2022 RLLR 101

Citation: 2022 RLLR 101 
Tribunal: Refugee Protection Division 
Date of Decision: December 15, 2022 
Panel: Sanaa Mahmood 
Counsel for the Claimant(s): Adela Crossley 
Country: Colombia 
RPD Number: TC1-00854 
Associated RPD Number(s): TC1-00853, TC1-00857, TC1-00859 
ATIP Number: A-2023-01023 
ATIP Pages: N/A 

 

REASONS FOR DECISION 
 
[1]        XXXX (principal claimant), XXXX (principal claimant’s partner), XXXX (principal claimant’s stepdaughter), and XXXX (principal claimant’s daughter), citizens of Colombia, claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i 

 
[2]        The principal claimant was appointed as the designated representative for his daughter. The claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules.1 

 
ALLEGATIONS 
 
[3]        The allegations of these claims are found in the claimants’ Basis of Claim forms.ii In short, the claimants allege a risk to their lives from members of the paramilitary group Los Rastrojos. They allege that they are being targeted by Los Rastrojos for the following reasons. The principal claimant’s niece was sexually assaulted by N, a member of this group. N was imprisoned by state authorities for approximately XXXX. Following his release, N continued persecuting the principal claimant’s niece and her mother, S. They fled Colombia together in XXXX 2019. When N was no longer able to locate the principal claimant’ s niece and S, he began persecuting the claimants, together with the other members of Los Rastrojos. 

 
[4]        The claimants approached state authorities for assistance. However, they did not receive protection, despite making multiple requests for the same. 

 
[5]        The claimants fled Colombia to the United States in XXXX 2021. They entered Canada approximately 10 days later and made their claims. 

 
DETERMINATION 
 
[6]        I determine that the claimants are Convention refugees, due to their membership in the particular social group of family members of women facing gender-related persecution. 

 
[7]        In making this determination, I have considered all the evidence, including the oral testimony, documentary evidence entered as exhibits, and counsel’ s submissions. 

 
ANALYSIS 
 
Identity 
 
[8]        The claimants’ personal identities as citizens of Colombia are established on a balance of probabilities by their Colombian passports.iii 

 
Nexus 
 
[9]         The claimants were targeted by members of Los Rastrojos because they are the family members of Sand her daughter. These members of Los Rastrojos have a personal vendetta against S and her daughter because one of their members, N, was imprisoned for committing sexual assault against S’ s daughter. 

 
[10]       Accordingly, the claimants have established a link to a Convention ground, due to their membership in the particular social group of family members of women facing gender-related persecution. 

 
Credibility 
 
[11]      In assessing the credibility of the evidence presented by the claimants, I was cognizant of the Federal Court of Appeal in Maldonado wherein the Court stated, in part, that “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.”iv 

 
[12]       I find the claimants to be credible witnesses. They were straightforward, detailed, and spontaneous. Their testimony was in keeping with their Basis of Claim forms. There were no inconsistencies or contradictions that were not satisfactorily explained. 

 
[13]       Furthermore, their personal documents corroborate their credible testimony, and I did not find reason to doubt the genuineness of these documents. 

 
[14]      The claimants provided detailed testimony regarding the following events: 

