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.

Categories
All Countries Colombia

2020 RLLR 23

Citation: 2020 RLLR 23
Tribunal: Refugee Protection Division
Date of Decision: January 9, 2020
Panel: K. Bugby
Counsel for the Claimant(s): Keith MacMillan
Country: Colombia
RPD Number: TB9-12310
ATIP Number: A-2021-00540
ATIP Pages: 000138-0000142


DECISION

[1]       MEMBER: So this is the decision for the claimant [XXX], the claimant seeks refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.

[2]       I have considered the oral testimony and the other evidence in the case and I am ready to render a decision orally.

[3]       I find that the claimant is a Convention refugee as defined under Section 96 of the act and I accept the claim.

[4]       The allegations are set out in the basis of claim form, in summary the claimant has been targeted by FARC dissidents as a result of his work as a government employee responsible for the [XXX], [XXX] and [XXX].

[5]       The nexus is political opinion and or imputed political opinion and it is expressed though the claimant’s employment.

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

[7]       Based on the claimant’s credible evidence I accept the following facts and find that the claimant has established on a balance of probabilities a well founded fear of persecution. The claimant was employed by the state and was responsible for [XXX], efforts subsequent to the signing of the 2016 FARC peace accord.

[8]       The claimant’s duties included [XXX], [XXX] and [XXX] as obtained from demobilized FARC members.

[9]       In [XXX] 2018 the claimant was approached and threatened by armed men demanding the names of ex combatants providing his department with [XXX] information. The men stated that they were acting on behalf of the leader of the FARC dissidents and threatened to kill the claimant unless he provided the information demanded.

[10]     Following two subsequent contacts one in which the lives of the claimant’s family were threatened, the claimant fled the area.

[11]     In [XXX] 2018 the claimant returned to Florencia and was attacked and threatened at gun point in front of his family. Following the advice of the authorities the claimant provided his attackers with fake information saved to a [XXX].

[12]     Shortly after there were reports that the military had bombed the base camp of the FARC dissidents killing their leader and rumors began to circulate that the military learned of the location from a [XXX] and that reprisals would follow.

[13]     Fearing that FARC dissidents would believe the claimant to be responsible for providing this information to the military, the claimant made the decision to flee the country and left Columbia two weeks later.

[14]     Additionally the claimant is a gay man adding to his fear of the group as they are noted for targeting members of the LGBTQ population.

[15]     The objective country documents are consistent with the claimant’s evidence. At Tab 1.2 the reports indicate that following the demobilization of the FARC in 2017 dissidents formed groups throughout Columbia and since a number of demobilized forces have rearmed having lost faith in the peace process.

[16]     Further the maps contained in this report show the presence of FARC dissidents throughout Columbia.

[17]     At tab 7.22 the reports indicate that many FARC dissident groups have formed alliances with both the ELN and the AGC further extending their reach.

[18]     At Tab 1.7 the NDP speaks to the risk profiles of social leaders and human rights activists and at Tab 2.9 indicates a constant level of violence against social leaders and human rights activists perpetrated by the Bacrim.

[19]     While the claimant did not self identify as a social leader or activist his employment reflects at the very least activities aimed at social changes and support and in support of demobilization and the peace accord.

[20]     Lastly at Tab 6.3 the reports indicate societal abuse and discrimination against the LGBT community and notes that criminal groups target homosexual individuals, though the claimant’s sexual orientation may not be sufficient in itself to establish his claim there are reports that support the claimant’s position that criminal groups target homosexuals thus heightening the claimants level of risk and level of fear.

[21]     Based on the forgoing I find on a balance of probabilities that the claimant has established a well founded fear and serious possibility of persecution in Columbia.

[22]     The claimant reported each of the threats to government authorities who undertook to investigate. In the end all that was offered was advise to provide false information to the FARC, advise which the claimant followed in which he believes placed him at greater risk, no other protective measures were put in place.

[23]     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.

[24]     At Tab 7.23 the NDP indicates that protection measures for victims are very limited and the measures in place do not meet the needs on the ground.

[25]     Based on the claimant’s personal circumstances and the objective country documentation 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.

[26]     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 this claimant, the claimant was threatened by FARC dissidents demanding he provide information about ex combatants who were collaborating with the government regarding land mine location and removal.

[27]     Following the advice of the authorities the claimant provided false information and is of the opinion that the risk intensified.

[28]     In essence the FARC dissidents were seeking the person who assisted the military to locate and bomb the camp and the claimant fears he would be suspected given his past interactions with the group.

[29]     While the claimant left the area and was not located by the FARC dissidents on two occasions I accept as reasonable that the motivation of the group to locate the claimant changed after the bombing of the camp.

[30]     Further the parents, the claimant’s parents relocated after the claimant fled Columbia due to the presence of individuals in the area of their home who have, who it was suspected were looking for the claimant. The claimant fears that he would be at risk throughout Columbia.

[31]     The country conditions are consistent with the claimant’ s position. At Tab 1.2 the reports indicate that following the demobilization of the FARC in 2017 dissidents formed groups throughout Columbia and since a number of demobilized forces have rearmed.

[32]     Further the maps contained in this report show the presence of FARC dissidents across Columbia. At Tab 1.7 the country reports indicate that given the reported ability of guerilla groups to operate country wide a viable IFA may not be available to individuals at risk of being targeted by such actors.

[33]     It is particularly important to note the operational capacity of the groups to carry out attacks in all parts of Columbia irrespective of territorial control.

[34]     Further the country reports referred as societal abuse and discrimination against LGBTQ individuals and I also note that LGBTQ individuals are targeted by these criminal groups.

[35]     The impact of this is twofold the claimant believes and I accept as reasonable that the fact that he is a gay male would provide additional motivation for the FARC to track him and the claimant’ s sexual orientation would render him more visible if he were to attempt to relocate in Columbia.

[36]     Having given consideration to the claimant’s personal circumstances 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.

[37]     In conclusion based on the totality of the evidence I find that the claimant is a Convention refugee and I accept his claim and we are concluded.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2019 RLLR 127

Citation: 2019 RLLR 127
Tribunal: Refugee Protection Division
Date of Decision: August 26, 2019
Panel: K. Fainbloom
Counsel for the Claimant(s): Terry S Guerriero
Country: Colombia
RPD Number: TB8-14474
Associated RPD Number(s): TB8-14483, TB8-14467
ATIP Number: A-2021-00256
ATIP Pages: 000058-000061


DECISION

[1]       MEMBER: These are the reasons in the decision, the positive decision for the refugee claims of [XXX] his spouse [XXX] and [XXX] mother [XXX].

[2]       The citizens are, the claimant’s are citizens of Columbia they claim refugee protection pursuant Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       The claimant’s referred jointly pursuant to Rule 55. The details of the claimant’s allegations are set in their basis of claim form narratives and I’m going to briefly summarize that narrative.

[4]       [XXX] the principal claimant and his partner [XXX] are a homosexual couple, active in the LGBT community in Columbia. They owned a fast food restaurant and lived above the business.

[5]       On December 15th 2017 the business was targeted by homophobic graffiti. They went to the police, the policeman’s responses this is what happens when you’re a fagot. On May 15th 2018 the principal claimant was accosted by a man who put a gun to his waist and told him that he did not want to see the principal claimant or his partner again or he would kill them. He said they knew where he lived. The principal claimant made a denouncement to the attorney general’s office on May 21st 2018.

[6]       On June the 5th 2018 the principal claimant and his partner were accosted by the same man. The principal claimant and his partner decided they would leave Columbia with their mother. They left on [XXX] 2018 and they are afraid to return to Columbia.

[7]       Having considered the totality of the evidence before me I find the claimant’s to be Convention refugees pursuant to Section 96 of IRPA.

[8]       The nexus or connection to the definition for the two male claimants is their sexual orientation. The connection for the female claimant is her connection to her son, her connection to this family. So because of that family connection she’s connected to the definition.

[9]       With respect to their identities as nationals of Columbia this is established by the documents on file which include copies of their passports.

[10]     As to the credibility of the claimant’s allegations I have no concerns. At First they were provide their evidence in what I appeared to be a spontaneous, detailed fashion. The evidence they provided today in oral testimony was consistent with what’s been provided in written form, their allegations are consistent with the situation for sexual minorities n Columbia and finally they’ve done an admiral job of corroborating their allegations.

