2022 RLLR 74

Citation: 2022 RLLR 74
Tribunal: Refugee Protection Division
Date of Decision: October 19, 2022
Panel: Dena Hamat
Counsel for the Claimant(s): Brenda Rizzo
Country: Venezuela
RPD Number: TC1-19536
Associated RPD Number(s): TC1-19562, TC1-19567, TC1-19568
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1]       MEMBER: Okay. I have considered your testimony and the other evidence presented in this case, and I am ready to render my decision orally. The principal claimant, XXXX XXXX XXXX XXXX — her husband, the associated claimant, XXXX XXXX XXXX XXXX. And their children, the minor claimants, XXXX XXXXandXXXX XXXX XXXX XXXX XXXX (sic) — are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. The claimants all claim to be citizens of Venezuela. The principal claimant and minor claimants additionally claim to be citizens of Colombia. The principal claimant was appointed the designated representative for the minor claimants in this proceeding. And these claims were all heard jointly, pursuant to rule 55 of the RPD rules.

[2]       I find that the principal and associated claimant are Convention refugees, as they have established a serious possibility of persecution in Venezuela, based upon their political opinion. Specifically, due to their political support of opposition groups in Venezuela, a criminal gang affiliated with the ruling party, namely the Tren de Aragua have been targeting them. Given that the principal claimant has established that the reach of the Tren de Aragua group extends to Colombia. And that the Tren de Aragua group were previously able to target the claimants in Colombia. The Panel finds that she has further established that she faces a serious possibility of persecution in Colombia. The Panel further finds that the minor claimants have established that they would face a serious possibility of persecution in Colombia and Venezuela, based on their membership in a particular social group as family members of persons, who are being targeted by a criminal gang due to their political activism. The details of your claim are in your Basis of Claim form. And in your Basis of Claim form amendments. In short, you allege persecution from the Tren de Aragua group, in the form of attacks, kidnappings, and threats to you and your family — because you campaigned against Venezuela’s ruling government.

[3]       In terms of identity, the claimants have established their personal identities as nationals of Venezuela, on a balance of probabilities based on their Venezuelan passports found at Exhibit 1. The principal claimant and minor claimants have additionally established their identities as nationals of Colombia, on a balance of probabilities, based on their Colombian passports found at Exhibit 1. The associated claimant’s permanent residency in Colombia and exclusion under Article 1E — I have considered the associated claimant’s permanent residence in Colombia, and whether he is excluded. The claimant’s documents and testimony demonstrate that the associated claimant became a permanent resident of Colombia in XXXX of 2017. His permanent resident status expired after he entered Canada on XXXX XXXX XXXX 2021 and XXXX of 2022. Section E of Article 1 of the Refugee Convention — Article 1E states the following. “This Convention shall not apply to person who is recognized by the competent authorities of the country in which he has taken up residence as having the rights and obligations which are attached to the possession of nationality of that country.” In Zeng, the Federal Court of Appeal established the following criteria to determine whether Article 1E applies. Considering all the relevant factors to the date of the hearing — does the claimant have status substantially similar to that of it’s nationals in the third country? If the answer is — yes, the claimant is excluded. If the answer is — no, the next question is whether the claimant previously had such status and lost it, or had such access to status and failed to acquire it. If the answer is — no, the claimant is not excluded under Article 1E. If the answer is — yes, the RPD must consider and balance the various factors. These include but are not limited to, the reason for the loss of status — voluntary or involuntary, whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts.

[4]       The National Documentary Package for Colombia at Item 3.7 indicates that, individuals who have permanent residency in Colombia are allowed to exercise any legal activity within the country. The claimants further testified that the associated claimant was able to freely live, work, and return to Colombia while he had permanent resident status there. The claimants testified that the — that permanent residents lose their status in Colombia after five (5) years. And that they cannot apply to renew their status, if they are out of that country. In the present case, the associated claimant indicated in his narrative and testified that he left Colombia on XXXX XXXX XXXX 2021. On a balance of probabilities, the Panel finds that the associated claimant’s status expired in XXXX of 2022. And that he has lost his status. Nevertheless, the claimant can be excluded under Article 1E, even if he lost his status, after weighing the various factors in Zeng. I have considered the reasons for his loss of status and whether they are voluntary or involuntary. The claimant testified that he and his family left Colombia, because they were facing threats from the Tren de Aragua, the same group that targeted his family and kidnapped his wife in Venezuela. Given the risk analysis that is given in further detail below, the Panel finds that the associated claimant was forced to leave Colombia as he realized that he and his family cannot be safe in such an environment. In terms of his possibility of returning to Colombia, the claimant has been outside of Colombia for approximately a year. The National Documentary evidence is unclear regarding the expiry of permanent residency and possible return to Colombia. Questioned, the associated claimant testified that he could not return since his permanent status has expired in XXXX of 2022. And he would need to be in Colombia in order to renew his permanent resident status. The Panel funds on a balance of probabilities that the associated claimant left Colombia for legitimate reasons, and is unable to return to Colombia as a consequence. The claimant is not excluded from refugee protection pursuant to section E or Article 1 of the Refugee Convention.