  • The claimants were living together in Cali. The principal claimant learned from S that her daughter had been sexually assaulted by N. He further learned that state authorities pressed charges against N. He was later imprisoned for XXXX. After he was released from prison, S and her daughter fled Colombia in XXXX 2019. 
  • Subsequently, the principal claimant received several phone calls from a person who stated that she is a member of Los Rastrojos and is looking for S. The principal claimant did not provide any information about S to this person. 
  • The principal claimant was approached by N in XXXX 2020 at a local park. N asked about S. However, the principal claimant refused to give him any information. This led to an altercation between them. N tried to overpower the principal claimant, but was unable to. The principal claimant later returned home. He called S and described the appearance of N to her, and S identified him to be N. S asked the principal claimant not to provide any information to N. 
  • One week later, the principal claimant was in his vehicle when he was approached by an individual on a motorcycle who yelled at him and said that if he doesn’t disclose the whereabouts of S, then he will be killed. The principal claimant drove away and managed to lose the motorcyclist. Upon returning home, he told his partner what had happened. 
  • Fearing persecution, they decided to relocate to the home of the principal claimant’ s sister who resides in the City of Palmira. They relocated the day after the incident with the motorcyclist. 
  • The principal claimant tried to make a report in-person to state authorities in XXXX 2021. However, he was directed to make his report online. He then made his report by email. 
  • Shortly thereafter, the principal claimant’ s partner was pursued by a vehicle. However, she managed to escape. 
  • The principal claimant then received an email from state authorities which stated that his case had been archived, as the investigation had been completed, without any results. 
  • The principal claimant sent an urgent online request, asking that his case be reopened immediately. However, state authorities failed to response to his request. 
  • On XXXX 2021, the principal claimant received a phone call from J, a well­known member of Los Rastrojos. J told him that N has ordered that the principal claimant and his family be ‘made into small pieces’. J further said that they are aware that the principal claimant is hiding in Palmira with his family, and there is nowhere in Colombia that they will be able to hide from Los Rastrojos.  
  • The principal claimant made an emergency call to the police. The police officer he spoke to told him that he has “more important things to do”. The principal claimant was told to contact the Prosecutor’ s Office to ask that his case be re­ opened. The claimants submitted an online request to re-open their case. 
  • The claimants decided to flee from Colombia because they were not receiving protection from state authorities. 
  • The claimants entered the US on XXXX 2021. Shortly thereafter, they entered Canada and made their claims. 
  • Subsequently, during XXXX 2021, the principal claimant’ s sister, M, received several threatening phone calls, as well as a visit to her home from members of Los Rastrojos on XXXX, 2021. They ransacked her home, physically abused her, and demanded to know the whereabouts of the principal claimant. She told them that he has left Colombia. Following this incident, M relocated within Colombia. 

 
[15]       The claimants provided extensive supporting documentation to support their claims. At Exhibit 5 are copies of emails and documents from the Prosecutor’s Office that corroborate that the claimants sought state protection, however, their case was prematurely closed. 

 
[16]      At Exhibit 5 are also detailed letters of support from friends and family members of the claimants. In addition, the claimants have provided an online article published by the Prosecutor’s Office, regarding the imprisonment of J for drug-related activities. 

 
[17]       Upon review, I did not find reason to doubt the authenticity of these documents. In addition, I find that these documents corroborate the claimants’ allegations. 

 
[18]       Considering their credible testimony and supporting documentation, I accept the claimants’ allegations as per their oral testimony and Basis of Claim forms, on a balance of probabilities. 

 
Well-Founded Fear of Persecution 
 
[19]       I find that the claimants have a well-founded fear of persecution in Colombia. I find that their subjective fear of persecution is established by their credible testimony. I also find that there is an objective basis for their fear, based on the objective country conditions evidence, namely the National Documentation Package for Colombia, located at Exhibit 3. 

 
[20]       According to Item 7.24, sources describe Los Rastrojos as a drug trafficking organisation. Military defeats and the capture of its leadership led Los Rastrojos to split into factions. Leaders of Los Rastrojos created several agencies dedicated to contract killing, drug trafficking, threats, extortion, and debt collection, often subcontracting to local gangs. According to interviews conducted with state authorities, Los Rastrojos “have demonstrated an unmatched capacity to adapt, expand and contract, which makes it easier for them to resurface in other parts of the country”. Further, Los Rastrojos operates through strategic alliances, which include the National Liberation Army (ELN), the former Revolutionary Armed Forces of Colombia (FARC), and other paramilitary organizations. Los Rastrojos has presence in 27 municipalities in 7 departments in Colombia. 

 
[21]      In addition, the claimants have provided at Exhibit 5 an online article published in March 2019 by the Prosecutor’s Office, regarding the imprisonment of J, a member of Los Rastrojos, for drug-related activities. 

 
[22]       Considering the above, I find that the claimants have a well-founded fear of persecution in Colombia. 

 
State Protection 
 
[23]       There is a presumption that states are capable of protecting their citizens. It is the claimants’ burden to rebut the presumption of state protection. 

 
[24]       In this case, I find that the objective country conditions evidence at Exhibit 3, considered together with the claimants’ personal evidence, supports that operationally adequate state protection would not be available to the claimants, in their particular circumstances, if they were to seek it in Colombia. 