[11]     I’ll refer to some of the documents in Exhibit 4 these would include the two denunciations made by the principal claimant on May 21st and June the 8th. There’s provided proof of their involvement with the foundation, for both male claimants also a reference in that letter to their receiving death threats.

[12]     There are a number of corroborative statements made by siblings of the principal claimant as well as the employee hired by the claimant’s to run the restaurant. There’s a certificate of their involvement in the LGBT community in Canada and there’s also a photograph of the restaurant and the graffiti that was put on the restaurant in December 2017.

[13]     So in consideration of all those factors I find on the balance of probabilities their allegations to be true, Given that I accept their allegations I find that there’s sufficient objective evidence for me to find that they’re objective, positive reasons why they should fear returning to Columbia.

[14]     The documents note that in that the mistreatment of sexual minorities in Columbia has actually worsened significantly in recent years. The documents contained in Exhibit 3 including the Item at 6.1 and 6.5 refer to LGBTI person’s being subjected to acts of violence aimed at eliminating their sexual orientation and that they face sexual violence, forced displacement as well as homicide.

[15]     The document at 6.5 notes that reports of violence and discrimination against Columbia’s LGBT community have been steadily increasing in recent years and notes that discrimination is prevalent throughout Columbia and society even prevalent in high level Columbian politicians.

[16]     The documents still has been particularly extreme in Caribbean coastal regions where LGBTU rights, defenders have received death threats in which they have been declared military targets by various armed groups. At in the document provided by counsel Exhibit 4 the last Item at Page 49 makes the following statement; Columbia’s made no progress in stopping killing of lesbians, gay, bisexual and transgender people as new research showed more than one hundred were killed last year despite the overall fall in the murder rate.

[17]     So in consideration of those conditions I find that there’s an objective basis to their fear of returning to Columbia.

[18]     I’ve considered the issue of whether adequate state protection would be provided, I find in this situation it is not been provided and would not be reasonably expected to be provided should they return.

[19]     Firstly I would note the country conditions as just described the government is has not been effectively providing protection to sexual minorities that are subject to threats and violence. I would note that while the Columbian state has been putting some effort into improving state protection particularly since the peace accord with FARC the state’s ability to actually provide protection is highly limited. This is partly due to lack of presence and capacity; it’s partly due to issues of corruption as there’s information of corruption and complicity by many local, regional authorities.

[20]     The documents also note that paramilitary groups are known to infiltrate official institutions and forge alliances with public servants. Notwithstanding these the country conditions as I’ve just described the subjective experience of this couple is that they have gone to the authorities the first time they went they were insulted, when they called the authorities for assistance there was no answer and times they went to make denunciations to the attorney general’s office they were not given adequate protection.

[21]     So I find that adequate protection would not be available to these claimants. I find the issue I’ve considered is whether there might be a viable internal flight alternative available. I find that there would not be. I think the [XXX] the principal claimant’s opinion with respect to the relocation within Columbia not being feasible is reasonable and supported by the documents before me.

[22]     The more you get into rural areas of smaller cities you’re dealing with more (inaudible) prevalence of violence and threats against sexual minorities.

[23]     So I find that this couple would suffer persecution, the three claimants’ would suffer persecution anywhere in the country and that therefore there is no viable internal flight alternative available to the claimants.

[24]     In consideration of the totality of the evidence before me and the factors I’ve just reviewed I find the claimant’s to be Convention refugees. The division therefore accepts your claims.

[25]     CLAIMANT: Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2019 RLLR 67

Citation: 2019 RLLR 67
Tribunal: Refugee Protection Division
Date of Decision: October 7, 2019
Panel: K. Fainbloom
Counsel for the claimant(s): Dariusz Wroblewski
Country: Colombia
RPD Number: TB8-15262
Associated RPD Number(s): TB8-15317, TB8-15261
ATIP Number: A-2020-01274
ATIP Pages: 000189-000191


DECISION

[1]       MEMBER: So, these are the reasons for the positive determination of the refugee claims of [XXX], her husband [XXX] and their daughters [XXX].

[2]       The claimants are citizens of Colombia and they claim refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       Their allegations are contained in the narrative of the principal claimant’s Basis of Claim form. I’m going to briefly summary those allegations.

[4]       The, the principal claimant is a [XXX]. She describes how she and her family have been affected by the civil war in Colombia. Her brother was killed in [XXX] of 2003. She met the other adult claimant and they were married in 2004. Their daughter was born in 2008. She graduated in 2011 and began to work and at the same time, she began to be involved in community work. Assisting people who have been displaced by the civil war.

[5]       So on weekends, she would work with members of the community action boards, assisting people displaced by the conflict who had come to Medellin. All was going well until her, her work came to the attention of the AGC. And on [XXX], 2017 she received a note from this organization at her home, threatening her and telling her that she must quit her work or she would pay the consequences.

[6]       After, she reported this to the appropriate authorities including her employer. On [XXX], she was threatened by a man on a, on a motorcycle. And fearing further problems, they decided to leave Medellin and they relocated to Bogotá.

[7]       However, on [XXX] in Bogotá she was again a, a, attacked and followed. So they again relocated. The family now relocated to Cack-, Cúcuta. I have trouble with that one. However, there again there were problems. On [XXX], the principal claimant’s husband received a telephone call from someone searching, searching for them. And indicating that they knew where they were.

[8]       So, fearing for the lives the, the claimants fled Colombia and made their way to Canada and made refugee claims upon arriving.

[9]       Having considered the totality of the evidence before me, I find the claimants to be Convention refugees. find this is due to their political, an imput-, an imputed political opinion. On the part of the agents of persecution in terms of the volunteer work the principal claimant was doing. As noted in the threatening letter received, her actions are seen as a, a political view of the, the AGC’s lost.

[10]     With respect to the claimants’ identities as nationals of Colombia, it’s established by the documents on file which include copies of their passports.

[11]     As to the credibility of the allegations, I have no concerns. Firstly, the claimants provided their evidence in a credible detailed and what appeared to be spontaneous fashion.

[12]     The responses given in an oral testimony were con-, consistent with what’s been stated in written form. The claimants were appropriately emotional in describing some of the difficulties they faced in Colombia. Their allegations are consistent with country condition reports as to what might happen in Colombia if you come to the attention of the wrong people.

[13]     And I would note the presence of a number of fairly strong corroborative documents. This includes letters corroborating the principal claimant’s volunteer work. The letter from the lawyer who assisted in her work and who was aware of the threatening calls she had received. There’s a copy of the threatening letter itself. There are a number of supportive letters including from the principal claimant’s sister who provided her and her family refuge in, in [XXX] of 2018. There’s also a letter from their friend who provided the shelter for this family while they were in the other city. There’s a letter from, there’s a letter from the retired police officer who describes the assistance and suggestions he made to the family.

[14]     There are some references in the letters to searches that are ongoing in Colombia for people looking for the principal claimant. And there’s also documents indicating how the principal claimant suffered from [XXX] as a result of, of having these threats uttered against her. Documents showing the, the, the counselling she received in Colombia and the counselling she’s receiving in, in Canada as well. And finally, there are the police reports.

[15]     And so, in consideration of these documents, in consideration of the quality of the testimony, I find on the balance of probabilities the allegations to be true.

[16]     Given that I accept the allegations to be true, the co-, country condition documents before me indicate there’s an objective basis to their, claimants’ fear of returning to Colombia.

[17]     The documents note the existence of threats, of violence and incidents of violence against human right defenders, social leaders, educators and, and so on. People such as the claimant who are providing assistance to those who have been devastated by the civil conflict. According to a recent U.N. report, there were 163 verified killings of social leaders and human rights defenders since November 2016.

[18]     So, in light of the country condition documentation, I find there’s an objective basis for their fear of returning. Given that they’ve approached the author-, the appropriate authorities on a number of occasions and not received adequate protection, I find the claimants have rebutted the presumption of adequate state protection. And I also see that as a result of their movements in various parts of the countries and the fact that each time they moved, they were still targeted and harassed.

[19]     There is no viable internal flight alternative available to the claimants. And I find that if they relocated to any part of Colombia they would suffer a serious possibility of persecution.

