Citation: 2022 RLLR 8
Tribunal: Refugee Protection Division
Date of Decision: August 15, 2022
Panel: Kay Scorer
Counsel for the Claimant(s): Karen Jantzen
Country: Colombia
RPD Number: VC1-08948
Associated RPD Number(s): VC1-08949
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: Your testimony and the other evidence before me, and I am prepared to provide you with my decision orally.
[2] This is the decision of the Refugee Protection Division in the claims of protection of XXXX XXXX XXXX, the principal claimant, and her daughter, XXXX XXXX XXXX, the minor claimant, as citizens of Colombia, who are claiming protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. In coming to this decision today, I have considered and applied the Chairperson’s Guidelines on woman claimants fearing gender-related persecution.
DETERMINATION
[3] I find the claimants are Convention refugees within the meaning of section 96 of the Act, because there is a serious possibility they will be persecuted in Colombia by reason of their membership in a particular social group of women and girls who are victims of domestic and family violence.
ALLEGATIONS
[4] The following is a brief synopsis of the allegations that the claimants put forth in their Basis of Claim forms and narratives in Exhibit 2.
[5] The claimants allege they face persecution in Colombia at the hands of the Principal Claimant’s ex-partner, XXXX (ph), who is also the father of the minor claimant. The principal claimant met XXXX when she was young. Shortly after their relationship began, XXXX became violent. The principal claimant wanted to leave him, but she then became pregnant, and believed she had to stay for the sake of the minor claimant. The abuse continued throughout their relationship, including the pregnancy, the abuse was emotional, psychological, physical, and sexual. XXXX would follow her to and from work, threaten the claimant and her family, and abuse her on a regular basis. He stalked her in person and online and contacted partners and family members. The claimant was able to separate from XXXX after the minor claimant was born. The principal claimant felt compelled to allow XXXX and his family access to the minor claimant. At times, he would take her without bringing her back and at other times, when the minor claimant returned, she was unwell and seemingly uncared for. The principal claimant does not know how XXXX earns money but would be advised that he was involved with the Medellin Cartel and narco traffickers. He would post photographs on social media with narco traffickers. He would also advise the claimant of these connections and threatened to have someone kill her.
[6] Despite being separated from XXXX, the abuse continued. The principal claimant tried to seek state protection. She called, for example, the XXXX XXXX XXXX a number of times. XXXX would flee before they arrived, and the police would never follow up on the incident. This allowed XXXX to continue with his behaviour. The principal claimant also obtained a protective order, which is in evidence, but XXXX abuse continued. In XXXX 2017, the principal claimant met a Canadian citizen online named XXXX (ph). XXXX paid for the claimant’s travel to Canada. On the first trip, in XXXX 2018, the principal claimant came alone because she did not know how to obtain XXXX authorization for the minor claimant’s travel. The claimant returned to Colombia in XXXX 2018. She wanted to bring the minor claimant to Canada with her. She spoke to a lawyer, and ultimately, the principal claimant was able to make an agreement not to pursue support payment against XXXX in return for his agreement to allow the minor claimant to permanently leave Colombia. Again, a copy of this agreement is also in evidence.
[7] The claimants entered Canada for the final time in XXXX 2019. The claimants were fearful of returning to Colombia. They believed XXXX was going to sponsor them in Canada. In the summer of 2019, the claimant contacted the office responsible for the sponsorship application and was advised that XXXX had put a stop to the process without advising her. In XXXX 2019, he left the home, which forced the claimant to move in with a friend. Both claimants, I should say. XXXX returned after a month and apologized. They again began the spousal sponsorship process with a new firm. In XXXX 2020, XXXX again left with — while the claimants were out. He did not return. At the end of the relationship, he also was abusive.
[8] At the end of XXXX 2020, the claimants contacted a legal clinic. The principal claimant explained her situation in Colombia and was advised about the refugee process. She then initiated the claim in about XXXX 2021.
[9] Over the years, XXXX has continued to threaten the claimants, including by contacting XXXX in Canada and other partners and family members in Colombia. The claimants fear ongoing domestic violence should they return to Colombia.
ANALYSIS
Identity
[10] I am satisfied on a balance of probabilities that the claimant’s identities as nationals of Colombia are established by the copies of their passports in Exhibit 1 and also by the principal claimant’s credible testimony today.
Credibility and Well-Founded Fear of Persecution
[11] The duty of this Panel is to find that there is sufficient, credible, or trustworthy evidence to determine that there is more than a mere possibility that these claimants would be persecuted if returned to Colombia. My role is to determine if there is a reliable and trustworthy evidence that can establish the claimant’s allegations on a balance of probabilities. In this case, I find there is.
[12] The principal claimant testified on behalf of her family. She testified in a voluntary, detailed, and straightforward manner. She testified to her personal history, including her abusive relationship, and the resulting threats that she and her daughter have faced. Her testimony was very detailed, spontaneous, and emotive, and the claimant also provided ample supporting evidence to corroborate their allegations, including identity documents, a copy of the minor claimant’s birth certificate, a custody order, a permanent travel authorization for the minor claimant, numerous police and state documents relating to the abuse from XXXX, including police reports and a copy of the temporary protective order, numerous documents relating to the relationship with XXXX and the sponsor — spousal sponsorship application in Canada, copies of correspondence between the principal claimant and the airport authorities in Colombia requesting information on XXXX notification request. I have no reason to doubt the authenticity of any of these documents. I assign the documents significant weight, as they corroborate the central elements of the claimants’ allegations.