[5]       With regard to credibility, I find you both to be very credible witnesses. And I believe what you have alleged in support of your claim. The principal claimant and associate claimant testified in a straightforward, natural, and unhesitating manner — and responded directly to all of the questions, I and Counsel asked about the central aspects of their claim. There were no inconsistencies between your testimony and the documents before me. Given that I have found you to be credible witnesses, I believe what you have alleged in support of your claim, including the following. The adult claimants were first targeted in Venezuela in 2014, when they joined in protest against the ruling government. As a result, they were identified as enemies of the regime, and started receiving a series of threatening phone calls. They moved from Miranda to Caracas in XXXX of 2015. In XXXX 2015, after the move, they were left a threatening note on their vehicle. They submitted a police report in regards to this incident, but they found that effective assistance was not forthcoming. They decided to move to Colombia, where they believe that they would be safe from their persecutors in the XXXX of 2015. The claimants lived safely in Colombia for a number of years. And decided that it would be safe for them to return to Venezuela, in order to renew their passports in XXXX of 2021, if they stayed there temporarily and cast a low profile. In XXXX XXXX XXXX 2021, while in Venezuela, the principal claimant was kidnapped by the Tren de Aragua, who demanded that a ransom be paid. She was rescued three (3) days later on XXXX XXXX XXXX 2021. And the claimants returned to Colombia, where they believed that they would be safe. On XXXX XXXX XXXX 2021 — in XXXX of 2021, the claimants started receiving a series of threatening phone calls and messages from the Tren de Aragua group when they were in Colombia. These messages identified what the —

[6]       UNIDENTIFIED SPEAKER: Sorry to interject, Madam Chair, we cannot hear you. Nothing.

[7]       MEMBER: Hi. Can you hear me now?

[8]       UNIDENTIFIED SPEAKER: Correct. Yes.

[9]       MEMBER: So, have you not heard me this entire time?

[10]     UNIDENTIFIED SPEAKER: No, we heard you until — I would say, maybe 30 seconds ago.

[11]     MEMBER: Did you hear me talk about the documentary evidence?

[12]     UNIDENTIFIED SPEAKER: Yes.

[13]     MEMBER: Okay. So, I will just start there again. I note the extensive personal documentary evidence in Exhibit 7 and 9 — you presented. Which corroborate the central aspects of your claim. Specifically, you have provided copies of several reports that you made to authorities in Venezuela and in Colombia, that you testified, that assistance from the agencies that you contacted was not forthcoming. You submitted a medical report for the principal claimant, that was obtained after the kidnapping in Venezuela. You submitted letters of support from friends and family members in Colombia and in Venezuela, confirming the central aspects of your claim. You also provided copies of the threatening text messages that you received while you were in Colombia. The vast amount of disclosure in this case corroborate your testimony that you have been repeatedly and systematically targeted and threatened by the Tren de Aragua group in Colombia and in Venezuela. And that you would not be safe, if you were to return there. With regard to reavailment, I note that the principal claimant testified that the claimants returned to Venezuela after they fled to Colombia due to the threats to their lives. She testified that after the claimants moved to Colombia in the XXXX of 2015, they returned to Venezuela in XXXX of 2021 to renew the minor claimant and associated claimant’s passports. The principal claimant was kidnapped during that trip, and they have no returned to Venezuela to date. The Panel finds that the claimants’ return to Venezuela despite their history of being targeted there is inconsistent with fear of persecution at the hands of the Tren de Aragua gang. The Panel therefore draws a negative inference, but ultimately finds that the concerns of reavailment and lack of suggestive fear are outweighed by the other credible evidence in this case.