[20]     So, for all these reasons, I conclude the claimants are Convention refugees. And I therefore accept their claims.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2019 RLLR 66

Citation: 2019 RLLR 66
Tribunal: Refugee Protection Division
Date of Decision: August 26, 2019
Panel: K. Fainbloom
Counsel for the claimant(s): Terry S Guerriero
Country: Colombia
RPD Number: TB8-14474
Associated RPD Number(s): TB8-14483, TB8-14467
ATIP Number: A-2020-01274
ATIP Pages: 000185-000188


DECISION

[1]       MEMBER: These are the reasons in the decision, the positive decision for the refugee claims of [XXX], his spouse [XXX] and [XXX]’s mother [XXX].

[2]       The citizens are, the claimant’s are citizens of Columbia they claim refugee protection pursuant Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       The claimant’s referred jointly pursuant to Rule 55. The details of the claimant’s allegations are set in their basis of claim form narratives and I’m going to briefly summarize that narrative.

[4]        [XXX] the principal claimant and his partner [XXX] are a homosexual couple, active in the LGBT community in Columbia. They owned a [XXX] and lived above the business.

[5]       On [XXX] 2017 the business was targeted by homophobic graffiti. They went to the police, the policeman’s responses this is what happens when you’re a fagot. On [XXX] 2018 the principal claimant was accosted by a man who put a gun to his waist and told him that he did not want to see the principal claimant or his partner again or he would kill them. He said they knew where he lived. The principal claimant made a denouncement to the attorney general’s office on [XXX] 2018.

[6]       On [XXX] 2018 the principal claimant and his partner were accosted by the same man. The principal claimant and his partner decided they would leave Columbia with their mother. They left on [XXX] 2018 and they are afraid to return to Columbia.

[7]       Having considered the totality of the evidence before me I find the claimant’s to be Convention refugees pursuant to Section 96 of IRPA.

[8]       The nexus or connection to the definition for the two male claimants is their sexual orientation. The connection for the female claimant is her connection to her son, her connection to this family. So because of that family connection she’s connected to the definition.

[9]       With respect to their identities as nationals of Columbia this is established by the documents on file which include copies of their passports.

[10]     As to the credibility of the claimant’s allegations I have no concerns. At First they were provide their evidence in what I appeared to be a spontaneous, detailed fashion. The evidence they provided today in oral testimony was consistent with what’s been provided in written form, their allegations are consistent with the situation for sexual minorities n Columbia and finally they’ve done an admiral job of corroborating their allegations.

[11]     I’ll refer to some of the documents in Exhibit 4 these would include the two denunciations made by the principal claimant on [XXX] and [XXX]. There’s provided proof of their involvement with the foundation, for both male claimants also a reference in that letter to their receiving death threats. There are a number of corroborative statements made by siblings of the principal claimant as well as the employee hired by the claimant’s to run the [XXX]. There’s a certificate of their involvement in the LGBT community in Canada and there’s also a photograph of the [XXX] and the graffiti that was put on the [XXX] in [XXX] 2017.

[12]     So in consideration of all those factors I find on the balance of probabilities their allegations to be true, given that I accept their allegations I find that there’s sufficient objective evidence for me to find that they’re objective, positive reasons why they should fear returning to Columbia.

[13]     The documents note that in that the mistreatment of sexual minorities in Columbia has actually worsened significantly in recent years. The documents contained in Exhibit 3 including the Item at 6.1 and 6.5 refer to LGBTI person’s being subjected to acts of violence aimed at eliminating their sexual orientation and that they face sexual violence, forced displacement as well as homicide.

[14]     The document at 6.5 notes that reports of violence and discrimination against Columbia’s LGBT community have been steadily increasing in recent years and notes that discrimination is prevalent throughout Columbia and society even prevalent in high level Columbian politicians.

[15]     The documents still has been particularly extreme in Caribbean coastal regions where LGBTU rights, defenders have received death threats in which they have been declared military targets by various armed groups. At in the document provided by counsel Exhibit 4 the last Item at Page 49 makes the following statement; Columbia’s made no progress in stopping killing of lesbians, gay, bisexual and transgender people as new research showed more than one hundred were killed last year despite the overall fall in the murder rate.

[16]     So in consideration of those conditions I find that there’s an objective basis to their fear of returning to Columbia.

[17]     I’ve considered the issue of whether adequate state protection would be provided, I find in this situation it is not been provided and would not be reasonably expected to be provided should they return.

[18]     Firstly I would note the country conditions as just described the government is has not been effectively providing protection to sexual minorities that are subject to threats and violence. I would note that while the Columbian state has been putting some effort into improving state protection particularly since the peace accord with FARC the state’s ability to actually provide protection is highly limited. This is partly due to lack of presence and capacity; it’s partly due to issues of corruption as there’s information of corruption and complicity by many local, regional authorities.

[19]     The documents also note that paramilitary groups are known to infiltrate official institutions and forge alliances with public servants. Notwithstanding these the country conditions as I’ve just described the subjective experience of this couple is that they have gone to the authorities the first time they went they were insulted, when they called the authorities for assistance there was no answer and times they went to make denunciations to the attorney general’s office they were not given adequate protection.

[20]     So I find that adequate protection would not be available to these claimants. I find the issue I’ve considered is whether there might be a viable internal flight alternative available. I find that there would not be. I think the [XXX] the principal claimant’s opinion with respect to the relocation within Columbia not being feasible is reasonable and supported by the documents before me.

[21]     The more you get into rural areas of smaller cities you’re dealing with more (inaudible) prevalence of violence and threats against sexual minorities.

[22]     So I find that this couple would suffer persecution, the three claimants’ would suffer persecution anywhere in the country and that therefore there is no viable internal flight alternative available to the claimants.

[23]     In consideration of the totality of the evidence before me and the factors I’ve just reviewed I find the claimant’s to be Convention refugees. The division therefore accepts your claims.

[24]     CLAIMANT: Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2019 RLLR 62

Citation: 2019 RLLR 62
Tribunal: Refugee Protection Division
Date of Decision: October 29, 2019
Panel: David D’Intino
Counsel for the claimant(s): Michael Brodzky
Country: Colombia
RPD Number: TB8-10382
Associated RPD Number(s): TB8-10409, TB8-10410
ATIP Number: A-2020-01274
ATIP Pages: 000156-000166


REASONS FOR DECISION

[1]       [XXX] (the principal claimant), her daughter [XXX] and her son [XXX] (the minor claimants), are citizens of Colombia and claim refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The claimants’ allegations are fully set out in the principal claimant’s basis of claim (BOC) form2. To summarize, the principal claimant alleges a serious possibility of persecution on a Convention ground and a risk to life or of cruel and unusual punishment or treatment in Colombia by her ex-partner [XXX].

DESIGNATED REPRESENTATIVE

[3]       The principal claimant was appointed as the Designated Representative for her minor children. She provided a written consent letter3 from her ex-spouse to take the children to Canada.

CHAIRPERSON’S GUIDELINES

[4]       In assessing the evidence of the principal claimant, I have considered the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.4

DETERMINATION

[5]       The principal claimant is a Convention refugee, as she has demonstrated a serious possibility of persecution on a Convention ground, as a member of a particular social group – women fearing gender-related persecution.

[6]       The minor claimants are also Convention refugees, as they have demonstrated a serious possibility of persecution on Convention ground, as members of a particular social group – family members of the principal claimant.

ANALYSIS

Credibility

[7]       The principal claimant was a credible witness. Her testimony was consistent with the evidence in her narrative and she provided documentation which was corroborative of certain aspects of her claim. Her evidence was free from material contradictions or omissions and I find that she did not embellish her evidence.

