX XXXX 2019, also details the incidents in question, and the claimant’s fears and reasons to suspect that the Gulf Clan is behind the threats in person and on social media. The police response is to advise the claimant to hire a private investigator to find out exactly who made the threats (Exhibit C-16).

[18]     A letter of support by the Montreal LGBTQ+ Community Centre affirms that the claimant has been an active member of the centre since XXXX 2020, and took part in activities and discussions with the centre even before becoming a member (Exhibit C-18).

[19]     After reviewing the documents, The Tribunal has no reason to doubt their authenticity.

Objective basis

[20]     Given that there are no serious credibility issues with respect to allegations of the claimant, and in light of the documentary evidence set out below, the Tribunal finds that the claimant has established a prospective risk of being assaulted or killed by the Gulf Clan, or other armed groups because of his sexual orientation, and because of his work as a social leader and advocate for the LGBTI community.

[21]     This risk is corroborated by the following documents in the National Documentation Package for Colombia, August 31, 2021 version, at tabs 2.1, 2.17, 2.18, 2.19, 6.3, 6.5, 7.13, 7.21, and 7.28.

[22]     Colombia decriminalized same-sex sexual relations in 1981 and has laws and recent court decisions prohibiting discrimination based on sexual orientation or gender identity.

[23]     However, sources have indicated that a “significant proportion” of the Colombian population still has prejudices against LGBTI people and there were reports of sexual assaults against members of the community.

[24]     According to a report by Colombia Diversa in 2018, 110 persons belonging to sexual and gender minorities were murdered in 2017, while in 2018, 109 individuals were killed. At least 33 percent of these murders and around 34 percent of threats were motivated by the victim’s sexual orientation or gender identity.

[25]     Antioquia, where the claimant lived, was the department with the highest number of incidents of violence against sexual and gender minorities in 2018, and the highest number of assassinations that year (23 victims).

[26]     Armed groups, like the Gulf Clan, were behind many of the homicides and threats toward LGBTI persons. According to the Colombia Diversa report from May 2020, this kind of violence is used as a “war strategy” and to exercise social control in an area. Between 2014 and 2019, armed groups had issued 75 threats against people belonging to sexual and gender minorities.

[27]     The Gulf Clan, responsible for the threats made against the claimant, is said to be the largest and most powerful of the paramilitary groups in Colombia. It is also described as a major drug trafficking group and the largest criminal organization in Colombia.

[28]     At the same time, LGBTI people were also at risk of violence by the police. Between 2014 and 2019, there were 431 incidents of police violence against sexual and gender minorities, including 87 in 2018.

[29]     While a majority of the members of the community said they did not experience discrimination in their workplaces, this was not true for transgender persons, 40 per cent of which were unemployed because of discrimination in hiring practices.

[30]     The claimant would not have been affected by this while he was in Colombia. However, given his stated desire to transition to a different gender, he would face this risk of discrimination as well if he were to return to Colombia and express his gender identity.

[31]     There is also a wealth of objective evidence pertaining to the risks of persecution in Colombia facing social leaders and human rights defenders.

[32]     According to the U.S. State Department’s Human Rights Report for 2020, several illegal armed groups perpetrated human rights abuses and violent crimes, including murders, kidnapping, torture and threats against journalists, women, human rights defenders and social leaders.

[33]     In the first six months of 2020 alone, there were 13 kidnappings of human rights and social leaders.

[34]     Citing statistics from the Office of the United Nations High Commissioner for Human Rights, the same report stated that between January 2016 and August 2020 more than 400 human rights defenders were killed.

[35]     According to the Inter-American Commission on Human Rights, since 2017, when Colombia recorded its lowest overall homicide rate in the last 30 years, there has been a significant and alarming increase in the number of murders of human rights defenders and social leaders in the country- including a 13% increase in the number of human rights defenders killed from 2018 to 2019.

[36]     LGBTI human rights defenders, like the claimant, are in a particularly dangerous situation, the Commission noted, as they are targeted both because of their efforts to defend people who are victims of discrimination and because of their own sexual orientation or gender identity.

[37]     With respect to who is responsible for the killings, according to the Office of the Attorney General of Colombia, in a 2018 report, the main perpetrators are, by order of responsibility, individuals, local criminal organizations, the Gulf Clan, and Revolutionary Armed Forces of Colombia (FARC) dissidents and the National Liberation Army.

[38]     Civil society organizations point out the difficulty of identifying those allegedly responsible for these crimes. However, many concur in identifying illegal armed groups, first and foremost the Gulf Clan, as the main source of violence.

[39]     In this context, and having examined this claim under section 96 of the IRPA, the Tribunal concludes that the risk the claimant faces constitutes persecution based on at least one of the grounds prescribed in the Refugee Convention, specifically his membership in a particular social group – members of the LGBTI community in Colombia – and his political opinion, as a human rights defender working with that community.

State Protection

[40]     The Tribunal finds that there is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection, either as a member of the LGBTI community, or as a social leader and human rights defender.

[41]     According to several sources, LGBT persons’ rights were included in the 2016 peace agreement with the Revolutionary Armed Forces of Colombia (FARC) and they are recognized as a specific category of victims of the armed conflict in the agreement.

[42]     Furthermore, according to information provided by the State, in 2020, 3,686 human rights defenders and social leaders did receive protection through the National Protection Unit (UNP), equivalent to roughly half of the total number of people protected by the UNP.

[43]     On the other hand, civil society organizations note that there has hardly been any development of protection measures for LGBTI members by the State since 2016, despite the promises of the accord. And they characterized the protection measures for human rights defenders as “soft”, even in areas with serious security situations, and therefore ineffectual.

[44]     Furthermore, as mentioned above, the police themselves are the instigators of violence against the LGBTI community – for example they were responsible for 87 cases of violence against members of the LGBTI community in 2018. As such there is a reluctance by members of that community to seek police protection for fear that they may be re-victimized.

[45]     The claimant states and has provided documentary evidence that he sought police protection from the Gulf Clan on two occasions. The first time, in XXXX 2019, he was told by police that it was not in their jurisdiction to investigate the threats he received at the Gay Pride march. The second time, in XXXX 2019, he was told that a police investigation could only begin once the claimant identified a specific person responsible for the threats within the Gulf Clan. The police suggested he hire a private investigator.

[46]     Given the objective evidence and the personal experience of the claimant, the Tribunal finds he can not rely on police protection from the threats he received or could face, should he return to Colombia.

Internal Flight Alternative

[47]     The Tribunal has also examined whether a viable internal flight alternative exists for the claimant.

[48]     According to several sources, the Gulf Clan, who the claimant believes was responsible for the threats levelled against him, has control over the entire territory of Colombia and most of its ports. In 2017, the Colombian government estimated that it had some 2,000 members, who were particularly concentrated in Colombia’s northern region, especially in the Pacific departments of Antioquia, Choco and Cordoba.

[49]     While the National Documentation Package for Colombia does not provide specific information on the Gulf Clan’s ability to track individuals to other parts of the country, it does reveal that the Gulf Clan, on top of being the largest and most widespread of the illegal armed groups, also has allies both within and outside of Colombia.

[50]     The documentary evidence also shows that members of the LGBTI community, human rights defenders and social leaders are particularly vulnerable to threats and illegal groups, not to mention violence and discrimination, in rural areas and smaller cities.

[51]     Based on the evidence on file, the Tribunal finds that the claimant faces a serious possibility of persecution throughout Colombia.

CONCLUSION

[52]     The Tribunal concludes that the claimant is a Convention refugee, pursuant to section 96 of the IRPA, and accepts his claim.

(signed) Catherine Solyom

November 3, 2021

Categories
All Countries Colombia

2021 RLLR 31

Citation: 2021 RLLR 31
Tribunal: Refugee Protection Division
Date of Decision: September 28, 2021
Panel: David Young
Counsel for the Claimant(s): Michael F. Loebach
Country: Colombia
RPD Number: TB9-22083
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000155-000157

DECISION

MEMBER:

[1]     I’ve reviewed the documents in this claim and asked the claimant some questions. I’m prepared to give my decision now.

[2]     The claimant, XXXX XXXX XXXX is making a claim against Colombia, seeking refugee protection pursuant to section 96 of the Immigration and Refugee Protection Act.

[3]     I find you are a convention refugee for the following reasons.

[4]     The allegations are set out in the claimant’s basis of claim form. They’re quite detailed and consistent throughout the narrative. They do not raise any credibility concerns that need to be addressed on what I considered to be the key issue here.

[5]     The allegations, as I see it, are on two parts. The first part is regarding gender identity. The second is regarding possible criminal targeting.

[6]     Based on the documents I’ve been supplied in, in support of the claim, I accept as credible the allegations regarding gender identity. This is, this is the (indiscernible) of the claim, this is sufficient for me to make a positive decision on.

[7]     So, I’ve not addressed the possible criminal targeting by paramilitaries because it is not necessary, and I, I make no finding on that aspect of the claim. As I said, it’s not necessary for me to, to.

[8]     The claimant’ s described his understanding of his, of his gender identity experiences. He lived as a result of that identity, and these are consistent with — as I said, internally consistent and consistent with country condition documents on Colombia. I have no reason to, to — I have no credibility concerns about, about those allegations.

[9]     The claimant submitted a passport. The passport is in the — includes the claimant’s (indiscernible) a former middle name. But I, I acknowledge that it is a passport issued to the claimant, and therefore it is sufficient to establish his identity and his, his Colombian nationality.

[10]   With regard to level of risk, this is covered in part by the claimant’s own evidence and by the, the country documents. I’m just going to refer briefly to a couple of documents that were submitted by counsel.