[14]     I considered whether there is a nexus to a Convention ground. In order to the find the claimants to be Convention refugees, I must find that the fear that the claimants face is based on one (1) of the five (5) Convention grounds. In this case, the principal claimant and associated claimant based their fear on their support for and propagation of anti-government opinions, including the Leopoldo Lopez opposition party in Venezuela. I find the principal and associated claimant have demonstrated that there is a nexus to a Convention ground, that is political opinion. I also find that the minor claimants would face persecution in Venezuela and Colombia based on their familial relationship to the adult claimants for being targeted because of their political activities.

[15]     I have examined your risk in Venezuela. The documentary evidence contained at Exhibit 6, as well as those provided by Counsel at Exhibit 7 and 10 confirm the objective risk that you face in Venezuela. In summary, according to the NDP at Item 2.4, Venezuela’s democratic institutions have deteriorated since 1999. However, political conditions in the country have grown sharply worse in recent years due to harsher crackdowns on opposition, as well as the ruling party relying on widely condemned elections to control all government branches. The authorities have closed off virtually all channels for political dissent. Political opposition to Maduro is simply not allowed in Venezuela. Anyone who is an opponent, perceived to be an opponent, are perceived to support opponents or critics of the government — faces a serious risk of egregious abuse. Including arbitrary detention, torture, and physical violence by the hands of the government — including paramilitary groups called Colectivos. As well as extra judicial killings and deaths. And this is at Items 2.1 and 2.3. Which indicate that this risk extends to family members or perceived opponents. Item 4.6 also states that the armed Colectivos are groups who are politically loyal to the government, and active political enforcers. Evidence suggests that they have access to radio communications, and that they liaison with security forces. While the government has tried to keep it’s links with the Colectivos, a secret — there is a large (inaudible) body of evidence, that they are not just spontaneous groups that emerged to support the government. For example, it appears that they receive benefits such as motorcycles and clothing from the government. And one source stated that they clear act in concert with security forces. Items 1.6, 1.7, 7.7, and 7.6 note that criminal organizations are involved in robberies, kidnapping, fraud, extorting, contract killing, illegal trafficking. Sources use different terms for these organizations — one of which is the Megaband (sic), of which the Tren de Aragua is considered to be. It is regarded as the largest Megaband in Venezuela, and it has branches in at least seven (7) states. It has also gone international, and to expand it’s frequently established alliances with criminal actors in other states. Item 1.6, that the El Tren de Aragua is a transnational criminal band based in (inaudible) which with a presence in Colombia, Brazil, and Peru. It engages in the trafficking of women for  sexual exploitation from Venezuela into Colombia, by offering false job opportunities, and controls irregular border crossings with the Colombian municipality at Villa del Rosario. In reviewing the country evidence, I find the claimants’ fear of persecution in Venezuela to be objectively well-founded.

[16]     I have considered the issues of state protection, and whether there is an internal flight alternative or IFA in Venezuela. States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect it’s citizens. Item 2.1 of the NDP for Venezuela states that, there is pervasive correction and impunity among all the Maduro regime, along security forces in Venezuela and in other national and state regime offices, including at the highest levels. Item 4.5, specifically, cites sources who state that, there is no rule of law in Venezuela. There is no recourse, apart from at an international level. And the government has made clear that international courts have no jurisdiction in Venezuela. I find that any protection from the Tren de Aragua would be informal, and that protection is unlikely to be forthcoming in any event, given the corruption I just cited, and evidence about the integration of the illegal groups with the government itself. And that — and also that you provided evidence of numerous attempts that you made to seek help from authorities in Venezuela, which was not forthcoming.

