Citation: 2020 RLLR 141
Tribunal: Refugee Protection Division
Date of Decision: February 3, 2020
Panel: Isis Van Loon
Counsel for the Claimant(s): Simon Trela
Country: Colombia
RPD Number: VB9-03954
Associated RPD Number(s): VB9-03929, VB9-03968, VB9-04026, VB9-04033, VB9-04034
ATIP Number: A-2021-01106
ATIP Pages: 000158-000162
DECISION
[1] MEMBER: [XXX] the principal claimant, [XXX] and [XXX] her adult sons, [XXX] her adult daughter and the mother of and designated representative for the minor claimants [XXX] and [XXX] seek refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. I maintained the designation of [XXX] as the designated representative for the two minor claimants pursuant to subsection 167(2) of the Act and Rule 20 of the Refugee Protection Division Rules. These claims were joined according to Rule 55 of the Refugee Protection Division Rules.
[2] The claimants allege that FARC will murder them if they’re returned to Colombia because they’ve refused to pay the FARC’s extortion demands. The FARC has murdered the principal claimant’s uncle on [XXX] the [XXX] 2018 after their first written demands for payment were not met. I find the claimants have established on a balance of probabilities that they would personally be subjected to a danger of torture or face a risk to life or risk of cruel and unusual treatment or punishment upon return to Colombia. My reasons follow, the claimants’ identities and citizenship as nationals of Colombia were established by their testimony and the supporting documentation filed, including certified true copies of their passports in Exhibit 1.
Credibility
[3] When a claimant swears to the truthfulness of certain facts, there is a presumption that what they have said is true, unless there’s sufficient reason to doubt the truthfulness. The claimants testified in a straightforward manner with no inconsistencies in their testimonies or contradictions between their testimonies and other evidence before me. I found the adult claimants to be credible witnesses and therefore accepted as true the facts that they have alleged in support of their claim. The minor claimant’s-, actually one did testify a little bit, the other one did not testify. The claimants provided the following relevant and prohibitive documents in their Exhibit 4. Their corporate documents showing the family owned the [XXX], a [XXX] corporation located in Bogota. Their two threatening letters referred to as pamphlets from the FARC dated [XXX] of 2018 and [XXX] of 2019. There are various reports of crime-, of the crime related to the FARC to the police, including the ones made after [XXX] 2018 and on [XXX] 2019. As well as the homicide investigation documents from the police with respect to the murder of the uncle and these include photos and a description of gun-, of his cause of death as a gunshot wound to his face. There’s a copy of the-, of an advice letter from the Minister of Defense from [XXX] of 2019, which is outlining to the claimants steps that they personally should take to try to be safe.
[4] There’s a dep-, depositions from three former employees that state that they were aware that the FARC had been threatening their employers and the FARC also demanded extortion payments from the workers. I found these documents were relevant and served to corroborate the claimant’s allegations that the family owned a company that was being extorted by the FARC. That they refused to pay the demand and reported the crimes to the police and that their uncle had been murdered for failure to pay the FARC. Victims of crime corruption or vendettas generally cannot establish a link between their fear of persecution and one of the Convention grounds. Although the claimants are clearly politically opposed to the FARC, they were not targeted by the FARC on the basis of their political opinion, but they were targeted for criminal extortion. So, there is no information before me indicating that FARC targeted the claimants by reasons of a Convention ground and accordingly I’ve assessed these claims under Section 97(1) of the Act.
[5] In order to be considered a person in need of protection under Section 97(1), claimants must demonstrate on a balance of probabilities that they would be subjected personally to a risk to their life or a risk of cruel and unusual treatment or punishment if they’re returned to Co-, Columbia in this case. In addition, in accordance with 97(1)(b)(ii), the risk that the claimant faces must not be one that is faced generally by other individuals in or from Colombia. The claimants have established that they’ve personally been targeted by the FARC group, in fact, the first FARC threat in the form of a pamphlet specifically named the principal claimant, her adult sons, and daughters, and includes the children that is her grandchildren, the minor claimants, in that first pamphlet. The risk the claimants face, I find, is unique to them and it’s significantly greater than the risk faced by others generally within Colombia. On [XXX] of 2018, the first threatening extortion pamphlet from the FARC was delivered to the claimants while they were en route to their summer place about four hours from Bogota. Two men on motorcycles stopped them in their car about an hour away from this summer house to deliver the threat, on [XXX] they noticed motorcycles around their business in Bogota and they informed the police. They also informed police of the first threat, the claimants went to hide at their summer house on [XXX] around 7 o’clock that evening, armed men came to demand the extortion payment and their uncle refused and they murdered him and threatened the entire family, if the payments weren’t made. The claimants reported this to the police and a homicide investigation was opened, the claimants received a number of threatening phone calls over time, where people identifying themselves as being from the FARC, said the claimants should pay or be killed like the uncle and there was nowhere they could hide. And the FARC gave specific details about the family that made the family believe that the FARC was monitoring them.
[6] The claimants attempted to hide in [XXX] from [XXX] to [XXX] of 2019, this is the same province as the city of [XXX]. They continued to receive threats and warnings to pay, they then returned for a short time to Bogota, never staying long in one place, as there were legal documents with respect to the business that had to be signed. On [XXX] 2019 they received a second pamphlet from the FARC which named them as military objectives and warned their employees and they-, sorry they warned their employees, closed the business, and went to the police that same day to report this new threat. The police warned them that as the threats specified they were now considered FARC military objectives, there is nowhere safe in Colombia and they should leave the country. The police did provide them advice on how to be safe but essentially, it’s a self-protection type of advice that was provided, such as avoiding travel routines, routes used for transportation, et cetera, carry with you an effective device of communication, if you’re at a traffic light, when you’ve had to stop or stop signs et cetera, look around to see if there’s anything suspicious and be ready to keep driving, and share these safety measures that you adopt yourself with your-, your family.
