Citation: 2021 RLLR 40
Tribunal: Refugee Protection Division
Date of Decision: November 3, 2021
Panel: Catherine Solyom
Counsel for the Claimant(s): Robin Dejardin
Country: Colombia
RPD Number: MB9-19195
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000055-000063
REASONS FOR DECISION
INTRODUCTION
Introduction
[1] These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX, who declares himself to be a citizen of Colombia, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[2] This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the Act.
Allegations
[3] The claimant, a 26-year-old citizen of Colombia, alleges that he is queer, and wants to undertake gender reassignment surgery. Because of his sexual orientation and gender identity, as well as his advocacy for the LGBTI community, he was targeted by the Gulf Clan, the country’s largest criminal organization, as well as by unknown members of the community.
[4] In 2017, he was sexually assaulted by a group of men because he was public about his sexual orientation on Facebook.
[5] Then in 2019, while working for the LGBTI Social Alliance of Antioquia, in Medellin, he was targeted by the Gulf Clan because he counseled transexuals and other members of the community not to give in to threats of extortion by the Gulf Clan and to report these threats to the police.
[6] On XXXX XXXX XXXX 2019, after a tour of the city centre to commemorate the 50 years of the XXXX XXXX XXXX – the riots outside a gay bar in New York City that marked the beginning of the gay rights movement in 1969 – an armed man accosted him on his way home and threatened to kill him if he did not stop his work with the LGBTI Social Alliance. The aggressor also told him if he wished to continue working as a prostitute in the neighbourhood – which he did occasionally – he would have to pay a portion of this earnings to the Gulf Clan.
[7] On XXXX XXXX XXXX 2019, after representing the LGBTI group on a float in the gay pride parade in Medellin, the claimant was threatened again by an armed man who said he knew where he worked and where he spent his free time, as well as where he lived, with his mother and his dog. The claimant also received threatening messages on Facebook and Grindr, a dating app.
[8] Two weeks later, on XXXX XXXX XXXX 2019, the claimant flew to the United States. The next day he crossed the border into Canada and claimed asylum.
Decision
[9] The Tribunal finds that the claimant is a refugee, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should he return to Colombia, on account of his membership in a particular social group, specifically gay and transgender people in Colombia. The reasons are as follows.
Identity
[10] The Tribunal finds that the identity of the claimant as a national of Colombia is established by the documents provided, notably his passport.
Credibility
[11] Based on the documents in the file, the Tribunal has noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above.
[12] Medical reports dated XXXX XXXX and XXXX XXXX 2017, corroborate the allegation that the claimant was drugged and assaulted on XXXX XXXX XXXX 2017 (Exhibit C-1 and C- 3).
[13] Photographs of the claimant at training and public events corroborate the allegations that he volunteered with the LGBTI Social Alliance of Antioquia and took part in events to mark the 50th anniversary of the XXXX XXXX XXXX riots. Other photos of the claimant at a Drag Queen contest and at the Gay pride parade in 2019 also corroborate the allegation that he is queer himself and was an advocate for the community (Exhibits C-10 to C-13).
[14] Facebook posts denouncing violence against the LGBTI community after the murder of a transgender woman corroborate the allegation that the claimant spoke out publicly on behalf of the LGBTI community (Exhibit C-6). Threats receives online after those posts, as well as threats on a dating app, corroborate the allegation that the claimant was targeted because of his public advocacy for the LGBTI community (Exhibit C-15).
[15] This is also confirmed by the submission of a survey given to participants at the 2019 pride parade in Medellin, by the social alliance (Exhibit C-14). This exhibit includes a photograph of the claimant marching at the front of the parade, which appeared in a Colombian newspaper.
[16] A police complaint dated XXXX XXXX XXXX 2019, corroborates the allegation that the claimant sought police protection following the threats he received after the gay pride parade on XXXX XXXX XXXX 2019, and threats he received online, as an advocate with the LGBTI Social Alliance. It also confirms that the local police response was that it was not in their jurisdiction to act on this complaint (Exhibit C-16).