[11]   The first was an article contained in the 2019 package. It has one statement in particular that, that I find summarizes what, what I understand to be the situation in Colombia for the claimant and others generally situated. And it’s page 54, 55 of the country — first country condition document that speaks about the paradox between laws and practice.

[12]   The, the quote is that there is a strong — I’m going to be paraphrasing a little bit — there’s a strong legal framework, but in practice, practice it is rarely enforced. And that is my understanding from reviewing the country documents generally on, on this, this issue.

[13]   Other documents were included with the next country condition — the next package, which included country condition documents. These were all consistent and they point to, I think, persuasive evidence that you would be facing more than a mere possibility– a reasonable chance — there’s difference ways it’s phrased in the, in the, the, the jurisprudence. You would face a reasonable chance of persecution due to your gender identity.

[14]   Since gender identity is concluded in the Canadian law as coming within the parameters of the convention refugee decision — the — convention refugee definition as being a member of a particular social group.

[15]   The country documents also point to two other issues I have to address. And the first is state protection. Again, both your evidence, your statements and your narrative speak of your experiences trying to access state protection in Colombia, and the documents are consistent with that.

[16]   And, and, and I point out that your experience is part of a, a broader, a broader issue in the country. What you experienced is consistent with what happens in Colombia far too regularly, such that I would have to say that for you, there is not on, on a balance of probabilities state protection in Colombia at this time.

[17]   The laws that have been passed may eventually result in practices which could in the future mean that you would have state protection in Colombia, but I’m assessing the claim as things are now. So, as things are now, I do not find that you would have, have state protection in Colombia; would be afforded state protection in Colombia.

[18]   With regard to internal flight alternative, the problem for — that goes to, to a lack of state protection is cultural attitudes. And I, I do not see any evidence before me that there are places in Colombia you would live where the cultural attitudes would be different from what you’ve experienced or what the documents speak of. So, therefore I do not find that there is a reasonable internal flight alternative available to you in Colombia.

[19]   So, based on the reasons just given and on review of the evidence, I find you’re a convention refugee and I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2020 RLLR 163

Citation: 2020 RLLR 163
Tribunal: Refugee Protection Division
Date of Decision: January 4, 2020
Panel: Doug Armstrong
Counsel for the Claimant(s): (no information available)
Country: Colombia
RPD Number: VB9-04639
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000178-000185

— DECISION AND REASONS BY THE MEMBER

PRESIDING MEMBER:

Reasons for decision

Introduction

[1]       I have considered your testimony and the other evidence in the case and I’m ready to render my decision orally. A written form of these reasons will be sent to you and your counsel. It will be a transcript of what I am saying now.  The written reasons may be edited for generally readability and references to the applicable case law and the documentary evidence may also be included.

[2]       These are the reason for the decision in the claim of XXXX XXXX XXXX XXXX who claims to be a citizen of Colombia and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, IRPA.

[3]       In rendering my decision I have considered the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, SOGIE, and also the Gender Guidelines.

Allegations

[4]       You allege that you are a transgender female, where you were born with male sex organs but you identify since 2014 as a woman and you face persecution in Colombia for this reason.

[5]       In 2014, you along with other trans women in Bogota were pressured to smuggle items into prisons and you were beaten when you refused.

[6]       You moved to Tulua and you experienced discrimination there. You were fired from your job in XXXX 2014 when you went to work dressed as a woman.

[7]       In XXXX 2015 you were insulted, beaten and injured in Bogota when you were dressed as a woman and you often experienced verbal abuse.

[8]       You believe there is little effort by the government to protect trans people from discrimination and persecution. You fear persecution if you return to Colombia.

Determination

[9]       I find that you are a Convention refugee as you have established that you face a serious possibility of persecution for reason of your being a transgender woman.

Analysis

Identity

[10]     I find that your identity as a national of Colombia is established by your testimony and the supporting documentation filed, including certified copies of your passport and identity card in Exhibit 1.

[11]     You testified that you prefer to be known as XXXX although you have no identity documents in that name.

Credibility

[12]     I find you to be a credible witness and therefore believe what you alleged in support of your claim. You testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.

[13]     When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness and the reference there is to Maldonado.

[14]     I find that you have established on a balance of probabilities that you are a transgender woman.

Objective basis of future risk

[15]     Based on your credible allegations in testimony and the documentary evidence set out below, as well as the country condition evidence, I find that you have established that you face a serious possibility of persecution by reason of your being transgender if you were to return to Colombia by both state and non-state actors.

[16]     You testified that you have always been attracted to women and you started feeling like a woman yourself in 2013 or 2014. You felt like and lived as a woman from 2014 until you left to come to Canada in 2018, except that the last six months you lived as a man in Colombia in order to be able to work and make money. You saved the money to come to Canada.

[17]     You explained that you prefer to live as a woman and you plan to make a physical transition from male to female, although you have not started that physical transition yet.

[18]     You’ve explained that it was complicated to live as a trans woman in Colombia. You lived for about a year with a group of seven other trans woman in Bogota who operated a XXXX XXXX but they also smuggled items into the prisons and they pressured you to do the same. You refused to do that and they beat you up.

[19]     You got a job in your profession of XXXX XXXX in XXXX 2014 and in XXXX 2014 you began going to work dressed as a woman. You testified that your boss began to treat you strangely and make new demands that he would not normally require. You were fired from the job within a month of starting to dress as a woman. You believe that you were fired from this job because you’re transgender and you attempted to live as a woman openly.

[20]     You moved to Tulua in XXXXorXXXX XXXX 2015 but you were not able to find work in your civil engineering profession. You moved back to Bogota in XXXXor XXXX 2016.

[21]     You also testified that you have experienced verbal aggression, name-calling and you’ve been physically assaulted and injured in Colombia all because you are living as a trans woman.

[22]     You think the safest place to be able to live in Colombia is Bogota but you don’t believe you can live safely even there because of the fear of aggression, assault and not being able to work as a woman.

[23]     You testified that Colombia has a closed culture in terms of opinion and sexual orientation.

[24]     Your fears relating to the risks you face if you live openly as a transgender woman in Colombia are corroborated by documents in the NDP, that’s the National Documentation Package for Colombia, the March 29th, 2019 version.

[25]     I’ve considered the documentary evidence on the treatment of sexual minorities in Colombia. The legal framework for the protection of rights of sexual minorities is relatively progressive; however, in practice SOGIE individuals face significant discrimination in many facets of life and violence from society at large.

[26]     The legal protections that exist for sexual minorities are outlined in a Response to Information Request, or RIR, on the treatment of sexual minorities, which is NDP item 6.3.

[27]     NDP item 2.1 from the US Department of State says in part:

“Transgender individuals cited barriers to public services when health care providers or police officers refused to accept their government-issued identification. Some transgender individuals stated it was difficult to change the gender designation on national identity documents —

INTERPRETER: Sorry, can you repeat again after what you said about health service providers?

PRESIDING MEMBER: Or police officers.

INTERPRETER: Pardon me. Thank: you.

PRESIDING MEMBER: Okay.

“Some transgender individuals stated it was difficult to change the gender designation on national identity documents and that transgender individuals whose identity cards listed them as male were still required to show proof they had performed mandatory military service or obtained the necessary waivers from that service.”

[28]     NGOs or non-governmental organizations claimed discrimination and violence in prisons against persons due to their sexual orientation and gender identity remained a problem.

[29]     Despite government measures to increase the rights and protections of lesbian, gay, bisexual, transgender and intersex, or LGBTI persons, there were reports of societal abuse and discrimination as well as sexual assault. NGOs claimed transgender individuals, particularly transgender men, were often sexually assaulted in so-called corrective rape.

[30]     The constitutional court pronounced in 2016 that transgender persons faced discrimination and social rejection within the LGBTI community and recommended measures to increase respect for transgender identities in the classrooms. That report also says that NGOs reported several cases of threats against LGBTI human rights defenders as well as a high level of impunity for crimes against LGBTI persons. Such organizations partially attributed impunity levels to the failure of the Attorney General’s Office to distinguish and effectively pursue crimes against LGBTI persons.

[31]     NDP item 1.7, the UNHCR Eligibility Guidelines also refers to some serious levels of discrimination against SOGIE individuals:

“Individuals of diverse sexual orientations and/or gender identities, SOGIE, are victims of discrimination. Social movements demanding the recognition of the rights of gay men and lesbians have progressively made important though insufficient progress, including the recognition of the inheritance rights of same-sex couples, same-sex marriage and adoption by couples of the same sex.

Paradoxically, simultaneously with the advancement in terms of recognition of the rights of these individuals, violent incidents seem to have increased. Persons of diverse sexual orientations  and/or gender identities  have reportedly been exposed to torture in detention and to police violence. Furthermore, authorities often do not initiate investigations into cases of homicide and sexual violence against persons of diverse sexual orientations and/or gender identities.

A SOGIE rights organization in Colombia, Colombia Diversa, has recorded and verified 550 cases of homicide related to sexual orientation and/or gender identity in the period 2009 to 2014, including among the victims at least 86 transgender women and at least 18 SOGIE rights defenders.”

[32]     That report also says that particularly with respect to armed groups:

“NGOs have said that armed groups have imposed on persons of diverse SOGIE widely accepted gender roles by threatening to use violence as a punishment for not conforming. Some NGOs have also reported that the punishments perpetrated by guerilla groups, members of paramilitary groups including inter alia threats, assassinations, forced disappearances, grave physical and psychological harm and, above all, forced displacement of lesbian, gay and transgender persons.”

[33]     The Colombia LGBTI Report at NDP item 6.4 states at page nine that:

“Violence against LGBTI Colombians is pernicious and widespread. While there is no official government data that captures it, activists and individual accounts suggest a reality in which violence against LGBTI people permeates every sector of society: schools and universities, public places and city streets, families and communities.”