[8]       As such, I make the following findings of fact:

a) The principal claimant met her former partner [XXX] in 2000 while working for his uncle’s company called [XXX]. She became pregnant after dating him for approximately one year and they moved in together in [XXX] of 2002;

b) [XXX] was affiliated with the Centro Democratico Party and worked on the campaign of one [XXX];

c) After living together for a while, [XXX] became verbally abusive by making hurtful comments about the principal claimant’s appearance. Once her daughter was born, the principal claimant became aware that [XXX] had other lovers and when she attempted to leave, [XXX] struck her, verbally accosted her, raped her and locked her in the apartment for three days;

d) On the third day, [XXX] came home with roses, food and apologies. He threatened the principal claimant that he would take their daughter away from him if she should ever leave;

e) [XXX] had asked his uncle, the couple’s employer, to start paying the principal claimant’s salary directly to him, as she was allegedly too irresponsible to handle the money herself. Thus, the principal claimant became totally dependent on her former partner;

f) In 2004, after being questioned by his uncle about bruises on her face, [XXX] forbade the principal claimant from working outside the home;

g) In 2012 the principal claimant became pregnant again, this time with a son;

h) In [XXX] 2013, while seven months pregnant, her former spouse raped her and beat her, causing her to enter a depressed state and to develop anemia which required hospitalization;

i) In [XXX] 2014, the principal claimant saw a psychologist who diagnosed her with [XXX] and [XXX];

j) In [XXX] of that year she worked up the courage to file a complaint with the Family Welfare Office. [XXX] showed up to a mediation session with a party colleague who convinced the social worker that the principal claimant was delusional. [XXX] later beat the principal claimant once again;

k) In [XXX] 2016, the principal claimant was alerted by her daughter’s teacher that [XXX] was unhappy and uncommunicative. She was taken to therapy where she was diagnosed with [XXX], [XXX] and [XXX] and ordered to attend further clinical intervention;

l) In [XXX] of 2017, [XXX] invited some of his associates over to the house for dinner. One was an unsavory youth nicknamed [XXX] made appalling comments about [XXX]’ s mature appearance, and referred to her as his “princess”. The youth was openly glaring at [XXX] the whole time;

m) In [XXX] of 2017, the principal claimant found her daughter’s diary while cleaning the house. In it were passages that referred to her inability to cope with the family abuse and that she would rather be dead;

n) At the end of that month, the principal claimant went to the Court in Tulua to seek a restraining order against [XXX]. When the official heard his name, he looked mockingly at the principal claimant and told her without evidence nothing could be done;

o) On Tuesday [XXX], 2017 XXXX came home livid because he learned about the judicial complaint. When the principal claimant showed him the psychiatrist’s notes about their daughter, he went crazy and began hitting the principal claimant and threatened to kill her and the doctor if she kept divulging that [XXX] has mental health issues;

p) On Saturday of that same week, [XXX] showed up with three men to the principal claimant’s stepmother’s home. The two ladies were alone at the time. The men flashed their firearms and began insulting them. [XXX] then bragged about his affiliation with the Los Urabeños criminal group and that he was sent by [XXX] to tell her she had 24 hours to return home or die, and if she disappeared, [XXX] promised him “her princess” as a present;

q) The principal claimant’s stepmother managed to record some of the conversation on her phone. The principal claimant then phoned [XXX] and threatened to expose him and his ties to the Urabeños if he did not leave her and her daughter alone;

r) On [XXX], 2017 the principal claimant called [XXX] and told him to provide her with a consent letter via post to her parents’ house, where it was retrieved by a neighbour;

s) The claimants left Colombia on [XXX], 2017 filed their basis of claim forms on March 28, 2018;

NEXUS

[9]       Based on the above facts, I find that the principal claimant was the victim of physical, emotional and sexual abuse by her former spouse. As such, I find that she has a nexus to the Convention by virtue of her membership in a particular social group – women fearing gender­ related persecution. I find that but for her gender, she would not have been subject to the various forms of violence she suffered at the hands of [XXX].

[10]     The minor claimants [XXX] and [XXX] in my view also have a nexus to the Convention as family members of the principal claimant. The effect of the household domestic violence on [XXX] is particularly acute as evidenced by the psychological documentation filed by the principal claimant. However, it is clear that both children have been threatened and face a future serious possibility of persecution as family members of the principal claimant should they return to Colombia.

SUBJECTIVE FEAR

[11]     The principal claimant tried to leave the relationship three times, twice by filing complaints with the authorities. Each attempt was unsuccessful and resulted in future violence and sexual abuse.

[12]     The principal claimant fled to her parents’ house on [XXX], 2017 and remained there until leaving for Canada the next month. She filed for refugee protection in Canada within a reasonable time, while she had lawful status in Canada courtesy of a previously obtained VISA;

[13]     When the domestic violence began to affect her daughter, the principal claimant took steps to address the mental health issues which arose therefrom.

[14]     All of these actions are consistent with a person that fears their spouse and therefore I find that the principal claimant has demonstrated a subjective fear of persecution.

OBJECTIVE BASIS

Documentary Evidence

[15]     Exhibit 4 contains approximately 11 items, 36 pages in total. This documentation includes two psychological reports and one medical report, as well as excerpts from [XXX]’s journal which support the principal claimant’s allegations that [XXX] was abusive to the principal claimant and verbally abusive to the minor female claimant. It also supports the assertion that the abuse took such a toll on [XXX] that she was preparing to commit suicide.

[16]     The principal claimant has also provided photographs5 and website print outs6 which show her spouse at various events with Senate candidate [XXX], Former President Alvaro Uribe and current President Ivan Duque, among others.

Country Documentation

[17]     The National Documentation Package (NDP) for Colombia indicates that domestic violence is so pervasive and normalized in that country, that it has become virtually invisible to authorities and citizens alike.7 Women are unlike to report such violence to the authorities as they fear being stigmatized or re-victimized by state institutions, and as such spousal abuse – and specifically spousal rape – remains a “serious problem” in the country.8

[18]     In considering the totality of the documentary evidence, I find that the principal claimant has established an objective basis for her fear of persecution on a Convention ground, as well as the children’s fears.

STATE PROTECTION

[19]     The principal claimant alleges that Colombia has failed to protect her from her husband to date and should she return to Colombia, the state would be unwilling or unable to provide her and her children with adequate state protection.

[20]     According to the NDP for Colombia9:

According to the 2015 National Survey on Demographics and Health, 76.4 percent of women never sought help in cases of violence committed against them (Colombia 2015, 84). The same source indicates that, in cases where the violence was reported, 40.3 percent were reported at a police station, 37.2 percent at the FGR, 19 percent at a Family Commissary, 7.1 percent at “another institution,” and 2.4 percent at a court (Colombia 2015, 83-84). Of all reported cases by women victims of violence, the aggressor was penalized in 21.1 percent of the cases, the victim was summoned to conciliation in 29.5 percent of the cases, the aggressor was not penalized or did not appear in 28.2 percent of the cases, the aggressor was ordered not to go near the victim in 22.1 percent of the cases, and in 5.7 percent the aggressor was prohibited from going back into the home (Colombia 2015, 84). In 4.7 percent of the cases that were reported, the violence did not stop, and in 2.3 percent it got worse (Colombia 2015, 84).

A report sent to Congress by the President’s High Commissioner for Women’s Equality, regarding the implementation of Law 1257 of 2008, states that, in 2014, the FGN received 74,899 cases of intra-family violence, with charges laid in 10 percent of the cases and a conviction rate of 23 percent (Colombia 26 Jan. 2017). In 2015 the number of cases received was 85,040, with charges laid in 12 percent of the cases and a conviction rate of 24 percent (Colombia 26 Jan. 2017). The same report states that, despite the increase in the rate of charges being laid, that rate remains “very low, ” and the investigation and prosecution of intra-family violence cases remains “insufficient” and the conviction rate “deficient” (Colombia 26 Jan. 2017).

Country Reports 2016 states that, according to women’s groups such as Sisma Mujer, law enforcement response is “generally ineffective” (US 3 Mar. 2017, 37).

[21]     The NDP further states that due to the prevalence of domestic violence throughout the country and a corresponding lack of resources, the state response to such violence is “insufficient”. As such, spousal abusers are able to act with relative “impunity” in Colombia.10

[22]     This information certainly accords with the evidence of the principal claimant with regard to her attempts to obtain protection prior to her coming to Canada.

[23]     This of course does not take into account the profile of the agent of persecution which in my view, only further supports the inference that state protection for this family is not available in Colombia.

[24]     The ties between the political class and the various criminal groups in Colombia are well documented and date as far back as the 1960’s and 70’s.11 The principal claimant alleges that but for the threat delivered to her at her step-mother’s home, she would not have believed that [XXX] had ties to the Urabeños, but that was the threat and she believed it capable of being carried out.

[25]     The National Documentation Package for Colombia (NDP) indicates that the Urabeños are now the dominant criminal band with the “biggest presence in Colombia” and the ability to “interfere  at  the  national  level.”12 The  International  Criminal  Court  describes  the  Urabeños  as highly organized and able to exert effective control over its members.13 The Urabeños operate through a criminal network composed of nodes that “answer to central command,” and are known to use extortion, threats, killings, and other forms of violence including “kidnapping and selective assassination.”14

[26]     On a balance of probabilities, and in light of the claimants’ particular circumstances, I find that there is clear and convincing evidence that the Colombian state would be unable to provide the claimant with adequate protection. The principal claimant provided reliable and trustworthy evidence of her efforts to obtain state protection, and aside from issuing a report and offering to investigate, the Colombian authorities did not provide specific protection measures.