[13] I also find the principal claimant has satisfactorily explained her delay in making a claim for protection in Canada and her re-availments to Colombia, which were at the behest of her ex-partner, XXXX, who controlled her immigration status in Canada, and which were based on her understanding of the requirements of the sponsorship process in Canada, and given she was required to return to Colombia to pick up her daughter. The delay in re-availments do not diminish the claimant’s overall credibility or the core of their story about domestic, physical, and sexual violence. I find that the claimant’s delays in claiming or the returns to Colombia do not impact the credibility of the claimant’s subjective fears, as I find she has provided reasonable explanations. I therefore make no negative inference against the claimants.
[14] Overall, I identified no material contradictions, inconsistencies, or omissions between the claimant’s allegations and the evidence before me. I find the principal claimant was a credible witness, and I believe what she has alleged both in testimony and in whole in her Basis of Claim form and narratives. I note the — I note further that the claimant’s subjective fears are objectively well-founded and corroborated by the country evidence before me.
[15] According to a report at Item 5.4 of the NDP, “sources indicate that violence against woman has become normalized to the point that it is invisible to authorities and society in general in Colombia. Although prohibited by law, rape, including spousal rape, remains a serious problem. In Cali, women only report domestic violence to the FGN’s office. Family commissaries not properly trained to deal with domestic violence complaints, and the process for dealing with domestic violence complaints are slow and lack effectiveness. Women are revictimized at state institutions as their — as they are the object of offensive or inconsiderate comments by officials who lay the blame on these women for the violence they have experienced. Conciliation is often considered in domestic violence situations, which, in practice, makes women vulnerable, because it means they have to accept the violence from their partner, and leaves them in an even more dire position. The infrastructure and personnel, especially at the family commissiaries (sic), is insufficient.
[16] I accept the principal claimant was a victim of intimate partner violence, and that the minor claimant was a victim of domestic violence in Colombia as she was used as leverage by XXXX to harm the principal claimant. I also accept the principal claimant’s testimony that she is certain that XXXX would harm the minor claimant. I find this certainty is not speculative, but actually a valid inference which can be drawn from the evidence, and which is derived from her own firsthand experiences. I note the objective evidence supports the claimant’s allegations of the tolerance and impunity perpetrators of violence experience in Colombia. I find the claimants have established, with reliable and credible evidence, that they would likely – more likely than not, continue to experience emotional and physical violence from XXXX in Colombia. I find the claimants face a serious possibility of persecution in that country.
State Protection
[17] States are presumed capable of protecting their citizens. In this case, I find the presumption has been rebutted. According to the country condition documents before me, the Colombian Government has passed legislation to address domestic violence. However, these efforts have not been effective on an operational level, and domestic violence continues to be a serious problem throughout the country. The US DOS report at Item 2.1 of the NDP states that although prohibited by law, rape, including spousal rape, remains a serious problem in the country. The report further states that violence against women and impunity for perpetrators continue to be a problem.
[18] According to Item 5.4 of the NDP, as I said, violence against women has become normalized in Colombia to the point that it is invisible to authorities and society in general. A Colombian non-governmental organization that advocated for woman’s rights reports that in many cases women prefer not to report domestic violence out of a fear of being stigmatized or revictimized by state institutions. According to the United Nations, institutions that deal with cases of domestic violence in Colombia have insufficient capacity, resulting in high levels of impunity. As an example, in 2015, Colombia’s Attorney General’s office received over 85,000 cases of intra-family violence, with charges laid in just 12 percent of the cases, and a conviction rate of only 24 percent. Ultimately, I find there is sufficient objective clear and convincing evidence to establish the claimants are unable to receive operationally effective protection from the state authorities in Colombia. In this case, the principal claimant herself has already attempted to seek state protection on numerous occasions, each without any meaningful follow up or protection provided, and even after contacting the state, XXXX continued to harm the claimants. I find in this case the presumption of state protection has been rebutted.
Internal Flight Alternative
[19] the first prong of this assessment is to determine on a balance of probabilities if there is a serious possibility of persecution in the internal flight alternative or a risk to life, cruel and unusual treatment. In this case, I did identify Medellin as a potential IFA. However, the Panel notes the agent of harm in this case has remained motivated and capable in finding the claimants through families and friends. He has been able to find the principal claimant online and even contacted her ex-partners. I find the claimants would have to remain in hiding to not come to XXXX attention. Further, as the father of the minor claimant having a parental connection to the child in the case would allow him to use the courts or police to assist him in locating the claimants throughout Colombia. Although the Panel recognizes court injunctions on him knowing her whereabouts could potentially be put in place under legislation, as previously noted, the ineffectiveness and the conciliation used in these cases is simply not reasonable, and I find there is not sufficient evidence to conclude that they would be effective.
[20] Ultimately, I find the claimants do face a series possibility of persecution throughout Colombia, and that there is no internal flight alternative available for the claimants as a result.
CONCLUSION
[21] For the above noted reasons, I find both of the claimants are Convention refugees pursuant to section 96 of the Act, and I accept these claims today.
[22] So, as I said, that will conclude our hearing for today. Again, thank you, everybody, for your involvement. I will take us off the record now and wish you all the best. Okay?
——— REASONS CONCLUDED ———