Nexus and nature of the harm

[34]     I find that your fear of persecution has a nexus to the Convention ground as a member of a particular social group as a transgender person.

[35]     The harm that you fear is serious.  The documentary evidence as well as your testimony indicates that violence against SOGIE persons in particular and transgender people is quite widespread and conducted with impunity.

[36]     As well, the level of discrimination by society at large is severe, particularly with respect to people who are transgender.

[37]     I find based on all of the evidence before me that you face a serious possibility of persecution for reason of being a transgender woman if you return to Colombia.

State protection

[38]     I have also considered whether state protection is available to you in Colombia. I find that adequate state protection would not be reasonably forthcoming in this particular case. You testified that you did not seek help from the police after the assaults and aggression that you experienced because you’ve been told that many trans women are mistreated by the police. You have not been mistreated by the police yourself but you know of other trans women who have been mistreated.

[39]     I find that the documentary evidence on the treatment of sexual minorities indicates that crimes against SOGIE people is done with impunity. The US Department of State Report, item 2.1 in the NDP says that:

“As of September 18th, the Attorney General’s office was investigating at least two alleged homicides of LGBTI individuals. Investigations into crimes committed by the security forces did not appear in the Attorney General’s office system. NGO Colombia Diversa reported six cases involving eight victims of police abuse of persons due to their sexual orientation or gender identity with the majority of complaints coming from transgender individuals.”

[40]     So, there is evidence that the authorities themselves are responsible for the abuse of persons for their sexual orientation or gender identity.

[41]     The UNHCR Guidelines at item 1.7 in the NDP states that state authorities, especially the police, are reported to participate in violent acts against persons of diverse sexual orientation and gender identity. This document also notes at page 51:

State authorities, especially the police, are reported to participate in violent acts against persons of diverse sexual orientations and/or gender identities. In its report for the Committee Against Torture, Colombia Diversa recorded 212 incidents of police violence in the period 2008 to 2014. Moreover, police reportedly often failed to acknowledge the existence of prejudice as the primary cause of violent incidents against person of diverse sexual orientations and/or gender identities. In some cases such incidents are reportedly classified as personal violence having been caused by the behaivour of the victim. Individuals of diverse SOGIE are not included among the profiles identified by the government as specifically at risk of violence or harm and therefore are not eligible for special protection.”

[42]     I find that the level of protection provided by the state in Colombia falls far short of being adequate given the impunity with which crimes against SOGIE individuals are treated and as well as recurring reports of police being involved in the abuse of these groups.

Internal flight alternative

[43]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Colombia. I find that as a Colombian national who is transgender there is nowhere you could reasonably live safely in Colombia. The discrimination against someone like you would be severe and you face a serious possibility of persecution throughout the country.

Conclusion

[44]     Based on the analysis above, I conclude that you are a Convention refugee. Accordingly, I accept your claim.

[45]     Thank you for attending today and I wish you good luck.

—PROCEEDINGS CONCLUDED

Categories
All Countries Colombia

2020 RLLR 158

Citation: 2020 RLLR 158
Tribunal: Refugee Protection Division
Date of Decision: January 23, 2020
Panel: Kim Bugby
Counsel for the Claimant(s): Victoria A Bruyn
Country: Colombia
RPD Number: TB9-00965
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000123-000126

DECISION

[1]       MEMBER: So, this is the decision for the claimant XXXX XXXX XXXX XXXX. The claimant is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. I’ve considered the testimony and the other evidence in this case and I am ready to render a decision orally.

[2]       I find that the claimant is a Convention refugee as defined under Section 96 of the Act and I accept the claim. The allegations are set out in the Basis of Claim form. In summary the claimant was targeted by the AGC, the Black Eagles, and the Revolutionary Forces of the People, as a result of his work for XXXX XXXX, an organization focused upon promoting the rights of LGBT persons in Columbia.

[3]       The Nexus is political opinion as expressed through his work as a XXXX XXXX XXXX for the LGBT community and membership in a particular social group, as a gay man XXXX as XXXX XXXX.

[4]       The claimant on a balance of probabilities has established his identity through testimony and submission of his Columbian passport and other identity documents.

[5]       Based upon the claimants’ credible testimony and as substantiated by the documents submitted into evidence, I accept the following facts. The claimant was employed by the XXXX XXXX XXXX from 2010 to 2018. During his time with the organization, the claimant was responsible among other duties for the investigation of human rights abuses against LGBT persons and the collection and publication of related data. In XXXX 2017, the organization published and publicly presented a report which highlighted abuses of LGBT persons in education, employment, society, and by public officials. Shortly after publication of the report the claimant began to receive threats of harm by phone and text from various para-military groups.

[6]       Death threats were also received at the XXXX XXXX offices. The written threats included reference to social cleansing of clients’ of XXXX XXXX but also those who worked for and supported them. The organization was unable to provide any protection to its employees or its clients’ and took the position that such threats had always been a known possibility. The claimant reported the threats received at the offices of XXXX XXXX and the threats he personally received by phone and by text to both the ombudsman’s office and the prosecutor’s office seeking protection. Reports were taken but no protection was ordered. The claimant went into hiding at a friends home and disconnected his cell phone. However, his family continued to receive threatening calls at the claimant’s home number. The claimant fled Columbia in XXXX of 2018.

[7]       The objective country documents are consistent with the claimant’ s evidence. At Tab 1.7 the NDP speaks to the high-risk profiles of social leaders and human rights defenders. At Tab 2.9 of the NDP, the documents indicate a constant level of violence against social leaders and the human rights activists, perpetrated by the Bacrim. Based upon the claimant’s personal circumstances and the objective evidence I find that the claimant has established on a balance of probabilities a well-founded fear of persecution.

[8]       With regard to state protection the claimant reported the threats to government authorities but was not granted protection. The claimant’s evidence is consistent with the objective country reports at Tab 7.3, which indicate that the claimant does not fit the profile of those eligible for protection. At Tab 7.23 the NDP indicates that protection measures for victims are very limited and the measures in place do not yet meet the needs on the ground. Further, at Tab 2.6 the reports indicate that the political culture views human rights defenders as obstacles rather than guarantees for the rule of law in a democratic system with correspondingly high levels of impunity in Columbia, related to aggressions against human rights defenders. Reporting an impunity rate close to 90% in cases of a tax, a tax against defenders.

[9]       Based on the claimant’s personal circumstances and the objective country documentations, I find that the claimant has rebutted the presumption of state protection with clear and convincing evidence. Adequate state protection is not available to the claimant.

[10]     With respect to internal flight alternative, on a balance of probabilities I find that there is no viable internal flight alternative that would be safe for the claimant. The claimant was responsible for investigation of cases of abuse against LGBT persons and for assisting those same people when they proceeded with legal action against the perpetrators of the abuse. Those accused of the abuse include both police and criminal groups. The publication of data regarding this persecution on a balance of probabilities, led to the threats against the claimant and would remain a motivating factor for the armed groups to seek out the claimant.

[11]     The principal claimant has been declared a military objective. The country conditions indicate at Tab 7.2 that the, sorry, at 7.21 the country conditions indicate that when a person is declared a military objective it means that their life, physical integrity, and freedom are endangered, and that this threat also extends to their family. Essentially being declared a military objective is being issued a threat to be killed.

[12]     The claimant has been targeted due to his XXXX XXXX work and the country conditions are consistent with the claimants’ evidence that XXXX activists are at risk throughout the country. At Tab 2.2 the report indicate that XXXX XXXX defenders continue to be one of the main victims of the ongoing armed conflict. At Tab 2.9 the reports indicate that there are historically high levels of impunity in Columbia related to aggressions against XXXX XXXX defenders and this has been one of the structural causes for the repetition of these serious crimes, and again the reports indicate an impunity rate of 90% in cases of attacks against defenders.

[13]     Lastly, the claimant identifies as a gay man XXXX with XXXX XXXX. The objective country reports indicate instances of police violence against LGBT persons, societal abuse and discrimination, and further that criminal groups target homosexual and transgender individuals. Well the claimant has not been open

about his sexuality in Columbia, he would face further risk were his personal circumstances to come to light in Columbia.

[14]     Considering the claimant’s XXXX XXXX work, his profile as a gay man XXXX with XXXX XXXX XXXX and the objective country conditions, I find that there is no viable internal flight alternative that would be safe as the claimant faces a risk of persecution in all parts of the country.

[15]     Based on the totality of the evidence, I find the claimant to be a Convention refugee and I accept the claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2020 RLLR 141

Citation: 2020 RLLR 141
Tribunal: Refugee Protection Division
Date of Decision: February 3, 2020
Panel: Isis Van Loon
Counsel for the Claimant(s): Simon Trela
Country: Colombia
RPD Number: VB9-03954
Associated RPD Number(s): VB9-03929, VB9-03968, VB9-04026, VB9-04033, VB9-04034
ATIP Number: A-2021-01106
ATIP Pages: 000158-000162

DECISION

[1]       MEMBER: [XXX] the principal claimant, [XXX] and [XXX] her adult sons, [XXX] her adult daughter and the mother of and designated representative for the minor claimants [XXX] and [XXX] seek refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. I maintained the designation of [XXX] as the designated representative for the two minor claimants pursuant to subsection 167(2) of the Act and Rule 20 of the Refugee Protection Division Rules. These claims were joined according to Rule 55 of the Refugee Protection Division Rules.