[27]     The NDP indicates that when victims of armed groups complain to Colombian authorities, the state is often unable to offer operationally adequate protection. This is due in part to the “overwhelming caseload” of prosecutors and “inadequate official investigation” which has “made it difficult to address threats, attacks and killings.”15 This is especially the case for those who are not “high profile”16 as the National Protection Unit (UNP) in Colombia focuses on persons “given their position or activities, [who] may be subjected to extraordinary or extreme risk,”17 such as well-known human rights defenders. The “vast majority of victims of criminal groups do not receive protection.”18

[28]     The NDP indicates that authorities have “failed to curb the power of criminal groups” and crimes committed by neo-paramilitary groups are “sometimes committed with the collusion or acquiescence of the security forces.”19 Indeed, neo-paramilitary groups are known to use ties to Colombian officials in order to “avoid prosecution” and Colombian police officers have been seen “meeting with members of criminal groups, including the Urabeños.”20

[29]     I note that Colombian authorities have undertaken efforts to capture members of the Urabeños.21 However, even if the perpetrators are incarcerated, they can continue to “use alliances outside to take revenge.”22 The preponderance of the evidence before me is both clear and convincing and rebuts the presumption of state protection in the claimant’s particular circumstances. I find on a balance of probabilities, that that the Colombian state is unable to provide the claimants with adequate protection from either [XXX] or the Urabeños.

INTERNAL FLIGHT ALTERNATIVE

[30]     I also considered whether a viable Internal Flight Alternative (IFA) exists for the claimants in Barranquilla and Tunja. The former city is [XXX]-hour drive or [XXX] kilometers from her former residence and the latter [XXX]-hour drive or [XXX] kilometers.

[31]     I must consider a two-prong test in order to determine the viability of an IFA location.23 Firstly, I must be satisfied that, on a balance of probabilities, the claimants would not face a serious possibility of persecution or section 97 risk in the proposed IFA. Secondly, I must be satisfied that it would not be unreasonable, in all of the circumstances, including those particular to the claimants, for them to seek refuge there.

[32]     In determining whether [XXX] and the Urabeños have both the means and motivation to locate the claimant in the proposed IFA locations, I have considered the Urabeños area of operation, its ability to track its victims across Colombia, as well as its level of interest in the claimants. I have also considered the profile of the agent of persecution illustrated by the principal claimant in her testimony.

[33]     With respect to [XXX], the principal claimant alleges that due to his involvement with the Centro Democratico party, he could use his “contacts” to locate her throughout Colombia. She further testifies that this could be done via access to government databases that contain biographical information which must be kept updated in order to access education, health care, exercise voting rights, etc.

[34]     I have examined the NDP for Colombia, particularly Item 10.2 which is dedicated to privacy and data security. This document discusses the legal rights Colombians have over their own data and incidents of misuse. I do not find any support in this document for the claimant’s suggestion that [XXX] or his colleagues in the Democratic Party could track the principal claimant throughout Colombia or that they would even have access to any of these databases.

[35]     The Urabeños are not present in Barranquilla or Tunja according to the NDP.24 However, the Urabeños have a national reach and the ability to operate across the country.25 Human Rights Watch notes that “that there have been documented cases of people being tracked down by the Urabeños after fleeing to other parts of the country.”26 The Urabeños as an organization don’t appear to have any interest in the claimants, save and except on the part of “[XXX]” who approached the claimant purportedly on behalf of [XXX].

[36]     Neither the principal claimant nor her family members have heard from the Urabeños since this single incident in [XXX] of 2017. They have not heard from [XXX] since mid-2018. The principal claimant has no information regarding any recent attempts by either party to locate her and the children.

[37]     I find that based on the information in the NDP and that filed by counsel, the Urabeños have the means to locate the claimant throughout Colombia should [XXX] direct them to do so. It does not appear they have a motive to locate the claimants on their own accord, but the [XXX] 17, 2017 incident demonstrates a willingness to intimidate and threaten the principal claimant and her family at the behest of [XXX].

[38]     I therefore find, on a balance of probabilities that a viable IFA does not exist for the claimants in Colombia, including in Barranquilla and Tunja, which is both safe and reasonable for them.

CONCLUSION

[39]     I find that the claimants are all Convention refugees pursuant to s. 96 of IRPA. The principal claimant has demonstrated a serious possibility of persecution on a Convention ground which exists throughout Colombia, as a woman fearing gender-based persecution.

[40]     Her claim is therefore accepted.

[41]     I find that the minor claimants both face a serious possibility of persecution as members of a particular social group – family members of the principal claimant. This possibility exists throughout Colombia, and I find that they too are Convention refugees as per s. 96 of IRPA.

[42]     Their claims are also accepted.

(signed)           David D’Intino

October 29, 2019

1 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended
2 Exhibit 2.1
3 Exhibit 4.
4 https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/chairperson-guideline.aspx
5 Exhibit 7.
6 Exhibit 8.
7 Exhibit 3. National Documentation Package for Colombia (May 31, 2019 version) Item 5.4 at pg 1.
8 Ibid.
9 Ibid at pgs 6-7
10 Ibid at pg 8.
11 NDP for Colombia. Item 7.20.
12 Exhibit 3, National Documentation Package (NDP) for Colombia Item 7.2, at p. 5, 13.
13 Exhibit 3 Item 7.15, at p. 3.
14 Exhibit 3 Item 7.2, at p. 12; Item 7.15, at p. 3, 4; Item 7.18, at p. 5.
15 Exhibit 3 Item 7.8, at p. 27; Item 1.7, at p. 19.
16 Exhibit 3 Item 1.7.
17 Exhibit 3, Item 7.3, at p. 1.
18 Exhibit 3, NDP for Colombia Item 7.15, at p. 20.
19 Exhibit 3, NDP for Colombia Item 7.15, at p. 19.
20 Exhibit 3, NDP for Colombia), Item 7.2, at p. 12; Item 7.15, at p. 15.
21 Exhibit 3, NDP for Colombia Item 7.15, at p. 19.
22 Exhibit 3, NDP for Colombia Item 1.7, at p. 33.
23 Thirunavukkarasu v. Canada (MEI), 1993 CanLII 3011, paras. 5-6, 14; Rasaratnam v. Canada (MEI), [1992] 1 FC
706, at p. 710.

Categories
All Countries Colombia

2019 RLLR 58

Citation: 2019 RLLR 58
Tribunal: Refugee Protection Division
Date of Decision: May 1, 2019
Panel: J. Pollock
Counsel for the claimant(s): A. Mejia-Arias
Country: Colombia
RPD Number: TB8-07483
ATIP Number: A-2020-01274
ATIP Pages: 000129-000138


REASONS FOR DECISION

[1]       MEMBER: We are back on record. All the same parties are present, except Madam Interpreter has been excused while we were off record.

[2]       While we were off record, while Madam Interpreter was still present, I advised the claimant and counsel that I would be granting the claim here today. Madam Interpreter indicated that she has a headache and is unable to remain in the hearing room. So with — well, I discussed this issue with counsel.

[3]       And Counsel, my understanding is you have no objection to me providing my reasons and waiving off interpretation.

[4]       COUNSEL:  I have no objection.

[5]       MEMBER: Thank you so much.

[6]       All right. While we were off record, I also provided the original documents back to Counsel.

[7]       I have considered your testimony and the other evidence that you presented here today, and I am ready to render my decision.

[8]       This is a decision for Ms. [XXX].

[9]       The claimant claims to be a citizen of Columbia and is making her claim protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[10]     In considering your claim here today and in rendering my decision, I have considered and applied the Chairperson’s Guideline 4 on women refugee claimants fearing persecution.

[11]     I find that you are a convention refugee as you have established a serious possibility of persecution upon return to Colombia based upon your particular social group as a religious community worker who was imputed to be opposed to the ELN.

[12]     Your allegations are set out in detail in your basis of claim form which we have at Exhibit 2.

[13]     You allege that you worked in the evangelical sense by providing community religious work to various underserved communities in Columbia.

[14]     You indicated that you provided literacy lessons to adults and children and that you taught people about the bible.

