2022 RLLR 100

Citation: 2022 RLLR 100 
Tribunal: Refugee Protection Division 
Date of Decision: September 13, 2022 
Panel: Huyen Dam 
Counsel for the Claimant(s): Dariusz Wroblewski 
Country: Colombia 
RPD Number: TC0-11959 
Associated RPD Number(s): N/A 
ATIP Number: A-2023-01023 
ATIP Pages: N/A 

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

 
ALLEGATIONS 
 
[2]        The claimant’ s allegations are fully set out in his Basis of Claim (BOC) and amended BOC forms, found at Exhibit 2.1 and 2.2. The claimant alleges that he is a retired XXXX in Colombia and had been honorably discharged in February 2019. He alleges that the criminal group, Autodefensas Gaitanistas de Colombia” (AGC), which is popularly known as the Golf Clan, had targeted him for serious harm in Colombia as a result of his profile and work as a XXXX within the XXXX. The claimant alleged that the following had taken place in Colombia prior to him fleeing:  

  • On XXXX, 2018, his wife’s XXXX was intercepted by two unknown men. 
  • On XXXX, 2018, he and his kids were intercepted on the road by two unknown men in Bogota. 
  • On XXXX, 2019, he was intercepted by two unknown men, he ran, and they shot at him. 
  • On XXXX, 2020, approximately 20 armed paramilitary men came to look for him at his cousin’s farm in XXXX. 

DETERMINATION 
 
[3]        In rendering this decision, the Panel considered the totality of the evidence, including the claimant’s testimony heard on April 26, 2022, and all evidence received at the Immigration and Refugee Board of Canada (IRB), along with the post-hearing documents, found at Exhibit 5.5 received at the IRB on May 4, 2022. 

[4]        The Panel finds that the claimant is a person in need of protection pursuant to subsection 

97(1). The reasons are as follow. 
 
ANALYSIS 
 
Identity 
 
[5]        The Panel finds that the claimant has established his personal and national identity on a balance of probabilities. In coming to this finding, the Panel reviewed and considered his testimony as well as his Colombian passport and national identification card proffered into evidence at Exhibit 1. 

 
The Risk Alleged is Personal 
 
[6]        The claimant was not targeting by reason of his race, nationality, membership in a particular social group, and political opinion. The claimant was a XXXX. As such, his claim will be assessed under subsection 97(1). 

 
[7]        The Panel finds that the claimant faced escalating threats from the AGC. Given that the claimant was tracked and targeted in multiple locations for two years, the Panel determined that this alleged risk to the claimant is personal. 

 
The Claimant’s Risk is Not Generally Faced by others, Subparagraphs 97(1)(b)(ii) of the IRPA 
 
[8]        According to the National Documentation Package (NDP) for Colombia, found at Exhibit 3, at Tab 1.2, the source indicates that the Autodefensas Gaitanistas de Colombia (AGC) is Colombia’ s most powerful paramilitary group with a national presence. The source indicates that the AGC are among the illegal armed groups that carry out violent attacks against civilians and security forces, and they are active throughout Colombia. 

 
[9]        According to the NDP at Tab 1.8, the source indicates that current and former public servants responsible for activities related to human rights are among those whose lives are at risk a “direct” consequence of their “activities or political, public, social or humanitarian roles.” Moreover, those qualifying for extraordinary risk must meet the following criteria: 

  • Be specific and personal. 
  • Be concrete and based on particular and demonstrated actions or events and not on abstract assumptions. 
  • Be present, and not remote or possible. 
  • Be significant, that is, that threatens to violate protected legal rights. 
  • Be serious, of plausible materialization due to the circumstances of the case. 
  • Be clear and discernible. 
  • Be exceptional to the extent that it should not be borne by the wider population. 
  • Be disproportionate, compared to the benefits the person can have from the situation for which the risk is generated. 

[10]       At Tab 4.10, the NDP indicates that the AGC is principally interested in the drug trade, arms trafficking, and illegal gold mining. Given his former work as a XXXX and role as a XXXX within the XXXX, which directly opposes the goals of the AGC, the Panel determined that the claimant qualifies as someone who would be at extortionary risk given his line of work. 

[11]       Given the objective evidence as set out above, the Panel finds that the claimant has established a prospective risk in Colombia. 

 
Subparagraphs 97(1)(b)(iii) and (iv) of the IRPA 
 
[12]      The claimant’s risk to life is not connected to lawful sanctions or caused by the state’s inability to provide medical care. This satisfies subparagraphs 97(1)(b)(iii) and (iv) of the IRPA. 

 
Credibility 
 
The Claimant is a XXXX 
 
[13]       The claimant testified in a straightforward manner and made no attempts to mislead the Board. 

 
[14]      In assessing the claimant’ s credibility, the Panel considered a number of supporting documents. At Exhibit 5.5, the claimant tendered his XXXX card and training certificates. After reviewing these documents, the Panel finds no reason to cast any doubt on its veracity. As such the Panel places weight on these documents to support the claimants’ identity as a XXXX in Colombia. On a balance of probabilities, the Panel determined that that claimant is a XXXX as alleged. 

  
The Claimant was Threatened by the AGC 
 
[15]       The claimant testified that he was targeted for serious harm as a result of his work. At Exhibit 5.2 and 5.5, he submits the following to support the credibility of his claim:

  • photo evidence of his wife’s XXXX being intercepted by his agent of persecution. 
  • letters from family and friend affirming the events in 2018, 2019 and 2020 corroborates the dates and details of these events. 
  • his wife’s BOC narrative dated August 10, 2018, corroborates the events of attack in 2018 to the claimant. 