[2]       The claimants allege that FARC will murder them if they’re returned to Colombia because they’ve refused to pay the FARC’s extortion demands. The FARC has murdered the principal claimant’s uncle on [XXX] the [XXX] 2018 after their first written demands for payment were not met. I find the claimants have established on a balance of probabilities that they would personally be subjected to a danger of torture or face a risk to life or risk of cruel and unusual treatment or punishment upon return to Colombia. My reasons follow, the claimants’ identities and citizenship as nationals of Colombia were established by their testimony and the supporting documentation filed, including certified true copies of their passports in Exhibit 1.

Credibility

[3]       When a claimant swears to the truthfulness of certain facts, there is a presumption that what they have said is true, unless there’s sufficient reason to doubt the truthfulness. The claimants testified in a straightforward manner with no inconsistencies in their testimonies or contradictions between their testimonies and other evidence before me. I found the adult claimants to be credible witnesses and therefore accepted as true the facts that they have alleged in support of their claim. The minor claimant’s-­, actually one did testify a little bit, the other one did not testify. The claimants provided the following relevant and prohibitive documents in their Exhibit 4. Their corporate documents showing the family owned the [XXX], a [XXX] corporation located in Bogota. Their two threatening letters referred to as pamphlets from the FARC dated [XXX] of 2018 and [XXX] of 2019. There are various reports of crime-, of the crime related to the FARC to the police, including the ones made after [XXX] 2018 and on [XXX] 2019. As well as the homicide investigation documents from the police with respect to the murder of the uncle and these include photos and a description of gun-, of his cause of death as a gunshot wound to his face. There’s a copy of the-, of an advice letter from the Minister of Defense from [XXX] of 2019, which is outlining to the claimants steps that they personally should take to try to be safe.

[4]       There’s a dep-, depositions from three former employees that state that they were aware that the FARC had been threatening their employers and the FARC also demanded extortion payments from the workers. I found these documents were relevant and served to corroborate the claimant’s allegations that the family owned a company that was being extorted by the FARC. That they refused to pay the demand and reported the crimes to the police and that their uncle had been murdered for failure to pay the FARC. Victims of crime corruption or vendettas  generally cannot establish a link between their fear of persecution and one of the Convention grounds. Although the claimants are clearly politically opposed to the FARC, they were not targeted by the FARC on the basis of their political opinion, but they were targeted for criminal extortion. So, there is no information before me indicating that FARC targeted the claimants by reasons of a Convention ground and accordingly I’ve assessed these claims under Section 97(1) of the Act.

[5]       In order to be considered a person in need of protection under Section 97(1), claimants must demonstrate on a balance of probabilities that they would be subjected personally to a risk to their life or a risk of cruel and unusual treatment or punishment if they’re returned to Co-, Columbia in this case. In addition, in accordance with 97(1)(b)(ii), the risk that the claimant faces must not be one that is faced generally by other individuals in or from Colombia. The claimants have established that they’ve personally been targeted by the FARC group, in fact, the first FARC threat in the form of a pamphlet specifically named the principal claimant, her adult sons, and daughters, and includes the children that is her grandchildren, the minor claimants, in that first pamphlet. The risk the claimants face, I find, is unique to them and it’s significantly greater than the risk faced by others generally within Colombia. On [XXX] of 2018, the first threatening extortion pamphlet from the FARC was delivered to the claimants while they were en route to their summer place about four hours from Bogota. Two men on motorcycles stopped them in their car about an hour away from this summer house to deliver the threat, on [XXX] they noticed motorcycles around their business in Bogota and they informed the police. They also informed police of the first threat, the claimants went to hide at their summer house on [XXX] around 7 o’clock that evening, armed men came to demand the extortion payment and their uncle refused and they murdered him and threatened the entire family, if the payments weren’t made. The claimants reported this to the police and a homicide investigation was opened, the claimants received a number of threatening phone calls over time, where people identifying themselves as being from the FARC, said the claimants should pay or be killed like the uncle and there was nowhere they could hide. And the FARC gave specific details about the family that made the family believe that the FARC was monitoring them.

[6]       The claimants attempted to hide in [XXX] from [XXX] to [XXX] of 2019, this is the same province as the city of [XXX]. They continued to receive threats and warnings to pay, they then returned for a short time to Bogota, never staying long in one place, as there were legal documents with respect to the business that had to be signed. On [XXX] 2019 they received a second pamphlet from the FARC which named them as military objectives and warned their employees and they-, sorry they warned their employees, closed the business, and went to the police that same day to report this new threat. The police warned them that as the threats specified they were now considered FARC military objectives, there is nowhere safe in Colombia and they should leave the country. The police did provide them advice on how to be safe but essentially, it’s a self-protection type of advice that was provided, such as avoiding travel routines, routes used for transportation, et cetera, carry with you an effective device of communication, if you’re at a traffic  light, when you’ve had to stop or stop signs et cetera, look around to see if there’s anything suspicious and be ready to keep driving, and share these safety measures that you adopt yourself with your-, your family.

[7]       So clearly, the police themselves were not willing or able to more than to just give advice on what the claimants themselves could do to try to stay safe. The claimants fled to hide with a friend in Cartagena, the designated rep for the two minor claimants, their mother, was separated from her former husband and it took some time for her to locate him and get his permission to take the minor claimants out of the country. This delayed the family’s departure, they received the authorization from the ex-husband on [XXX] the [XXX] of 2019 and left for Canada on [XXX] of 2019. The minor claimant’s mother said that she had notarized documents giving her ex-husband’s permission to remove the children from the country and that it’d been necessary for her to show these documents while exiting Colombia and entering Canada. She did not have these notarized documents with her at the hearing but offered to provide them as she had them at home in Canada. On a balance of probabilities, I am satisfied that she did have authorization from the minor claimant’s father to take the two minor claimants out of Colombia.

[8]       The NDP 7.2 talks about the criminal groups and says that they pursue function of ter-, functions of territorial, social and economic control exerted by violent means. Their activities include murders, smuggling, drug trafficking, kidnapping, human trafficking and so on. They’re known to establish illegal checkpoint, enter private homes, and monitor private communications. NDP 7.18 states that initially the November 2016 peace process with the FARC brought over 11,000 members back to civilian life. At that time there were around 1,000 FARC dissidents who refused to cooperate and were acting in fact as de facto rulers in their desperate territories. Despite their origins, many of these dissident groups were even more abusive than the predecessors as they compete among themselves, sometimes brutalizing local communities to maintain their control. After the peace accord, the situation has worsened and there are more FARC members leaving the peace process, in spite of a concerted effort by the Colombian government with over 10 billion in U.S. assistance over the past 15 years. The rebel FARC group still operated in a large proportion of Colombia’s 32 departments and currently was estimated to have about 8,000 gorillas in its ranks, and this is more, this is a post peace accord document NDP 4.5. I note also maps showing dissident elements of FARC scattered throughout the country and NDP 1.2 stated that following the demobilization of the FARC in 2017 dissidents formed groups throughout Colombia. So, there’s plenty of evidence that indeed these FARC dissident groups are operational widely in Colombia.

[9]       NDP 7.21 states that the FARC is known to issue threats declaring people military objectives. When a person is declared a military objective, it means that they’ve been issued a threat to be killed. When a person is a military objective their life, physical integrity, and freedom are endangered and this threat also extends to their family. These declarations can come in many forms, including the pamphlets or-, or essentially, they appear to be letters from the FARC, that the claimants received. Based on the claimants’ testimony and supporting documents and the country conditions documents, I’m satisfied on a balance of probabilities the claimants would be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment at the hands of the dissident FARC if they return to Colombia.

[10]     Now except in situations where state is in complete breakdown, states are presumed capable to protect their citizens. To rebut this presumption the onus is on the claimant to establish on a balance of probabilities with clear and convincing evidence that their State’s protection is inadequate. So, we look at country documentation, it states that a citizen, not in a position of power or in the judiciary, might not receive protection from the police or other forces, this is NDP 7.21. The a-,which is a response to information request from the IRB, one of the people the IRB spoke to was an assistant professor who said relocation within Colombia is not an option for those who’ve been declared a military objective because paramilitary and guerilla structures have extended vertical organizations and large networks. As previously discussed, the FARC has wide reach in the country despite the State’s efforts, after they received the first FARC pamphlet and reported it to the police, the claimant’s uncle was murdered and the murder has not been solved. The FARC was able to locate the claimants in a number of places previously, the claimants describe how they were advised by police to leave the country after they were declared military objectives in the second pamphlet from the FARC. And this is in line with the country documentation that states that there is nowhere internally they can relocate and this would be despite the fact that there is a functioning state with some degree of state protection. The claimants also provided an Exhibit for that copy that I’ve referred to previously on the standardized advice police give to people at risk such as the claimants and it’s basically just self-care. The claimants had already been taking similar measures before they received the second pamphlet from the FARC, while stopped at an intersection in Bogota.

[11]     Satisfied on a balance of probabilities that the State of Colombia is unable to provide adequate protection to these claimants, if they return to Colombia and accordingly, I find that there is no adequate state protection for these claimants. Now, an internal flight alternative arises if a claimant who otherwise meets all the elements of a definition of someone who needs protection in their home area of a country, nevertheless, couldn’t-, could live safely elsewhere in that country and therefore would not be in need protection. There is a legal test which has two prongs, on the first prong I’d have to be satisfied that there would be a place in the country where the claimants could safely relocate. As well, conditions in that part of the country would have to be such that they weren’t unreasonable, in all circumstances, including those particular to the claimants for them to go there and seek refuge there. Well, the FARC has shown persistence in tracking these claimants over a period of time, twice finding them while traveling on the roads, and the FARC have indicated that they have details about the family members. Furthermore, they did not hesitate to kill the uncle when he refused their extortion demands, I’m satisfied that FARC has both motivation and means to harm the claimants. Furthermore, the country documents as previously discussed, shows that FARC is widely active in Colombia in spite of the 2016 peace accord. As well, the country documents previously discussed showed that for those declared military objectives, as these claimants have been, there is no viable IFA. They are not safe anywhere in Colombia.