[17] A second complaint, filed with police XXXX XXXX XXXX 2019, also details the incidents in question, and the claimant’s fears and reasons to suspect that the Gulf Clan is behind the threats in person and on social media. The police response is to advise the claimant to hire a private investigator to find out exactly who made the threats (Exhibit C-16).
[18] A letter of support by the Montreal LGBTQ+ Community Centre affirms that the claimant has been an active member of the centre since XXXX 2020, and took part in activities and discussions with the centre even before becoming a member (Exhibit C-18).
[19] After reviewing the documents, The Tribunal has no reason to doubt their authenticity.
Objective basis
[20] Given that there are no serious credibility issues with respect to allegations of the claimant, and in light of the documentary evidence set out below, the Tribunal finds that the claimant has established a prospective risk of being assaulted or killed by the Gulf Clan, or other armed groups because of his sexual orientation, and because of his work as a social leader and advocate for the LGBTI community.
[21] This risk is corroborated by the following documents in the National Documentation Package for Colombia, August 31, 2021 version, at tabs 2.1, 2.17, 2.18, 2.19, 6.3, 6.5, 7.13, 7.21, and 7.28.
[22] Colombia decriminalized same-sex sexual relations in 1981 and has laws and recent court decisions prohibiting discrimination based on sexual orientation or gender identity.
[23] However, sources have indicated that a “significant proportion” of the Colombian population still has prejudices against LGBTI people and there were reports of sexual assaults against members of the community.
[24] According to a report by Colombia Diversa in 2018, 110 persons belonging to sexual and gender minorities were murdered in 2017, while in 2018, 109 individuals were killed. At least 33 percent of these murders and around 34 percent of threats were motivated by the victim’s sexual orientation or gender identity.
[25] Antioquia, where the claimant lived, was the department with the highest number of incidents of violence against sexual and gender minorities in 2018, and the highest number of assassinations that year (23 victims).
[26] Armed groups, like the Gulf Clan, were behind many of the homicides and threats toward LGBTI persons. According to the Colombia Diversa report from May 2020, this kind of violence is used as a “war strategy” and to exercise social control in an area. Between 2014 and 2019, armed groups had issued 75 threats against people belonging to sexual and gender minorities.
[27] The Gulf Clan, responsible for the threats made against the claimant, is said to be the largest and most powerful of the paramilitary groups in Colombia. It is also described as a major drug trafficking group and the largest criminal organization in Colombia.
[28] At the same time, LGBTI people were also at risk of violence by the police. Between 2014 and 2019, there were 431 incidents of police violence against sexual and gender minorities, including 87 in 2018.
[29] While a majority of the members of the community said they did not experience discrimination in their workplaces, this was not true for transgender persons, 40 per cent of which were unemployed because of discrimination in hiring practices.
[30] The claimant would not have been affected by this while he was in Colombia. However, given his stated desire to transition to a different gender, he would face this risk of discrimination as well if he were to return to Colombia and express his gender identity.
[31] There is also a wealth of objective evidence pertaining to the risks of persecution in Colombia facing social leaders and human rights defenders.
[32] According to the U.S. State Department’s Human Rights Report for 2020, several illegal armed groups perpetrated human rights abuses and violent crimes, including murders, kidnapping, torture and threats against journalists, women, human rights defenders and social leaders.
[33] In the first six months of 2020 alone, there were 13 kidnappings of human rights and social leaders.
[34] Citing statistics from the Office of the United Nations High Commissioner for Human Rights, the same report stated that between January 2016 and August 2020 more than 400 human rights defenders were killed.
[35] According to the Inter-American Commission on Human Rights, since 2017, when Colombia recorded its lowest overall homicide rate in the last 30 years, there has been a significant and alarming increase in the number of murders of human rights defenders and social leaders in the country- including a 13% increase in the number of human rights defenders killed from 2018 to 2019.