[15]     You allege that the person who you referred to as your spiritual father, Pastor [XXX] (ph), was murdered in [XXX] 2015 by the ELN. You allege that you, along with his now widow, witnessed this murder, and that ever since this time you received multiple threats from the ELN.

[16]     So specifically, you indicate that you were personally approached while you were in [XXX] (ph) in Sincelejo.

[17]     You were approached by members of the ELN, who identified themselves as members of the ELN who demanded that you cease your religious work, and that you were interfering in the community. They ordered you to leave. They explained that they would kill you if you didn’t do as they told you.

[18]     You further allege you experienced two more threatening phone calls, one in [XXX] 2016, the next in [XXX] 2016. You allege that during these calls they again threatened your life and demanded that you cease your evangelical work. They also demanded that you leave the city.

[19]     As a result, you fled the city where you were living in Manaure and you resided with family. You then fled Columbia for Canada where you remained on a visa.

[20]     You allege that even after you fled Columbia, your family members continued to receive telephone threats regarding you specifically.

[21]     Just for clarity purposes, the full name of the ELN is National Liberation Army, hereinafter referred to as the ELN.

[22]     I find your personal identity as a national of Columbia is established on a balance of probabilities by your Columbian passport, which I have at Exhibit 1.

[23]     Regarding the issue of nexus, I do find that the ELN targeted you for reasons beyond the expansion of their criminal enterprise. I am satisfied that on the particular facts of your case, the ELN targeted you because of your community religious work.

[24]     I would note that even if the ELN has expanded into drug trafficking and other criminal enterprises throughout Colombia, it remains at its core a guerilla group with violent political aspirations and a left-wing political ideology that is known to target community workers.

[25]     In my view, from the perspective of the agent of persecution, your particular religious community activities were in opposition to the objectives of the ELN and, as a result, they imputed to you an anti-ELN political opinion.

[26]     And I am satisfied that your religious work in the community is central to your human rights and, therefore, that you do comprise a particular social group as a community religious worker.

[27]     Regarding your credibility, I find you to be generally credible. I did have some credibility concerns. However, I found you to be extremely credible when it came to your commitment to your religious work in Columbia and your continuing religious work here in Canada.

[28]     I do believe that you acted as a religious worker, that you engaged underserved communities in lessons about literacy, as well as lessons about the bible.

[29]     You provided very detailed testimony in this respect which I found compelling. You spoke about the importance of your faith to you personally.

[30]     You spoke in detail about what led you to become involved in this work back in 1997 and I found that to be credible as well.

[31]     You spoke about why you were motivated to engage in this work after you first met your spiritual father, who then later on was murdered. I would note that this testimony was very difficult for you as it required you to remember this very important person in your life. And as a result, an additional break was offered to you today. I did find that to be very credible.

[32]     I also found to be credible your allegation that you witnessed your spiritual father’s murder. Your testimony about this was consistent and it was detailed and very spontaneous.

[33]     I would note that there was a minor inconsistency in your testimony.

[34]     So when I had asked you about what was told to you during the first telephone threat you received from the ELN, you didn’t mention that they indicated they knew where you were living. However, you did mention the vast majority of every other single thing that you allege that they told you on that day.

[35]     And so I have weighed this omission against the consistent nature of your testimony for that threat in particular, and I find that it is minor in nature. You indicated that you may have forgotten this detail and I am affording you the benefit of the doubt with respect to this inconsistency. I haven’t drawn an adverse inference.

[36]     I do find that you were threatened in person, as alleged, and over the phone as alleged in your narrative.

[37]     However, I did and I am drawing an adverse inference based on your submission of a national attorney general report. Specifically, this report appears at Exhibit 6. So it begins at page 25 and it ends at page 28.

[38]     You tendered this report in evidence and you also provided a purported original document to a company, the copy that you put in evidence. However, upon my review of this original document, I noted there were no signatures apparent.

[39]     However, on the copy in the disclosure package, at page 26, your signature appears above the phrase “reporting party”. I wasn’t sure why this was and so I asked for your comment on this.

[40]     You indicated that you signed this document in Canada. When it was asked why you had done this, you indicated you believed you were supposed to do this. However, I find that this alteration of a document undermines its veracity before me here today and I am drawing an adverse inference as to your credibility.

[41]     In addition to the fact that the original document doesn’t match the document in evidence, I would note that there is no indication that this report was even filed with the authorities. There is no stamp. There is no signature by the receiving party. You indicated they didn’t sign it. However, I am not satisfied on a balance of probabilities that this report was filed

[42]     I also did have some concerns about the appearance of the report. However, I won’t draw an adverse inference on that basis, given that the comparison report may indeed be a different report and that specifically, the report example specimen that I am referring to is at Exhibit 3, Item 9.5.

[43]     So we do have an example of a report to the national attorney general appears to be generally and we know that there is no variation in the format of reports because they are established by the attorney general in Columbia. However, given that the title of the report is different from the title of the specimen, I won’t draw an adverse inference.

[44]     But I do draw an adverse inference based on the fact that you signed this document and I have no credible evidence before me to indicate that it was ever filed.  So I have drawn an adverse inference on this basis.

[45]     However, it’s my job to weigh the evidence before me. Even considering the minor inconsistency about the telephone threat, and the fact that I don’t find this report that you have given me to be credible, I do find that the balance of your evidence is credible and I believe what goes to the core of your claim, which is that you were a community religious worker and that you were threatened by the ELN.

[46]     In addition to these credibility concerns, I also asked you about why you delayed two years in making your claim. So you entered Canada in XXXX or, sorry, in XXXX of 2016 and you made your claim in XXXX of 2018.

[47]     When I asked you for an explanation, you indicated that you — well, first of all, you indicated that your visa did not expire. But then I confronted you with your stamp which indicates it expired in XXXX of 2016. At that point you indicated that in fact you did try and renew your temporary status. But there is no evidence before me that you did engage in an attempt to renew your status

[48]     I have examined the GCMS notes at Exhibit 1 and I note that there is no reference to an extension being filed. The only dates that are after 2015, that I can see in these notes, refer to your claim in 2018 and refer to the file being archived in 2017.

[49]     And so I don’t find that you have established, on a balance of probabilities that you made an attempt to extend your status here in Canada

[50]     I note that by remaining in Canada without authorization for one and a half years following the expiration of your six months upon entering Canada, you were at risk of removal to Columbia. And I find it unreasonable for you not to have made your claim sooner.

[51]     I have considered your explanation, which is that you remained hopeful that the peace process in Columbia — and I do appreciate that and I have weighed that explanation. However, this is a significant delay.

[52]     While I may be in a position to accept that as a reasonable explanation for a shorter delay, I simply don’t find it reasonable for two years, especially when I am finding that you were without status for one and a half of those years and at risk of removal.

[53]     So while I do draw an adverse inference against your credibility based on the significant delay, I don’t find that this failure puts your general credibility in doubt. Indeed, I am mindful that it’s not advisable to deny a claim solely based on an adverse inference as to a claimant’s subjective fear.

[54]     I find even when combining this to your delay with my adverse inference as to your submission of the report that I don’t find credible, I still find that the credible evidence in your claim outweighs these adverse inferences.

[55]     And so I do find you credible on a balance of probabilities and I do find that you face the harm that you have alleged in support of your claim.

[56]     So in addition to your generally credible testimony, you did provide a number of documents which I did find to be credible before me here today.

[57]     So you provided me with a letter from your employer in Columbia. I didn’t see the original of that document. However, I saw a copy.

[58]     You provided me with the original church letter and I found that to be very credible. Your testimony about the name of the church, who your pastor was; all of that was consistent and I placed weight on that letter. I do find that you attended the church you have alleged and that you engaged in the community work that is included in that letter.

[59]     I have also considered the affidavit from your mum. I know that this corroborates your allegations and is also accompanied by information about (inaudible) and also a photograph of her upon making the affidavit.

[60]     I have also considered to be quite credible the affidavit from the friend who you had from the church, Ms. [XXX] (ph) and so that appears at page 19 of Exhibit 6, also an affidavit accompanied by a photo of her commenting on that declaration

[61]     I found that to be consistent with your allegations and that it corroborates the specific allegation where you were personally approached by the ELN.