[12]     Therefore, I find on a balance of probabilities, the claimants would be subjected personally to a risk of life or a risk of cruel and unusual treatment or punishment, if returned to Colombia. And accordingly, I’ve accepted their claims.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2020 RLLR 111

Citation: 2020 RLLR 111
Tribunal: Refugee Protection Division
Date of Decision: December 11, 2020
Panel: Erin Doucette
Counsel for the Claimant(s): Sherif R. Ashmalla
Country: Colombia
RPD Number: TB9-25353
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000179-000184

DECISION

[1]       MEMBER: So, I’m ready to render my oral decision, and before I read everything through I’ll just let you know that I am accepting your claim for refugee protection. Okay.

[2]       So, this a decision for the following claimants, [XXX] and [XXX].

[3]       Interpreter, just to confirm, are we going to do simultaneous for the … for the decision?

[4]       COUNSEL: We can’t do simultaneous because, like you said earlier, everything else … it will cover everything you’re saying.

[5]       INTERPRETER: Do you want … if you want…

[6]       COUNSEL: Do you want to just listen in English? Are you … do you understand any of … same when I spoke you understood everything pretty much.

[7]       CLAIMANT: Perfect, yeah.

[8]       MEMBER: Is that okay? Sorry, I … I’m also cognizant of the time. So, okay.

[9]       INTERPRETER: Okay.

[10]     MEMBER: Okay. So, you’re claiming to be citizens of Columbia and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[11]     I’ve considered your oral testimony and the other evidence in the case and Section … offering my decision now.

The Determination:

[12]     I find that you are Convention refugees on the grounds of your political opinion as animal rights activists who spoke out against government corruption facing a government run shelter and as a result, you face a serious possibility of persecution, and this is for the following reasons.

Your Allegations:

[13]     So, you’ve alleged the following. You are citizens of Columbia. You allege that you are animal rights activists who ran a [XXX] providing support to street animals and assisted with adoptions.

[14]     Your work involved volunteer work at a government funded shelter in [XXX]. While volunteering at the shelter and facilitating adoptions, you discovered that malpractice and misallocation of funds had occurred.

[15]     You raised your concerns several times to the municipality through the mayor’s office, as well as escalating your complaints to the ombudsperson’s office and the Attorney General. After raising these concerns you allege you began to receive threatening phone calls and text messages ultimately escalating to experiencing an in person threat outside your home in Bogota.

[16]     You allege that complaints to the police were ineffective.

[17]     You had planned a vacation to the USA and Canada in [XXX] and [XXX] of 2019. You alleged you hoped the problems at home would settle and that you had planned to return to Columbia.

[18]     You alleged that while in Toronto in [XXX] 2019, you received a distressing call from the female claimant’s mother advising that a threatening letter had been left by the Black Eagles, as well as a dead dog on the doorstep. The letter threatened both of your lives due to your animal rights activism.

[19]     You alleged you felt you could not at that point return to Columbia and immediately initiated a refugee claim without … without delay.

[20]     You allege if you return you will be physically harmed, killed, and you also would not be able to continue your animal rights activism.

[21]     You allege that there is no State protection for you or an internal flight alternative.

[22]     With regards to identity, your personal identity as citizens of Columbia has been established by your testimony and the supporting documents, namely those in Exhibit 1 the … the Columbian passports, your USA and Canadian visas, and I find, on a balance of probability, that identity and country of reference have been established.

[23]     With regards to nexus, I find that there is a link between what you fear and one of the five grounds, namely political opinion, opposition to government corruption, and as animal rights activists. Therefore, I’ve assessed this claim under Section 96.

Credibility:

[24]     In terms of your general credibility, I found you to be credible … both credible witnesses and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim Form.

[25]     Specifically, your testimony was provided in a spontaneous and genuine way without any inconsistencies or contradictions with the numerous documents that you’ve disclosed.

[26]     Your … your testimony about your animal rights activism was … was detailed and genuine, and without hesitation or preparation, you permitted me to view your social media pages for the … for your foundation, which … which provided consistent evidence about your adoption, process, animal welfare work, your animal activism, and your interaction with your … with your community.

[27]     Your knowledge and history provided about your motivation to become animal rights activists was detailed, genuine, and very personal, specifically, as it relates to the issue regarding street animals, which you explained is, you know, quite problematic in Columbia, and that was your main focus.

[28]     Your testimony about your reasons for speaking out and about the issues you incur at the government animal shelter were not only consistent with your very detailed and genuine documents, but also with your testimony about your convictions and your beliefs. You simply could not stay silent or not speak out. In doing so you drew unwanted and dangerous attention.

[29]     I find your testimony and supporting evidence in this regard to be credible and uncontested.

[30]     The copies of the threatening text messages that relate to the threats to your complaints about the concerns at the shelter and the corruption you uncovered, the transcript of the call received from a former shelter worker who had also been threatened, the numerous and extremely detailed right of request letter sent to the mayor’s office and the municipal Unit of Agriculture and Technical Assistance or UMATA for short.

[31]     I find your evidence credible about not claiming in the USA or Canada, given you had filed police reports and that it wasn’t until the threats escalated further with the … with the female claimant’s mother receiving the threatening letter from the Black Eagles as well as the dead dog on the door, and you determined at that point essentially your fear was quite crystalized and you have alleged you were no longer safe in Columbia and you initiated a refugee claim without delay.

[32]     Additionally, the other documents support your claim. The … the registration for the [XXX], the registration for your businesses, the Facebook and Instagram pages, the copies of numerous texts between clients who had adopted animals from the shelter only to find out that they were sick and had not been properly cared for there. And, of course, that’s what led you to initiate your investigation.

[33]     And the threats were directly related to your activism and your investigation and complaints of government corruption, and that’s also what brought about obviously the … the persecution.

[34]     So, I find that your subjective fear is established by your credible testimony and I believe what you have alleged, on a balance of probabilities. There’s also an objective basis for your fear.

[35]     So, with regards with the Black Eagles, I’m referring to NDP Item 7.10 and Item 7.11, specifically about the Black Eagles that notes that they have a known political agenda. They are involved in social and political extermination of social and political activists, as well as disappearances, homicides, and extortion.

[36]     And the country condition documents that your counsel provided in Exhibit 6 also confirm as well that the means of their communicating their threat was in keeping with essentially their style or their … their sort of modus operandi if you will, threatening letters left under the door as well as the letter had an insignia match, the letter that you provided.

[37]     With regards to … so, there is a well-founded fear. Your subjective fear has an objective basis and I find you have a well-founded fear of persecution.

[38]     With regards to the issue of State protection, the presumption of … there is a presumption that a State can protect its citizens unless the State is in a complete breakdown or there’s past personal experience where the State was not forthcoming, or we look to similarly situated persons. Okay. And to rebut the presumption there must be clear and convincing evidence.

[39]     I found that both of you are credible and that there is clear and convincing evidence to rebut the presumption of State protection.

[40]     You made efforts at many levels to get assistance with your concerns. When the threats were escalated you went to the police who advised you and you took them at their word, that they couldn’t do much other than, you know, call us every now and then for a … for a patrol. They referred you to the fiscalia. I find that you’re credible in stating that you went to the fiscalia. The fiscalia was not able to help you. But at that point too, you know, you were … you were in the process of doing everything that you could.

[41]     You took a vacation and that again, is where things shifted. There … it’s almost like a bit of sur place claim. The situation happened where your mother received the threatening letter and the dead dog, and at that point you realized that, you know, your lives were truly in danger and that if you had waited and stayed, you know, maybe things wouldn’t have turned out as they had.

[42]     There was an objective basis for you not feeling that protection was forthcoming. And the evidence throughout the NDP, specifically, in 2.1 the DOS report, 2.17 speaks about social leaders.

[43]     9.2 and 9.5 confirm that despite efforts to put protection in place, activists, social leaders, and those that expose and speak out on government corruption are the most vulnerable and that protection is often delayed, ineffective, and essentially not adequate at an operational level, this was what you were experiencing. So, your experience is … is manifest in the objective evidence.

[44]     The claimants … you made efforts that were reasonable, but I find that your reason for not pursuing further protection is also to be reasonable, given your personal circumstances, as well as the objective country documentation, and I do find that you have rebutted the presumption of State protection.

[45]     State protection would not be reasonably available to you in your particular circumstances, especially considering the level of corruption within the government, and that you were specifically speaking out about government corruption. As such, the State is somewhat of an agent of persecution and as such, it’s not reasonable to expect adequate protection from the State.

[46]     Flowing from that, we consider IFA, internal flight alternative. And yes, I did flag Barranquilla and Cartagena, but I find that … again, this is a two prong test. The first prong is about safety. Would you be safe from persecution in the IFA? I find that you would not. Therefore, there is no IFA. A … a suitable IFA does not exist.

[47]     You cannot be expected to stop your activism. It’s been very clear from your testimony that that is core to your beliefs and … and it’s just the same as, you know, a SOGIE claim. We couldn’t ask someone to stop being gay. We cannot ask someone to stop their activism. This is something that’s true to your … to the core of your beliefs.

[48]     You also were located in Bogota, which is a major metropolitan.

[49]     The Black Eagles do have connections throughout Columbia.  They often fill in the gaps left by other paramilitary and narco-military groups when they disband. As well there’s the corruption connection with the government corruption.

[50]     The first prong, as I said, is not met. You would not be safe and I do find that there is a serious possibility of persecution throughout the country.

[51]     Therefore, in conclusion, based on the totality of the evidence and your counsel’s submissions, I find that the claimants [XXX]and[XXX] to be Convention refugees and I accept your claim.