[17]     I am also required to consider whether there an internal flight alternative for you in Venezuela. In making that determination, I have considered all of the evidence before me, including the fact that the Tren de Aragua recognized you even after your previous seven (7) year absence from Venezuela, where they kidnapped the principal claimant. I also considered the objective evidence in the National Documentation Package at Item 4.16. It stated that the Colectivos reportedly control vast territories across Venezuela, financing (inaudible) by extortion, black market, food, and parts of the drug trade — as the government turns a blind eye in exchange for loyalty. I have also considered the reports of increasing links between the government and organized criminal groups — such as through the drug trade. And I find that those links suggest the kind of access to networks, that would be necessary to facilitate such trade and to attract people. Item 3.2 states that — in fact, the Venezuelan government is very much capable of tracking it’s citizens through the Homeland Card, which it uses to track individual’s voting records, and political memberships, family information, employment, and income, medical history, use of social programs — like subsidized food, and other personal behavioral data. All of which is stored in the Fatherland database. The evidence also suggests that individuals are being left now with no choice, but to obtain a Homeland Card. Since without one (1), it has become impossible to obtain subsidized food and gas. And there are reports of individuals being forced to obtain the card — implies that the card is used as a mechanism of social control. So, considering all of the above, I find that you have established that the agent of persecution has both the means and motivation to continue targeting you throughout Venezuela. Accordingly, I find on a balance of probabilities that there is no internal flight alternative available to you in Venezuela.

[18]     Given that the principal and minor claimants are citizens of Colombia, I have also assessed their risk in Colombia. The documentary evidence contained at Exhibit 3 and 6, as well as those provided by Counsel at Exhibit 7 and 10 — confirm the objective risk you face in Colombia. At Item 1.6 of the NDP for Venezuela, it states that the El Tren de Aragua made inroads into Colombia with the support of the Clan del Golfo. Although, it cooperates with Los Rastrojos for the commission of crimes. Item 4.4 of the Colombian NDP, Exhibit 3, states that — “Although the ELN has faced some competition from Sindicatos, it has cooperated with Venezuelan Colectivos for the paramilitary groups that support Maduro’s regime. The ELN and members of Colectivos have engaged in militant operations together, such as their attack on a demonstration posting self-declared president Juan Guaido in January of 2019.” I additionally found the documents provided by Counsel at Exhibit 7 and 10 to be very probative in evidencing the reach of the Tren de Aragua group into and throughout Colombia. At Exhibit 7, the InSight Crime Report dated October 21st, 2021 states that Venezuelan security forces have warned of the Tren de Araguas presence in the Tachira state, which shares a border with Colombia. InSight Crime field investigations in this region have confirmed that the Tren de Aragua members are not permanently based in Tachira. They travel through the state to reach Colombia. At Exhibit 10, a report dated July 2022 from (inaudible) indicates that the Tren de Aragua operates in Colombia, and that their activities there — include kidnappings, homicides, human trafficking, exploitation, sexual exploitation, drug trafficking, and illegal mining. Other sources within that Exhibit confirm that the Tren de Aragua has a presence in Colombia — in places including Medellin and Bogota. In reviewing the country evidence, I find that the claimants’ fear of persecution in Colombia to be objectively well-founded.

[19]     In terms of state protection and an IFA in Colombia, I find that adequate state protection would not be available to you, were you to seek it in Colombia. As per Exhibit 3 at Item 1.6, the objective documentation sets out that, although the government has made considerable efforts to enhance protection for victims. The ability of the government to provide protection is highly limited, due to the lack of presidents and capacity. As well as sometimes issues of corruption and complicity by local and regional authorities. Despite the government’s strategy to combat (inaudible) and the arresting conventions that have occurred, the violations committed by these groups have not been significantly reduced. And their structure to seek control over illegal activities remains intact. This information together with the claimants’ own experiences of trying to report to the Colombian police, while failing to receive effective assistance — following the Supreme Court of Canada’s decision in Ward, is clear and convincing evidence sufficient to rebut the presumption that they will not be able to access adequate state protection if they returned to Colombia.

[20]     I have also considered whether a viable internal flight alternative exists for the claimants anywhere in Colombia. And I find that none exists. The objective country evidence cited above demonstrates that the Tren de Araguas have ties to the Gulf Clan, which has a presence throughout the country. The national reach of the Gulf Clan is documented in the NDP at Item 7.15. Which indicates that other persons in Colombia have been tracked down by the Gulf Clan, after fleeing to various parts of the country. I also note that the claimants have demonstrated with credible evidence that their prosecutors were previously able to find them in Colombia, after they left Venezuela. For all of these reasons, I find that the claimants have no viable internal flight alternative in Colombia.

[21]     So, for all of these reasons, I accept that you are refugees under section 96 of the Immigration and Refugee Protection Act. And so that is my decision, and you will be getting a copy in the mail. So, you can have that translated.

——— REASONS CONCLUDED ———