[62]     I have also considered the affidavit from your sister. And while I note that this doesn’t  refer to her seeking police protection or protection from the authorities as you have alleged, I am mindful that evidence should be taken for what it does say and not for what it does not say and, I further note, that it does corroborate your allegation that she received threatening telephone calls. So I have waived this in your favour as well.

[63]     Perhaps one of the most compelling pieces of evidence that you provided, however, is the affidavit from the widow of your spiritual father. I found this to be very credible and I placed significant weight on this document.

[64]     I found that its description of the murder of your spiritual father to be very consistent with what you have alleged and I also found it to be written in a very compelling manner as well.

[65]     So specifically, she mentions that, “This was the most horrible moment of my life. I’m sure it was the most terrible experience also for XXXX and my daughter.”

[66]     I just found this to be a very credible and compelling document and I accorded it significant weight.

[67]     Okay. So in addition to this personal evidence, I also have considered the objective evidence before me.

[68]     I would note that while the Columbian government has signed a final peace accord with the Revolutionary Armed Forces of Columbia, also known as the PARC, and they have completed PARC demobilization in XXXX 2017, in contrast, the peace process with the ELN has stalled in Columbia.

[69]     The ceasefire with the ELN ended in XXXX 2018 after the armed group resume attacks and the government suspended the peace negotiations.

[70]     So since the end of the ceasefire with the ELN the armed conflict has intensified in many regions in Columbia and, indeed, many FARC dissidents have been joining the ELN, expanding its territory and its operations.

[71]     The ELN is described as Columbia’s biggest guerrilla group with somewhere between 1,500 and 2,500 combatants, which operate in war fronts or urban militias. The ELN continues to regularly carry out kidnappings, extortion, assassinations, bombings and other terrorist activities.

[72]     Indeed, I am also mindful of counsel’s disclosure of recent documentary evidence which indicates that the ELN took responsibility for targeted attacks in January 2019; an attack against a police academy killing 21 people.

[73]     So these more recent reports can be found at Exhibit 6 at page 29.

[74]     Okay. I further acknowledge that the country condition evidence is clear regarding the consequences of being declared a military objective. So you indicate that during the last telephone call they declared you a military objective.

[75]     The national documentation package indicates that when a person is declared a military objective it means that they have been issued a threat to be killed and that their life, physical integrity and freedom are endangered, and also indicates that these objectives are commonly made by guerilla groups such as the ELN.

[76]     The NDP also corroborates that the persecution of social leaders and community workers in Columbia is increasing. Indeed, scores of activists have been murdered and there is widespread impunity for their killers in Columbia. The problem is getting worse, not getting better, according to the objective evidence.

[77]     Moreover, there is specific reference in the documents to the targeting of religious workers.

[78]     So counsel has provided a very recent report which indicates the murder of a religious worker. That appears at page —

[79]     COUNSEL: Thirty-five (35).

[80]     MEMBER: — oh, 35. Thank you so much, Counsel. At page 35.

[81]     And we also know from the objective evidence that there is intimidation, violence and killing and targeting of religious leaders and members of religious communities, that Columbia is one of the most dangerous countries in the world in which to be a community leader, including a religious community worker, that non-governmental organizations in Columbia continue to report that in many areas of the country, illegal armed groups threatened leaders and members of religious organizations.

[82]     So I do find based on all this evidence that your claim is objectively well founded and that you face more than a mere possibility of persecution upon return to Columbia.

[83]     Regarding state protection, I find on a balance of probabilities and, in light of your particular circumstances, that there is clear and convincing evidence that the Columbian state would be unable to provide you with adequate protection.

[84]     You allege that you made no less than three attempts to obtain protection in Columbia by contacting the police unsuccessfully and also the attorney general in Columbia in three specific occasions.

[85]     I find that the objective evidence, in your particular circumstances, supports the inadequacy of state protection in Columbia.

[86]     I would note that the Columbian government has undertaken significant efforts to combat the ELN, including through the bombing of ELN camps and the capture of ELN members. However, the documents also indicate that when victims of armed groups complain to Columbian authorities, the state is often unable to provide them with protection. This is especially so for cases like yourself in which you are not high profile.

[87]     I would note that the National Protection Unit, or UNP in Columbia, focuses on persons given their position or activities who may be subjected to extraordinary or extreme risk, such as well­ known human rights defenders. I don’t find on a balance of probabilities that you are of a particularly high profile or that you are a well-known human rights worker. You are a community religious worker.

[88]     I would note that while this program is in place, there is evidence in the documents to show that four social leaders, who were provided with UNP protection, were killed while under protection of that unit in 2017, despite all four of them having been assigned bodyguards.

[89]     The NDP goes on to note that budgetary cuts affecting the unit have negatively impacted protection schemes and that perpetrators of abuses against rights defenders and community workers are rarely held accountable.

[90]     And so while I note that the state isn’t expected to provide or afford perfect protection at all times, authorities must be able and willing to implement law and procedure.

[91]     So based on my review of the objective evidence and, in your particular circumstances, I find on a balance of probabilities that the evidence is clear and convincing and rebuts the presumption of state protection in your own specific particular circumstances.

[92]     I have also considered whether you have a viable internal flight alternative in Columbia. I proposed the city of Sincelejo and the department of Sucre (ph). I would note that the maps that we have in evidence at Items 1.2 as well as Item 7.23 indicate that the ELN is not present or active in Sincelejo or anywhere in the department of Sucre and that’s why I proposed this specific location.

[93]     I asked you a number of questions about whether you could safely relocate there. You indicated that you fear that the ELN are active throughout Columbia that they operate without people knowing that they are there and that you fear for your life and your safety throughout the country.

[94]     In determining whether the ELN has the means and motivation to locate you in Sincelejo, I have considered their area of operation as well as their interest in you in particular. I would note that the most recent response to information request from April 2018 — that’s Item 7.23 — indicates that information about the ELN’s ability to track people is scarce.

[95]     However, the same document quotes the Amnesty International Americas director’s observation that, “It is possible that the ELN can monitor a target across Columbia.”

[96]     In addition, I note that you were declared a military target and the NDP is clear that for those who are declared a military objective, relocation within Columbia is not an option. This appears at Item 7.21.

[97]     I do note that the ELN has undertaken sustained efforts to find you and that they have located you in a number of different locations in Columbia.   So they have called you and your family members.

[98]     They have called you while you were in Manaure. They have in Antioquia, the department of Antioquia. They have also located you in Nort Des Centendre. You were also targeted in Centendre when your spiritual father was murdered.

[99]     And so I have weighed all of this in the evidence in determining whether you have a viable IFA as well.

[100]   However, perhaps most importantly, I am mindful that you remain committed to your religious social work in Columbia and based on my assessment of your credibility.

[101]   I have also considered whether you would be able to freely participate in these religious activities in Sincelejo without facing a serious possibility of persecution. I find that you could not.

[102]   In making this determination, I have considered the level of violence and harm directed at religious community workers from armed groups in operation throughout Columbia.

[103]   So based on the evidence before me and based on your particular circumstances, I find that you would face a serious possibility of persecution throughout Columbia and that there is no viable internal flight alternative for you in Columbia, including in Sincelejo.

[104]   So I am accepting your refugee claim and I find you to be a convention refugee, pursuant to sections 96 of the Immigration and Refugee Protection Act.

[105]   Thank you so much. Thank you.

[106]   Thank you, Counsel.

[107]   COUNSEL: Thank you.

[108]   MEMBER: Thank you.

– – – DECISION CONCLUDED – – –

Categories
All Countries Colombia

2019 RLLR 56

Citation: 2019 RLLR 56
Tribunal: Refugee Protection Division
Date of Decision: May 8, 2019
Panel: D. Marcovitch
Counsel for the claimant(s): Jonathan W. Jurmain
Country: Colombia
RPD Number: TB8-04624
Associated RPD Number(s): TB8-04707, TB8-04708, TB8-04745, TB8-21591,TB8-21612, TB8-21613, TB8-21548
ATIP Number: A-2020-01274
ATIP Pages: 000108-000113


DECISION

[1]       MEMBER: This is an oral decision in the claims for refugee protection submitted by [XXX], [XXX], [XXX], [XXX], [XXX], [XXX], [XXX], and [XXX].

[2]       I’ve considered your testimony and all the evidence in this case and I’m ready to render my decision orally.

[3]       The claims were joined pursuant to Rule 55 of the RPD rules. [XXX] was the designated representative for the minor claimants [XXX] … [XXX] and [XXX] and [XXX] was the designated representative for [XXX] and [XXX] pursuant to Section 167(2) of the Immigration and Refugee Protection Act.