[52]     CLAIMANT: Thank you.

[53]     COUNSEL: Very good. Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2020 RLLR 75

Citation: 2020 RLLR 75
Tribunal: Refugee Protection Division
Date of Decision: March 16, 2020
Panel: Shams Alidina
Counsel for the Claimant(s): Raoul Boulakia
Country: Colombia
RPD Number: TB8-24792
Associated RPD Number(s): TB8-24829, TB8-24828, TB8-24793, TB8-24803
ATIP Number: A-2021-00800
ATIP Pages: 000100-000104

DECISION

[1]       MEMBER: Sir and madam, I have a decision for you, and these are my reasons for the decision.

[2]       If you need the reasons, you can always ask the Refugee Board to give it to you.

[3]       INTERPRETER: Excuse me, sir?

[4]       MEMBER: If you need the reasons in writing, the Refugee Board can give it to you.

[5]       [XXX], hereinafter “the claimant”, her husband, [XXX], and their children, [XXX] and [XXX], are citizens of Colombia claiming for refugee protection in Canada pursuant to sections 96, 97(l)(a), and 97(l)(b) of Immigration and Refugee Protection Act, IRPA.

[6]       The claimant alleges that she was in a [XXX] called [XXX] that was involved in instructions in [XXX]. She had [XXX] in Bogotá, and she had a number of [XXX] belonging to her, her husband, and her daughter. Because of her profile, her office was contacted by the ELN guerrillas —

[7]       INTERPRETER: By —

[8]       MEMBER: By ELN guerrillas, asking for contribution to support their cause. Initially, the claimant did not provide any money to them, but after being targeted several times and fearing death, on one occasion she paid them [XXX] pesos. After the payment, she felt that ELN would stop the extortion, but the ELN did not. They continued extorting her, and finally they even targeted her daughter, who was abused physically and sexually by the ELN. And when the claimant returned to Bogotá, she was almost killed by them. Her driver was able to swing his car and was able to save her. She left Colombia despite her parents needing her, despite all the [XXX] she had, despite all the [XXX] she had, to come to Canada to seek protection.

Identity

[9]       The claimant’s identity has been established to the satisfaction of the panel.  In that the panel refers to Exhibit 1, where the panel sees the claimants’ passport copies, which indicate that all the claimants are citizens of Colombia.  And the claimant testified that they do not have any status anywhere else.  On a balance of probabilities, the panel finds that the claimants in this case are all citizens of Colombia.

[10]     The determinative issues in this case are credibility and subjective fear.  On that subject, the panel incorporates Counsel’s submissions in its decision regarding subjective fear. The claimant and her daughter were very emotional. Their demeanour clearly indicated their fear of the ELN guerrillas.

[11]     Based on the evidence, which is supported by documentary evidence in Exhibit 4, the panel finds that the claimant and her husband were reasonably [XXX] people. The claimant had [XXX] of [XXX], while her husband had one, which he [XXX] prior to coming to Canada. They have several [XXX] and [XXX]. The claimant testified that she created an [XXX] for her family. She loved her country. Her parents are vulnerable — they’re still there — but her daughter has been stigmatized by what happened to her. The claimant indicated on several occasions that it was a big mistake on her part to have not left Colombia earlier, and had returned, after coming to Canada, back to Colombia. She testified that she had apologized to her family for doing what she did. And while she was in Colombia, she had a bodyguard.

[12]     INTERPRETER: She had —

[13]     MEMBER: Bodyguard, and a bulletproof vehicle for safety of her whole family. Her bodyguard was an [XXX], who finally told her to flee from Colombia if she wanted to save her life and lives of her family. On one occasion, the claimant testified that she had to return to Colombia because of the [XXX] situation of her son, and she provided documentary evidence to support that.

[14]     Therefore, based on the evidence provided by the claimant as well as Counsel, the panel is satisfied that the claimant had to return to Colombia, but despite of all the [XXX] she had, she could not get any police protection. She went to Fiscalía on more than one occasion. Even after her laptop was stolen — and Counsel showed the panel the little video of that stealing — the Fiscalía could not do anything for her, and she testified she had no other alternative but to come to Canada to seek protection.

[15]     The panel finds, based on what Counsel submitted and the claimant testified, that the claimant’s explanation about subjective fear is satisfactory. In this case, the agents of persecution are the ELN guerrillas. Given the amount of [XXX] she had, it is plausible that the ELN would be motivated to seek extortion from her.

[16]     Insofar as credibility is concerned, the claimant was reasonably credible witness. There were some minor credibility issues, which were explained by the claimant, her daughter, and Counsel in his submissions to the satisfaction of the panel. The panel gives the benefit of doubt in this case to the claimants and accepts their story in support of the claim. This is a well-documented claim, in that it contains support documents for everything the claimant indicated, including [XXX] that she [XXX], the visits to Fiscalía, and not obtaining protection from the authorities.

[17]     In regards to IFA, because ELN is present everywhere, the panel does not find that the claimants would have a viable internal flight alternative in Cartagena.

[18]     And the claimant’s testimony is supported by the documentary evidence before the panel, and the panel is referring to the country conditions provided by Counsel as well as the IRB. The DOS report indicates that the most significant human rights issues included extrajudicial and unlawful killings. Reports —

[19]     INTERPRETER: Extrajudicial and —

[20]     MEMBER: Extrajudicial killings. The reports of torture and arbitrary detention, corruption, rape, and abuse of women and children by illegal armed groups. The panel will refer to other documentary evidence the details, that is Response to Information Request COL-106085.E.  I think they know what I’m saying. And the document indicates that ELN is a leftist armed group. The ELN was involved in peace negotiations with the government, but because the ELN continued attacks, those peace negotiations were terminated, and because ELN was involved with the government in peace negotiations, and the claimant’s non-payment of Vacuna (ph) —

[21]     INTERPRETER: And the claimant’s –­

[22]     MEMBER: Of Vacuna.

[23]     COUNSEL: Vacuna, extortion.

[24]     MEMBER: Extortion.

[25]     INTERPRETER: Okay, okay.

[26]     MEMBER: Made them an enemy of the ELN. The ELN felt that they had an opinion against the ELN for not supporting their cause, and because ELN participated in peace talks with the government of Colombia, it is regarded as a component of state machinery, and an opinion against the component of the state machinery amounts to imputed political opinion against the state machinery. And therefore, the claimants have established a nexus to the Convention ground today. The report indicates that there were 2,500 combatants in the ELN force, and the ELN operates using columns, which were called war fronts. The same document indicates that ELN retains an active presence in the country. Insofar as the activities are concerned, the same document indicates that ELN is involved in kidnapping, launching bomb attacks against police officers, attacking government targets —

[27]     INTERPRETER: Attacking —

[28]     MEMBER:  Government  targets,  attacking  economic  infrastructure,  recruiting  children,  using antipersonnel land mines, displacing civilians, and killing them.  The same document indicates that there’s a strong incursion of the ELN in many, many areas around the country. In the first ten months of 2017, the ELN was responsible for 45 percent of the total mass displacement of people. ELN is amongst the organized armed groups that are taking advantage of the weakness of the state’s presence in the areas where the former FARC had influence. At this time, ELN has expanded its role in the drug trade after the demobilization of the FARC guerrillas. The same document indicates that it is possible that the ELN can monitor or target across Colombia.

[29]     In regards to protection, the same document indicates that state protection available to victims of ELN was scarce, that the protection measures for people who are victims of ELN are very limited. For victims who, given their positions or their activities, may be subjected to extraordinary or extreme risk, the DOS indicates that the ELN is involved in unlawful killings, political killings, extortion, kidnapping, et cetera. [inaudible] of the evidence that is before the panel, the panel finds that the ELN is a strong leftist guerrilla group operating all over Colombia. In this case, the claimant being a wealthy person —

[30]     INTERPRETER: In this case —

[31]     MEMBER: A [XXX] person, did not support their cause. She became the enemy of the ELN. They targeted to kill her at one point, but she was able to escape because her driver was able to escape from the scene. They targeted her daughter —

[32]     INTERPRETER: They —

[33]     MEMBER: Targeted her daughter. They not only beat her up, they raped her. She testified that they had ruined her life.

[34]     INTERPRETER: That they had —

[35]     MEMBER: Ruined her life. Based on the totality of the evidence adduced and the country conditions, and the documentary evidence claimant provided to support her claim, panel finds that there is a serious possibility that the claimant and her children would be targeted and seriously harmed for not supporting ELN cause. And therefore, for all above reasons, the Refugee Protection Division determines that [XXX] is a Convention refugee. Because her husband’s and her children’s claims are based on her claim, their claims must succeed, too. As a result, the Refugee Protection Division determines that [XXX] and [XXX] are also Convention refugees.

[36]     Signed by Shams Alidina, Member of Refugee Protection Division, on 16th March 2020.

[37]     I wish to thank madam, your husband, and your children for coming today. I wish to thank Counsel for coming, and I wish to thank Counsel for providing a lot of documentary evidence. I wish to thank the interpreter for doing a fantastic job.

[38]     The hearing is over.

[39]     Now, madam — sorry, Counsel, I had to [inaudible]

[40]     COUNSEL: [inaudible]

[41]     MEMBER: I say that most of the times to Colombians.

——————-REASONS CONCLUDED——————-

Categories
All Countries Colombia

2020 RLLR 46

Citation: 2020 RLLR 46
Tribunal: Refugee Protection Division
Date of Decision: August 11, 2020
Panel: Zhanna Perhan
Counsel for the Claimant(s): Justo Vega Castro
Country: Colombia
RPD Number: TB9-19730
ATIP Number: A-2021-00655
ATIP Pages: 000111-000114

DECISION

[1]       MEMBER: This is the decision for [XXX], TB9-19730. I have had an opportunity to consider your testimony and examine the evidence before me and I am ready to render my decision orally.