[36] LGBTI human rights defenders, like the claimant, are in a particularly dangerous situation, the Commission noted, as they are targeted both because of their efforts to defend people who are victims of discrimination and because of their own sexual orientation or gender identity.
[37] With respect to who is responsible for the killings, according to the Office of the Attorney General of Colombia, in a 2018 report, the main perpetrators are, by order of responsibility, individuals, local criminal organizations, the Gulf Clan, and Revolutionary Armed Forces of Colombia (FARC) dissidents and the National Liberation Army.
[38] Civil society organizations point out the difficulty of identifying those allegedly responsible for these crimes. However, many concur in identifying illegal armed groups, first and foremost the Gulf Clan, as the main source of violence.
[39] In this context, and having examined this claim under section 96 of the IRPA, the Tribunal concludes that the risk the claimant faces constitutes persecution based on at least one of the grounds prescribed in the Refugee Convention, specifically his membership in a particular social group – members of the LGBTI community in Colombia – and his political opinion, as a human rights defender working with that community.
State Protection
[40] The Tribunal finds that there is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection, either as a member of the LGBTI community, or as a social leader and human rights defender.
[41] According to several sources, LGBT persons’ rights were included in the 2016 peace agreement with the Revolutionary Armed Forces of Colombia (FARC) and they are recognized as a specific category of victims of the armed conflict in the agreement.
[42] Furthermore, according to information provided by the State, in 2020, 3,686 human rights defenders and social leaders did receive protection through the National Protection Unit (UNP), equivalent to roughly half of the total number of people protected by the UNP.
[43] On the other hand, civil society organizations note that there has hardly been any development of protection measures for LGBTI members by the State since 2016, despite the promises of the accord. And they characterized the protection measures for human rights defenders as “soft”, even in areas with serious security situations, and therefore ineffectual.
[44] Furthermore, as mentioned above, the police themselves are the instigators of violence against the LGBTI community – for example they were responsible for 87 cases of violence against members of the LGBTI community in 2018. As such there is a reluctance by members of that community to seek police protection for fear that they may be re-victimized.
[45] The claimant states and has provided documentary evidence that he sought police protection from the Gulf Clan on two occasions. The first time, in XXXX 2019, he was told by police that it was not in their jurisdiction to investigate the threats he received at the Gay Pride march. The second time, in XXXX 2019, he was told that a police investigation could only begin once the claimant identified a specific person responsible for the threats within the Gulf Clan. The police suggested he hire a private investigator.
[46] Given the objective evidence and the personal experience of the claimant, the Tribunal finds he can not rely on police protection from the threats he received or could face, should he return to Colombia.
Internal Flight Alternative
[47] The Tribunal has also examined whether a viable internal flight alternative exists for the claimant.
[48] According to several sources, the Gulf Clan, who the claimant believes was responsible for the threats levelled against him, has control over the entire territory of Colombia and most of its ports. In 2017, the Colombian government estimated that it had some 2,000 members, who were particularly concentrated in Colombia’s northern region, especially in the Pacific departments of Antioquia, Choco and Cordoba.
[49] While the National Documentation Package for Colombia does not provide specific information on the Gulf Clan’s ability to track individuals to other parts of the country, it does reveal that the Gulf Clan, on top of being the largest and most widespread of the illegal armed groups, also has allies both within and outside of Colombia.
[50] The documentary evidence also shows that members of the LGBTI community, human rights defenders and social leaders are particularly vulnerable to threats and illegal groups, not to mention violence and discrimination, in rural areas and smaller cities.
[51] Based on the evidence on file, the Tribunal finds that the claimant faces a serious possibility of persecution throughout Colombia.
CONCLUSION
[52] The Tribunal concludes that the claimant is a Convention refugee, pursuant to section 96 of the IRPA, and accepts his claim.
(signed) Catherine Solyom
November 3, 2021