[16]       After reviewing these documents, the Panel finds no reasons to doubt their authenticity. As such, the Panel places full weight on them to support the allegations the claimant was threatened with serious harm from 2018 to 2020 prior to fleeing Colombia by members of the AGC. Additionally, the claimant’s testimony was internally consistent, consistent with his BOC and the other evidence on file. As such, the Panel accepts the claimant’s full allegations. 

 
[17]       The Panel also considered the claimant’s delay in leaving Colombia. According to his passport, the claimant has a valid USA visa from 2018 to 2020. When the issue of delay was put to the claimant, he explained that it was his hope to stay in Colombia despite his family fleeing for safety and while he lived in hiding at times. The Panel does not accept the claimant’s explanation given that it is reasonable to expect him to not stay in a country where he is being pursued while having the means to leave. However, the Panel finds that this delay in leaving, was not sufficient, when considering the totality of the evidence, to overturn the credibility of allegations that have been established. 

 
[18]       Given that there are no credibility concerns with respect to his core allegations, coupled with the documentary evidence set out above, the Panel thus determined that the claimant has established his future risk in Colombia. 

 
State Protection 
 
[19]       The claimant testified that he did not go to the police for help because he did not trust anyone. The claimant had an obligation to approach the state for protection if protection might be reasonably forthcoming, given that those who are public servants in the judicial system are afforded protection.i The claimant’s failure to do so in certain circumstances could be reason for a claim to fail on state protection grounds. Ultimately, the claimant did not take reasonable steps to seek the protection in Colombia in timely manner, however, the Panel finds that, on a balance of probabilities, adequate state protection would not have been forthcoming for the claimant given the objective evidence as set out below. 

 
[20]       The Panel finds that the claimant’s allegation of police corruption and collusion is supported by the objective evidence. At Tab 4.10, the NDP states that across the department, the AGC acts similarly to traditional Colombian paramilitary groups by combining counter­ insurgency operations, illicit economic activities, and alleged collusion with state forces. The source further indicates that military and police corruption and collusion with certain armed actors impede progress toward lasting improvements in security, and require stronger judicial oversight if operations are to prove successful over more than the short term. 

 
[21]       The NDP also sets out that although the government has made considerable efforts to enhance protection for victims of non-State armed actors including the AGC, it’s noted that in areas where there’s a strong presence of new armed groups or guerilla groups, the ability of the government to provide protection is highly limited due to a lack of presence and capacity.ii More generally, inadequate official investigation has reportedly made it difficult to address threats, attacks, and killings. The NDP indicates that investigation, charges, and criminal conviction are often extremely prolonged, wrought with delay and inadequacy.iii The most common protection measure includes regular police check-ins which are hampered by police absence and inconsistency.iv 

 
[22]       The Panel finds that the claimant’s work in XXXX which was directly involved in XXXX of organized criminal group, has put him at risk. He testified that he is aware that the police and military have not been able to protect other XXXX from members of organized criminal groups, including the AGC, and knows his colleagues were targeted and killed by gang members. He fears that that he will be killed if he returns to Colombia. 

 
[23]       The Panel also consider those in similar situation to the claimant, that being his wife and children who fled as a result of the same agent persecution. The Panel notes that the claimants’ wife and children were granted refugee protection in Canada according to the claimant’ s evidence found at Exhibit 5.5. 

 
[24]       While states are presumed to be capable of protecting its citizens, this presumption is rebuttable with clear and convincing evidence to the contrary. 

 
[25]       Having considered the totality of the evidence above, the Panel finds that the claimant has rebutted this presumption, on a balance of probabilities. The Panel finds that Colombia is unable to provide adequate state protection for the claimant. 

 
Internal flight alternative 
 
[26]      The claimant must show that, on a balance of probabilities, he would face a risk to life or of cruel and unusual treatment or punishment should he return to Colombia. 

 
[27]       Second, the Panel must be satisfied that the conditions in the suggested IFA location is objectively reasonable in all the circumstances, including those particular to the claimant, for him to relocate and reside there. 

 
[28]       Once the possibility of an IFA is raised, the burden shifts to the claimant to show, on a balance of probabilities, that there is a risk in the IFA location. The Panel finds that the claimant has met this burden. 

 
[29]       At the hearing, the Panel named Tunja and Florencia as potential IFA locations. 

 
[30]       Given that the claimant has established his escalating threat by the AGC over the span of 2 years from 2018 to 2020, and across the country in multiple locations, the Panel determined that the claimant has shown that the AGC had maintained an ongoing and active interested in locating and harming him. 

 
[31]      The NDP clearly sets out that criminal groups have the ability to track and locate their victims, if they want to, including the AGC. As indicated in the objective evidence below, Tab 

7.37 from August 13, 2021, states: 

Sources indicated that criminal groups are “definitely” able to track targeted individuals (Professor 12 July 2021; Senior Analyst 8 July 2021). The Senior Analyst further stated that the “main method” used by criminal groups is “word of mouth” through country-wide networks or “urban collaborators” (Senior Analyst 8 July 2021). According to the Professor, criminal groups “mostly” track their victims through informants, contacts in intelligence agencies and the army, and networks with other criminal groups “across the country” (Professor 12 July 2021). 

[32]       While it can be stated that the criminal groups do not take the time and resources to locate and harm every victim, the Panel finds that on a balance of probabilities, the claimants’ agent of harm has shown a sustained interest in him over time. Given their ability to locate the claimant throughout Colombia, the Panel determined that there are no other parts of the country where he would not face a risk to life or of cruel and unusual treatment or punishment throughout Colombia. Given that the IFA test fails on the first prong, there is no need to assess the second prong of the test. 

 
CONCLUSION 
 
[33]       For the reasons above, the Panel finds that the claimant is a person in need of protection pursuant to section 97(1) of the IRPA. Accordingly, his claim is accepted. 
 
 
(signed) H. DAM 
 
September 13, 2022