[2]       You claim to be a citizen of Colombia and you are claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I find that you are a person in need of protection as your return to Colombia would subject you personally to a risk to your life for the following reasons.

[4]       The allegations of your claim can be found in your Basis of Claim form in Exhibit 2. In short, you allege the risk to your life at the hands of the criminal organization, in particular, Clan del Golfo or Golf Clan who have threatened to kill you unless you agree to collaborate with their security plan in Colombia through regular extortions.

[5]       Your personal identity as a citizen of Colombia has been established on a balance of probabilities by your testimony and the supporting documents in Exhibit 1, namely, copies of your passport and your national identity card.

[6]       With respect to the Nexus to the Convention, there is insufficient evidence that you were targeted for Convention grounds for race, religion, nationality, political opinion or membership in particular social group so the claim is being examined under Section 97.

[7]       In terms of your general credibility, I have found you to be a credible witness and I therefore accept what you have alleged in your testimony and in your Basis of Claim form. You testified in a straightforward manner about your fears without embellishment. There were no major inconsistencies that went to the core of the claim that were not reasonably explained. You described how the threats from Clan del Golfo began in [XXX] 2019 when you were intercepted by a truck or a van and a motorcycle, threatened and demanded to pay extortions. You did not-, you were later in [XXX] 2019 supplied with instructions on when, where and how to bring the money and you did not comply with the demands, hoping for police protection. You relocated to Bogota to escape the criminals. When you retuned after almost two months, somebody broke into your home at the end of [XXX] 2019.

[8]       You left for Bogota again, lost hope for protection measures and because you had a tourist visa to Canada, you decided to leave Colombia as fast as you reasonably could and you flew to [XXX] 2019. Overall, your testimony was spontaneous including being able to provide details about your professional activities as a cattle farmer, an entrepreneur as well as the details of the threats and seeking protection from the authorities. You filed the denunciation, asked for protection. You turned to the army for additional protection, but you were only given recommendations and nothing else.

[9]       In particular, I noted substantial documentary evidence that you presented, particularly, in Exhibit 6 which corroborates your personal and professional identity as well as the details of the threats and attacks, paperwork and supporting letters confirming your professional activities as a cattle farmer, entrepreneur. Also supporting letters from family members who confirmed you were a victim of extortions and threats. Moreover, there are copies of denunciations made at Attorney General and copies of protection measures and crime reports, however, one of them, Exhibit 5 reports that you were first threatened by Golf Clan in 2013. When I asked you to explain why this information was omitted from your Basis of Claim form, you said, in 2013, it was a closed case. You didn’t lose any money [XXX]. In addition, the perpetrators back in 2013 were never identified as Clan del Golfo. The protection unit that took care of that case said that it was simply a paramilitary or a criminal group. That is why you did not mention it in your Basis of Claim form.

[10]     I find that explanation reasonable and it does not undermine your credibility. I find your testimony was consistent in content and chronology without the documents provided that were central to your claim and I find you are credible and I accept your allegations as identified in your written and oral testimony.

 [11]    I find that you would be subjected to a greater personalized risk compared to the general population in Colombia. Your professional activities as a [XXX] make you more affluent and thus easily targeted by the gangs for extortions. In addition, due to the nature of your professional activities, you’re well known in the community, hence, it made yourself open to public and easy to locate. I find on a balance of probabilities that you have established the personalized risk to your life that goes beyond the generalized risk in Colombia. Moreover, taking into account the past persecution at the hands of Clan del Golfo, I find you have established strong likelihood of harm in the future.

[12]     To just briefly comment on State protection and internal flight alternative. I find for two reasons that you have rebutted the presumptions of State protection and demonstrated there is no viable internal flight alternative. Firstly, you have provided credible evidence that you relocated, and you went into hiding in Bogota. You provided evidence that you approached the authorities for assistance and you applied for protective measures, but no adequate protection was provided. Due to the threats from Clan del Golfo that continued in spite of the complaints and recommendations from the police, you decided it was unsafe to remain in Colombia especially because no protection was forthcoming.

[13]     Secondly, I have reviewed the country condition evidence as reflected in National Documentation Package. Items 1.2 and 1.7 as well as the documents provided by the counsel on your behalf. Specifically, in Exhibit 5. The documents illustrate that while Colombia has made efforts to improve State protection, its ability to do so is severely limited due to a lack of presence and capacity in many areas of the country that have been recently vacated by FARC as well as significant issues of corruption and complicity by local offi-, officials. National Documentation Package, Item 7.2 reports that Clan del Golfo has succeeded in infiltrating divisions of the armed forces and the justice system. This narco-parla-, paramilitary group has infiltrated official institutions, forged alliances with public servants including armed forces, police, Attorney General and local governments officials so it would be the protection in my opinion would not be forthcoming in your particular circumstances. The preponderance of documentary evidence is clear and convincing in that.

[14]     In addition, I find you would be unable to safely relocate to any other parts of Colombia and that you fa-, face risk throughout that country at the hands of Golf Clan. Peace and Reconciliation Foundation reports in Item 7.2 in NDP and Exhibit 5 news articles provided by the counsel in particular, Colombia reports, news Latin America and Revista Semana ail confirm that Clan-, Golf Clan or Clan del Golfo also known as Urabenos or Clan Usuga or Autodefensas Gaitanistas de Colombia or AGC. They’re currently the largest criminal gang operating in Colombia. It had grown to include more than 8000 members, including informants. It has also become the largest and most powerful self American narco poster. Clan del Golfo has a presence in 279 municipalities in 27 departments, that’s NDP Item 7.2.

[15]     Clan del Golfo has made alliances with smaller groups and gangs throughout Colombia. They have a national reach and an ability to operate across the country. According to Human Rights Watch, there have been documented cases of persons being tracked down by the Cla-, Golf Clan after fleeing to other parts of the country and that’s in Item 7.15 on page 20. I find that Clan del Golfo has taken sustained efforts to locate you and having determined on a balance of probabilities that you are a credible witness, I am satisfied that this group has both the means and the motivation to locate you anywhere you go in Colombia. Therefore, on the evidence before me and based on your particular circumstances, I find that on a balance of probabilities you face risk to your life by the Clan del Golfo anywhere in Colombia and there is no viable internal flight alternative for you.

[16]     So, for all these reasons above, I find that you face risk to your life if you return to Colombia and accordingly I find you to be a persan in need of protection pursuant to Section 97(1)b of Immigration and Refugee Protection Act. Therefore, I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2020 RLLR 27

Citation: 2020 RLLR 27
Tribunal: Refugee Protection Division
Date of Decision: October 23, 2020
Panel: Bjorn Einarson
Counsel for the Claimant(s): Leonardo Jose Di Leone Velasquez
Country: Colombia
RPD Number: VB8-06573
Associated RPD Number(s): VB8-06586, VB8-06592, VB8-06593
ATIP Number: A-2021-00540
ATIP Pages: 000157-0000165

REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claims of [XXX] (the “principal claimant”), [XXX] (“the associate claimant”, his wife), [XXX] “the second associate claimant, their daughter), and [XXX] (“the minor claimant”, their son). The minor claimant claims to be a citizen of Colombia and the United States of America, the second associate claimant a citizen of Venezuela and Colombia, the associate claimant a citizen of Venezuela, and the principal claimant a citizen of Colombia. All claimants are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       The tribunal designated [XXX] as representative for the minor children included in the claim, being [XXX].

ALLEGATIONS

[3]       The totality of the claim is contained the claimants’ Basis of Claim forms and corresponding narratives.2

[4]       The risk to the claimants began in 2014. After living temporarily in the United States, the family moved to Colombia in 2012. In 2014, when political tensions in Venezuela were rising, the associate claimant traveled to her home country for three months to engage in political activism against the Maduro regime on behalf of the VOLUNTAD POPULAR political party. While in Venezuela she engaged in street protests and served as organizer for her political party in her local municipality of Lagunillas. She was involved in numerous efforts to encourage people to vote and to protest against the Maduro regime. After three months of these political activities, she was beaten by state agents and was visited at her home by state agents, which caused her to return to Colombia to live with her family. Because the agent of harm in this case was the Maduro regime, and because the agent of harm was motivated by the associate claimant’s political activity, the associate claimant sought to leave Venezuela.

[5]       Approximately four years passed, and the associate claimant continued her support to her political party remotely from Colombia. In [XXX] 2018, the principal claimant began to receive a series of approximately fifteen threat-related phone calls from the EJÉRCITO DE LIBERACIÔN NACIONAL (ELN), which has close operational ties with the Maduro regime in Venezuela. The principal claimant received the calls from the ELN between [XXX] 2018 and the family’s departure to Canada on [XXX], 2018. At first the ELN appeared motivated by extortion, demanding payment, but as it became clear that the principal claimant did not have much money to extort, the nature of their threats shifted towards issuing death threats against the entire family for the associate claimant’s political activism against their ally, the Maduro regime.

[6]       Because the associate claimant is a political opponent of both the Maduro regime in Venezuela and its operational proxies in Colombia, the ELN, the associate claimant fears she will be harmed anywhere she resides in either country. Although the principal claimant and second associate claimant are not themselves political activists, they fully support the political activities of the associate claimant. Because of their familial association with the associate claimant, and their support of her political activism, the other claimants claim they would be regarded by the ELN or the Maduro regime as having the same political opinions as the associate claimant.

[7]       With respect to the minor claimant, no claim against the United States of America is being made.