 
[25]      Item 1.7 indicates that while the state has made considerable efforts to enhance protection for victims of non-state armed actors, including NAGs and left-wing guerrilla groups, nonetheless, in areas where there is a strong presence of NAGs and/or guerrilla groups or areas affected by active conflict, the ability of the state to provide protection is highly limited, due to a lack of presence and capacity, as well as sometimes issues of corruption and complicity by local and regional authorities. 

  
[26]      Furthermore, access by some victims of NAGs to national protection schemes is reportedly difficult. For example, it has been suggested that local and regional authorities may dismiss threats and abuses by NAGs as a phenomenon of common crime, underestimating the operational capacities of NAGs and the effect of their activities. 

 
[27]      Item 7.21 states that if a person receives death threats from an armed group, that person may receive protection from authorities if they currently hold a position of leadership or power, or if they are a public servant in the judicial system, but not otherwise. 

 
[28]       In this case, the claimants approached state authorities for assistance, more than once. However, their case was prematurely closed, and they ultimately did not receive any assistance from state authorities. 

 
[29]       At Exhibit 5 are copies of emails and documents from the Prosecutor’s Office that corroborate that the claimants sought state protection, however, their case was prematurely closed. 

 
[30]       Considering the country conditions evidence, as well as the personal evidence of the claimants, I find that the claimants have rebutted the presumption of state protection. 

 
[31]       Accordingly, I find that, on a balance of probabilities, adequate state protection would not be available to the claimants if they were to seek it in Colombia. 

 
Internal Flight Alternative 
 
[32]       To determine whether a viable internal flight alternative exists, I must consider a two – pronged test. I find that the first prong of the test is not satisfied in this case, as the claimants would face a serious possibility of persecution throughout Colombia. As the first prong of the test is not satisfied, I need not consider the second prong. Accordingly, I find that there is no internal flight alternative available to the claimants, anywhere in Colombia. 

 
[33]      In terms of motivation, I note that the agents of persecution continued to pursue the claimants even after they had departed from Colombia. They located the principal claimant’s sister M. On XXXX, 2021, they ransacked her home, physically abused her, and demanded to know the whereabouts of the principal claimant. She told them that he has left Colombia. 

 
[34]       Considering these events, I find that the agents of persecution continue to have a personal vendetta against Sand her daughter. As such, they continue to possess the motivation to pursue her family members, in order to locate her. 

 
[35]      In terms of means, I note that the agents of persecution were able to determine that the principal claimant is the brother of S. They successfully located him and his family in Cali. They also located him and his family after they relocated to Palmira. The agents of persecution also located the principal claimant’s sister M. 

 
[36]       Item 1.7 states that some NAGs possess the operational capacity to carry out attacks in all parts of Colombia, regardless of territorial control. The presence of illegal checkpoints throughout the country increases the possibility that individuals attempting to relocate may be identified and targeted at such checkpoints by armed groups. Also, some armed group networks possess the reach and ability to trace and target individuals, both in rural areas and in urban centres, including in cities such as Bogota, Cali, and Medellin. 

 
[37]      Item 7.21 states that some paramilitary and guerrilla structures have extended vertical organizations and large networks across the country. Item 7.24 states that leaders of Los Rastrojos have created several agencies, that often subcontract to local gangs. According to interviews with state authorities, Los Rastrojos “have demonstrated an unmatched capacity to adapt, expand and contract, which makes it easier for them to resurface in other parts of the country”. Furthermore, Los Rastrojos operates through strategic alliances, which include the National Liberation Army (ELN), the former Revolutionary Armed Forces of Colombia (FARC), and other paramilitary organizations. 

 
[38]       Considering the objective evidence, as well as the personal evidence of the claimants, I find that the agents of persecution possess the means to locate the claimants throughout Colombia, on a balance of probabilities. 

 
[39]       Therefore, the claimants face a serious possibility of persecution throughout Colombia, on a balance of probabilities. 

 
[40]       As the test for an internal flight alternative fails on the first prong, I find that there is no viable internal flight alternative that exists for the claimants, anywhere in Colombia. 

 
CONCLUSION 
 
[41]       Based on the totality of the evidence, I find that the claimants are Convention refugees, due to their membership in the particular social group of family members of women facing gender-related persecution. 

 
  
[42]       I therefore accept their claims. 
 
 
(signed) Sanaa Mahmood 
 
December 15, 2022