[4]       Your claims for protection have been made pursuant to Sections 96 and Sections 97(1) of the Immigration and Refugee Protection Act.

[5]       The claimants allege that they face a threat to their lives or a risk of cruel and unusual treatment or punishment if they were to return to Columbia.

[6]       The claimant [XXX] was a [XXX] in Columbia and was actively involved in helping poor claimants … sorry, poor citizens who had been affected by the various active conflicts that have been plaguing Columbia.

[7]       [XXX]’s immediate family in this claim includes [XXX] his wife and his two children [XXX] and [XXX].

[8]       [XXX] came to the attention of the Clan del Golfo when he attempted to enter a poor neighbour in Cucuta North Santander with the intention of meeting a social leader and setting up forms where he could meet citizens and try to help them with land restitution or other [XXX].

[9]       Before you could enter the neighbourhood [XXX] was stopped and investigated by four armed men who claimed to be part of a neighbour … to be part of neighbourhood security and members of the Clan del Golfo. He was eventually free to leave but the men had called their commander and advised that they would be calling him later so that he could do them a favour.

[10]     [XXX] went to the police and filed a denunciation.

[11]     In [XXX] 2017 [XXX] received a call from the Clan del Golfo telling him to return to Cucuta within 10 days in order to discuss a business proposal. [XXX] was advised that the Clan de Golfo knew where he was living in [XXX] and knew many other details about him and his family. Nonetheless, [XXX] did not travel to Cucuta for the meeting.

[12]     After this [XXX] was approached and threatened on several more occasions.

[13]     By [XXX] 2017 the Clan de Golfo had stopped trying to gain his cooperation and instead demanded [XXX] pesos every three months in order for him to continue living. This demand was presented in a threat letter from the Autodefensas Gaistanistas de Columbia and was on their letterhead. The letter also declared XXXX and his family military objectives.

[14]     [XXX] went to the police, the Attorney General, and the Ombudsman seeking assistance for the continued threats and demands. He had also hired private security to protect himself while working.

[15]     Despite being a [XXX] and being familiar with State protection mechanisms, [XXX] was unable to get meaningful assistance from any of the previously mentioned government bodies.

[16]     As a result, [XXX] and his family left Columbia in [XXX] 2018.

[17]     The claimant [XXX] and his immediate family which consists of his wife [XXX] and his children [XXX] and [XXX] claim refugee protection based on being threatened by the same Clan de Golfo members that were seeking out his brother-in-law [XXX].

[18]     [XXX] alleges that he was approached on the street in Bogota on [XXX], 2018 by people claiming to be members of the Clan de Golfo and that they were seeking the whereabouts of [XXX]. [XXX] did not provide them with the information as he not seen [XXX] in several months and was unsure of his location. The Clan de Golfo offered [XXX](ph) … sorry, offered [XXX] financial reward if he had helped them.

[19]     About a week later [XXX] filed a report with the Attorney General about the incident even though he had been turned away from the police twice when he attempted to seek their assistance. [XXX] managed to get a protection order from the Attorney General and provided it to the police. The police dropped by his home and provided three telephone numbers for him to call if he noticed anyone following him.

[20]     The Clan de Golfo contacted [XXX] by phone on [XXX] and then again on [XXX], 2018 to see if he had the requested information. [XXX] reported both of these calls to the fiscalia.

[21]     Eventually, [XXX] received a letter from the Clan de Golfo which declared him and his family military objectives. Along with the letter were also photographs of [XXX]’s family members outside their home and at different locations within Bogota.

[22]     As a result, [XXX] and his family fled Bogota to the United States where they then irregularly crossed into Canada. It was always their intention to come to Canada but could not do directly as their temporary resident visa application had been denied on the basis that [XXX] and his family had already applied for refugee protection.

[23]     [XXX] and his family entered Canada on [XXX], 2018.

[24]     I find that all the claimants are persons in need of protection pursuant to Section 97 of the Immigration and Refugee Protection Act as the risk was occasioned as a result of criminality and extortion and not … and not on the basis of [XXX] political opinion.

[25]     I find that the claimant’s personal identities as nationals of Columbia has been established, on a balance of probabilities, by certified copies of each claimant’s passports which have been seized by Canadian Immigration officials.

[26]     With respect to credibility, I find that the claimants were all credible witnesses.

[27]     I asked extensive questions of [XXX] and he was able to answer my questions clearly and with detail.

[28]     I was concerned about the placement of the fiscalia emblem on the reverse side of his fiscalia reports but in the absence of evidence that such a practice is abnormal, I do not take a negative inference against it.

[29]     I had a few credibility concerns with [XXX]’s testimony as it related to an omission regarding his activities on the day following his first Clan de Golfo contact wherein he went to the United States Embassy in Bogota, but I do not have any clear basis to impugn the core of his allegations on this point alone.

[30]     The claimants also submitted credible documentary evidence in support of their claims, including support letters from politicians, security guards, fiscalia reports, Ombudsman reports, copies of the AGC threat letters, and a text threat message which corroborates their testimony.

[31]     I therefore accept what the claimants have alleged in support of their claims.

[32]     I also note that the objective documentation confirms that Clan de Golfo is an alternative name for the Autodefensas Gaistanistas de Columbia also known as the AGC, and I therefore accept that when the claimants indicate they were threatened by the Clan de Golfo, but the threat letter is from the AGC, that it is the same organization.

[33]     Now, I would normally have considered that the claimants could have had an internal flight alternative in the City of Tunja in Boyaca Department, but because the claimants have been declared military objectives I removed this options as an active issue.

[34]     Documents on file indicate that when a person is made a military objective it means that their life, physical integrity, and freedom are endangered and that this threat extends to the family.

[35]     The National Documentation Package response to information request at Item 7.2(1) suggests that when someone is declared a military objective means they had been marked as someone who is to be killed. I therefore found it odd that [XXX]’s threat letter from the AGC demands money at the same time as declaring him a military objective. This does not directly fit without being declared a military objective plays out according to the NDP document.

[36]     However, on a balance of probabilities, I find that you were, in fact, declared military targets. Further, given that you made several denunciations and sought State protection, I find, on a balance of probabilities, that the risk to [XXX] and his family would have increased.

[37]     Likewise, [XXX]’s family having also been declared military targets and in conjunction with the photographs taken of him and his family, that the threat letter declaring them military target is credible.

[38]     For the following reasons I find that State protection would not be forthcoming for the claimants.

[39]     The objective documentation notes that there’s been some improvement in State response to bacterium groups but the efforts have been mainly confined to a peace with the ELN.

[40]     The State has also managed to see a large demobilization of FARC. However, despite this groups such as the Clan de Golfo which have moved into the territory of the demobilized FARC and have become the largest actrime(ph) group in the country. The Clan de Golfo continues to intimidate opponents and commit other crimes.

[41]     Further, there are reports of complicity and collaboration between bacterium groups and security forces. Investigation of murders by such groups continues at a slow pace and there continues to be issues of impunity for security forces involved in human rights abuses.

[42]     The United Nations High Commission on Refugees reports that witness protection in Columbia continues to be inadequate. They further note that the ability of the government to provide protection is limited due to capacity issues and issues with corruption.

[43]     Further, as a [XXX] who works with disadvantaged citizens, [XXX]’s profile may fall within those profiles considered in the UNHCR refugee eligibility guidelines.

[44]     Further, as the claimants provided evidence that they approached the authorities on a number of occasions but … but no meaningful assistance was forthcoming, I find that adequate State protection was not available to them in the past and would not be in the future.

[45]     Based on the foregoing I find, on a balance of probabilities, that the claimants would not receive adequate State protection in Columbia.

[46]     As previously noted with respect to NDP Item 7.2(1), with the claimants having been declared military objectives, the objective evidence suggests that bacterium groups will travel to anywhere in the country in order to find those who have been declared military objectives. As such, an internal flight alternative will not be available to these clients, so excuse me, claimants.

[47]     I therefore conclude that the claimants are Convention refugees. Excuse me. I therefore conclude that the claimants are persons in need of protection and I therefore accept their claims. Good luck.

[48]    COUNSEL: Thank you.

[49]    CLAIMANT: Thank you so much.

[50]    MEMBER: You’re welcome.

———- REASONS CONCLUDED ———-