DECISION

[8]       I find that, with the exception of the minor claimant, all claimants are refugees, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should they return to Colombia or Venezuela, on account of their political opinion or imputed political opinion.

[9]       The minor claimant has not advanced any claim against the United States of America and has not presented any evidence about the risks he may face in the United States of America. Therefore, I cannot find that he faces a serious possibility of persecution, or on a balance of probabilities, a risk of s. 97 harm in the United States of America. Accordingly, his claims for protection are rejected.

Nature of the harm

[10]     I have examined this claim under section 96 of the IRPA, as I conclude that the risk the claimants – apart from the minor claimant – described constitutes persecution based on at least one of the grounds prescribed in section 96, specifically their political opinion or their imputed political opinion.

Identity

[11]     I find that the principal claimant’s, the second associate claimant’s, and the minor claimant’s identities as nationals of Colombia, and the associate claimant’ s and the second associate claimant’s identities nationals of Venezuela, and the minor claimant’s identity as a national of the United States of America is established by the documents provided, namely their passports.3

Credibility

[12]     When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.4 However this presumption does not apply to inferences (conclusions drawn from facts) or speculation (for which there is no evidentiary basis).

[13]     There is no evidence before me to rebut this presumption.

[14]     I find that the associate claimant’s profile as a dissident against the Maduro regime to be credible in light her testimony and the documentary evidence before me, namely an official letter and registration card certifying her membership and participation in the VOLUNTAD POPULAR political party.5

[15]     By establishing this credible profile with her testimony and documentary evidence, the profile of the principal and second associate claimant are likewise supported along with their own credible testimony. Through credible testimony from the principal claimant and the second associate claimant to the effect that they fully support the associate claimant in her political activism, I find that these claimants have credibly established their profile as persons who would be perceived as having imputed political opinions similar to the associate claimant.

Objective basis

[16]     Given that there are no serious credibility issues with respect to the allegations, coupled with the documentary evidence set out below, I find that, with the exception of the minor claimant, the claimants have established a prospective risk of being subjected to the following harm: namely that they would face judicial or extra-judicial violence on the part of the Maduro regime or its proxies within Venezuela or violence on the part of the ELN in Colombia. As highlighted in the documentary evidence, this extra-judicial violence amounts to persecution.

[17]     This risk is corroborated by the following documents in the National Documentation Package (NDP).6

Are opponents of the Madura regime persecuted in Venezuela?

[18]     While the documentary evidence specifically focused on the VOLUNTAD POPULAR in the NDP is dated to 2014, it nevertheless establishes on a balance of probabilities that the VOLUNTAD POPULAR is viewed by the Maduro regime as its opponent and that even as early as 2014 they received persecutory treatment by the Maduro regime in the form of extra-judicial raids, arbitrary detention, political manipulation of the judicial system, and other forms of political intimation.7 The state of political conflict has significantly intensified since 2014 when that document was published, and even more so since 2018 and 2019 when the Maduro regime came into intensified conflict with the competing regime of Juan Guaido, president of the National Assembly. In this heightened environment of conflict, opponents of the regime and those perceived to be opponents of the regime are subjected to “unlawful or arbitrary killings, including extrajudicial killings by security forces of the [… ] Maduro regime, including colectivos (regime-sponsored armed groups); forced disappearances; torture by security forces; arbitrary detention by security forces; harsh and life-threatening prison conditions; political prisoners; unlawful interference with privacy; and lack of judicial independence.”8 US State Department reporting notes that in the current climate, the Maduro regime uses the “judiciary to intimidate and prosecute individuals critical of regime policies or actions.”9

[19]     The US State Department also notes that in “many cases, particularly regarding the political opposition, regime-aligned authorities searched homes without judicial or other appropriate authorization, seized property without due process, or interfered in personal communications. FAES and other security forces regularly conducted indiscriminate household raids. Media reports documented raids by security forces on the homes of at least 10 opposition party politicians during the year.”10

[20]     These actions extend also to perceived opponents: “[r]egime-aligned intelligence agencies, which lacked independent oversight, conducted surveillance for political purposes. Courts relied on evidence obtained from anonymous patriotas cooperantes (cooperating patriots) to harass perceived opponents [emphasis added] of the[…] regime, and senior[… ] Maduro regime-aligned officials used personal information gathered by patriotas cooperantes to intimidate regime critics and human rights defenders.”11

Does the ELN act as a proxy of the Madura regime in Colombia?

[21]     Recent country countries reported in Exhibit 6 demonstrate a clear operational connection between the Maduro regime and the ELN. On July 5, 2019, the Washington Post reported that some analysts are now describing the ELN as a “Colombo-Venezuelan rebel army” given the strong operational links between the two. Reuters, citing Colombian military intelligence sources, reported June 5, 2019 that 45% of the ELN’s fighters – including its commanders – are hiding in neighboring Venezuela and receiving protection from the Maduro regime. On September 12, 2019, the Washington Post reported on Venezuelan intelligence leaks to a Colombia newspaper Semana that describe “Venezuela’ s relationship to Colombian “red groups” [like the ELN] as something close to Iran’s relationship with Hezbollah.” The reporting states that “The documents leaked to Semana imply Venezuela is mainstreaming ELN and the resurgent FARC into its intelligence systems, relying on the groups to help identify high-value military targets inside Colombia.” Recent reporting in January 2020 from InSight Crime highlights that while the Maduro regime does not officially recognize the ELN as a formal ally, the two entities share a significant covert operational relationship.12

[22]     Given this considerations, I find that there is sufficient country condition reporting to conclude that, on a balance of probabilities, the ELN is sufficiently operationally enmeshed with the Maduro regime that an intelligence-sharing relationship exists such that the disclosure of the associate and principal claimant’s identities and activities to the ELN could be facilitated. In this sense, the claimants’ allegation of fear regarding the ELN targeting the family in Colombia because of the associate claimant’s activities and political profile in Venezuela is well-founded in objective country conditions.

[23]     Considering the totality of the allegations and the country conditions of both Venezuela and Colombia, I find that there is an objective basis for the allegations the associate claimant faces persecution in both countries for her political activities and associations in Venezuela. I find further that the principal claimant and the second associate claimant, because of their relationship to the associate claimant, would face a serious possibility of persecution in both countries because of imputed political opinions; they would be perceived by the Maduro regime or the ELN as liable for the same political offences as the associate claimant and thus face a serious possibility of persecution.

State protection

[24]     Whereas – insofar as Venezuela is concerned – the agent of persecution is the state, I find that adequate state protection would not be reasonably forthcoming in this particular case.

[25]     Insofar as Colombia is concerned, and the ELN is the agent of persecution, I find that as per reporting in NDP 7.23, the ELN has the capacity to monitor targets across Colombia.13 That the ELN has the capacity to conduct surveillance operations across Colombia leads me to find that there is a serious possibility they could mount kinetic operations if sufficiently motivated. The same reporting notes that state protection against this threat actor is “very limited” and the “measures in place do not yet meet the needs on the ground and are not adapted to living conditions in the areas where most violence has been reported.”14 As such, I find that adequate state protection in Columbia would likewise not be reasonably forthcoming.

Internal flight alternative

[26]     I have considered whether a viable internal flight alternative exists for the claimants.

[27]     With respect to Venezuela, on the evidence before me and given that the agent of persecution is the state, and the state has effective control over the entire country, I find that there is a serious possibility of persecution throughout Venezuela.

[28]     With respect to Colombia, given the above considerations regarding the capacity of the ELN to monitor its targets anywhere in Colombia, I find that there is a serious possibility of persecution throughout Colombia.

CONCLUSION

[29]     In light of the preceding, I conclude that the principal claimant, the associate claimant, and the second associate claimants are refugees, pursuant to section 96 of the IRPA. Accordingly, I accept their claims.

[30]     The minor claimant did not establish that he faces a serious possibility of persecution, or that, on a balance of probabilities, he faces s. 97 harm in the United States. His claims are rejected on that basis.

(signed)           Bjorn Einarson

October 23, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Exhibit 2.1, 2.2, 2.3, 2.4.
3 Exhibit 1.
4 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.).
5 Exhibit 4.
6 Exhibit 3.
7 Exhibit 3, National Documentation Package, Venezuela, 30 September 2020, tab 4.11: The political party Voluntad Popular, its structure, as well as its main positions and officials; the conditions to become a party member, including a description of the membership card; the treatment reserved for members of this political party… Immigration and Refugee Board of Canada. 24 September 2014. VEN104949.FE.
8 Exhibit 3, National Documentation Package, Venezuela, 30 September 2020, tab 2.1: Venezuela. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. p. 2.
9 Exhibit 3, National Documentation Package, Venezuela, 30 September 2020, tab 2.1: Venezuela. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. p.11.
10 Exhibit 3, National Documentation Package, Venezuela, 30 September 2020, tab 2.1: Venezuela. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. p. 13.
11 Exhibit 3, National Documentation Package, Venezuela, 30 September 2020, tab 2.1: Venezuela. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. p. 18.
12 Exhibit 6.
13 Exhibit 3, National Documentation Package, Colombia, 12 June 2020, tab 7.23: The National Liberation Army (Ejército de Liberación Nacional – ELN), including number of combatants and areas of operation; activities, including ability to track victims; state response and protection available to victims (2016-April 2018). Immigration and Refugee Board of Canada. 23 April 2018. COL106085.E. p. 8.
14 Exhibit 3, National Documentation Package, Colombia, 12 June 2020, tab 7.23: The National Liberation Army (Ejército de Liberación Nacional – ELN), including number of combatants and areas of operation; activities, including ability to track victims; state response and protection available to victims (2016-April 2018). Immigration and Refugee Board of Canada. 23 April 2018. COL106085.E .. p. 10.