[7] So clearly, the police themselves were not willing or able to more than to just give advice on what the claimants themselves could do to try to stay safe. The claimants fled to hide with a friend in Cartagena, the designated rep for the two minor claimants, their mother, was separated from her former husband and it took some time for her to locate him and get his permission to take the minor claimants out of the country. This delayed the family’s departure, they received the authorization from the ex-husband on [XXX] the [XXX] of 2019 and left for Canada on [XXX] of 2019. The minor claimant’s mother said that she had notarized documents giving her ex-husband’s permission to remove the children from the country and that it’d been necessary for her to show these documents while exiting Colombia and entering Canada. She did not have these notarized documents with her at the hearing but offered to provide them as she had them at home in Canada. On a balance of probabilities, I am satisfied that she did have authorization from the minor claimant’s father to take the two minor claimants out of Colombia.
[8] The NDP 7.2 talks about the criminal groups and says that they pursue function of ter-, functions of territorial, social and economic control exerted by violent means. Their activities include murders, smuggling, drug trafficking, kidnapping, human trafficking and so on. They’re known to establish illegal checkpoint, enter private homes, and monitor private communications. NDP 7.18 states that initially the November 2016 peace process with the FARC brought over 11,000 members back to civilian life. At that time there were around 1,000 FARC dissidents who refused to cooperate and were acting in fact as de facto rulers in their desperate territories. Despite their origins, many of these dissident groups were even more abusive than the predecessors as they compete among themselves, sometimes brutalizing local communities to maintain their control. After the peace accord, the situation has worsened and there are more FARC members leaving the peace process, in spite of a concerted effort by the Colombian government with over 10 billion in U.S. assistance over the past 15 years. The rebel FARC group still operated in a large proportion of Colombia’s 32 departments and currently was estimated to have about 8,000 gorillas in its ranks, and this is more, this is a post peace accord document NDP 4.5. I note also maps showing dissident elements of FARC scattered throughout the country and NDP 1.2 stated that following the demobilization of the FARC in 2017 dissidents formed groups throughout Colombia. So, there’s plenty of evidence that indeed these FARC dissident groups are operational widely in Colombia.
[9] NDP 7.21 states that the FARC is known to issue threats declaring people military objectives. When a person is declared a military objective, it means that they’ve been issued a threat to be killed. When a person is a military objective their life, physical integrity, and freedom are endangered and this threat also extends to their family. These declarations can come in many forms, including the pamphlets or-, or essentially, they appear to be letters from the FARC, that the claimants received. Based on the claimants’ testimony and supporting documents and the country conditions documents, I’m satisfied on a balance of probabilities the claimants would be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment at the hands of the dissident FARC if they return to Colombia.
[10] Now except in situations where state is in complete breakdown, states are presumed capable to protect their citizens. To rebut this presumption the onus is on the claimant to establish on a balance of probabilities with clear and convincing evidence that their State’s protection is inadequate. So, we look at country documentation, it states that a citizen, not in a position of power or in the judiciary, might not receive protection from the police or other forces, this is NDP 7.21. The a-,which is a response to information request from the IRB, one of the people the IRB spoke to was an assistant professor who said relocation within Colombia is not an option for those who’ve been declared a military objective because paramilitary and guerilla structures have extended vertical organizations and large networks. As previously discussed, the FARC has wide reach in the country despite the State’s efforts, after they received the first FARC pamphlet and reported it to the police, the claimant’s uncle was murdered and the murder has not been solved. The FARC was able to locate the claimants in a number of places previously, the claimants describe how they were advised by police to leave the country after they were declared military objectives in the second pamphlet from the FARC. And this is in line with the country documentation that states that there is nowhere internally they can relocate and this would be despite the fact that there is a functioning state with some degree of state protection. The claimants also provided an Exhibit for that copy that I’ve referred to previously on the standardized advice police give to people at risk such as the claimants and it’s basically just self-care. The claimants had already been taking similar measures before they received the second pamphlet from the FARC, while stopped at an intersection in Bogota.
[11] Satisfied on a balance of probabilities that the State of Colombia is unable to provide adequate protection to these claimants, if they return to Colombia and accordingly, I find that there is no adequate state protection for these claimants. Now, an internal flight alternative arises if a claimant who otherwise meets all the elements of a definition of someone who needs protection in their home area of a country, nevertheless, couldn’t-, could live safely elsewhere in that country and therefore would not be in need protection. There is a legal test which has two prongs, on the first prong I’d have to be satisfied that there would be a place in the country where the claimants could safely relocate. As well, conditions in that part of the country would have to be such that they weren’t unreasonable, in all circumstances, including those particular to the claimants for them to go there and seek refuge there. Well, the FARC has shown persistence in tracking these claimants over a period of time, twice finding them while traveling on the roads, and the FARC have indicated that they have details about the family members. Furthermore, they did not hesitate to kill the uncle when he refused their extortion demands, I’m satisfied that FARC has both motivation and means to harm the claimants. Furthermore, the country documents as previously discussed, shows that FARC is widely active in Colombia in spite of the 2016 peace accord. As well, the country documents previously discussed showed that for those declared military objectives, as these claimants have been, there is no viable IFA. They are not safe anywhere in Colombia.
[12] Therefore, I find on a balance of probabilities, the claimants would be subjected personally to a risk of life or a risk of cruel and unusual treatment or punishment, if returned to Colombia. And accordingly, I’ve accepted their claims.
———- REASONS CONCLUDED ———-