2023 RLLR 134
Citation: 2023 RLLR 134
Tribunal: Refugee Protection Division
Date of Decision: December 19, 2023
Panel: Ayo Adetuberu
Counsel for the Claimant(s): Alexander Fomcenco
Country: Colombia
RPD Number: TC2-36640
Associated RPD Number(s): N/A
ATIP Number: A-2024-00768
ATIP Pages: N/A
DECISION
MEMBER:
Introduction
[1] This is the decision of the Refugee Protection Division for the claimant, XXXX XXXX XXXX XXXX, file number TC2-36640. You claim to be a citizen of Colombia and you are seeking refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act. I have considered your testimony and the other evidence in this case, and I am ready to render a decision orally. The written decision will be sent to you shortly and may be amended for spelling and grammar purposes. In assessing this claim and arriving at this decision, I have considered and applied the Chairperson’s Guideline 9, which is proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics. This is to ensure fairness and equity in the hearing process.
Allegations
[2] You allege that you cannot return to Colombia because you will be persecuted due to your sexual orientation as a gay man. You also allege that you cannot return to Colombia because you have received death threats from criminal groups such as the XXXX XXXX and some dissidents of the FARC, which is the FARC due to your activities as an LGBTQ1I+ human rights activist.
Determination
[3] I find that you are a Convention Refugee pursuant to Section 96 of the Immigration and Refugee Protection Act.
ANALYSIS
Identity
[4] I find that your identity as a national of Colombia has been established on a balance of probabilities by your testimony, your passport, and the documents you have provided contained in Exhibit 5, I believe.
Nexus
[5] I find that there is a Nexus to one of the five convention grounds, specifically your membership in a particular social group of gay men from Colombia. As such, this claim will be assessed under 96 of the Act.
Credibility
[6] Your testimony was credible, straightforward, and provided without hesitation. You testified that you have been in a same-sex relationship with XXXX since XXXX XXXX, 2015, a day which you said you have XXXX XXXX XXXX XXXX. You met XXXX on Grindr and later met physically in Trans Millennium, which is a public transport used in Bogota. You further described your engagement to XXXX in XXXX 2021, while you two were skydiving in Montreal. You provided a witness request by your partner who was willing to attend at the hearing to corroborate your testimony. I find that on a balance of probabilities, you have established your profile as a gay man living in Colombia and I am waiving the request for the witness request because there is not much I did not hear from your partner.
[7] You also testified that you do not have the support of your family members with regards to your sexual orientation and relationship with XXXX. You testified that the Colombian environment is homophobic, which has made you a victim of bullying, threats, and harassment.
[8] You testified that since 2017 you have been active in the LGBTQI+ community in Colombia, specifically with organizations such as the XXXX XXXX and XXXX XXXX where you XXXX and XXXX XXXX events promoting freedom and safety for the trans community. You testified that you received your first threat directly addressed to you in XXXX 2019. Subsequently, you stated that there were many more threats and pamphlets from the agents of persecution, which were compiled at the XXXX XXXX office for joint submission to the prosecutor’s office. You stated that you got no support from the prosecutors and that when you tried to make an independent report, your report was not accepted. You attributed the refusal of the prosecutors to your sexual orientation and the homophobic stance of the community.
[9] You mentioned that since your arrival in Canada, two of your colleagues, XXXX XXXX and XXXX XXXX have been assassinated in XXXX and XXXX 2021. And you fear that a similar fate might befall you. You stated that while in Colombia, XXXX was your partner when he came to do your nails and eyelashes, and XXXX was a friend of the XXXX XXXX XXXX. You explained that you could not get a letter of support from the XXXX XXXX because it has been a while and most of the people you knew there had moved on and the ones that could write it were reluctant to. I find your explanation reasonable considering you have been out of Colombia for a while, and I do not make any negative inference regarding that. Moreover, I find you credible and I have very little credibility concerns with regards to your identity and your profile.
[10] You have also provided more identification documents to confirm your identity, such as your Colombian ID, copy of your birth registration and your XXXX XXXX, which I accept as corroborative evidence of your identity. In consideration of your testimony, I find that you have established your subjective fear, and I believe what you have alleged on a balance of probabilities.
Objective Basis
[11] Exhibit 3, which is the objective basis from the National Documentation Package for Colombia subsequently referred to as the NDP, supports your credible testimony. Item 6.3 states that in Colombia, sexual relations between same-sex partners are in “not criminalized and are therefore illegal.” And the country decriminalized same-sex relations in 1981. Despite this, sources indicate that LGBTI people in Colombia face societal discrimination and abuse, and that a significant proportion of the Colombian population still have prejudices against the LGBTQ+ people.
[12] Also, the United States Department of State’s country reports on human rights practices for 2019 indicates that there were reports of sexual assault against the LGBTQI persons and that they face difficulties in the accessing the formal labor market. Item 6.6 also reports that for decades, LGBTQ+ persons in Colombia have been victims of violence motivated by their sexual orientation.
[13] According to the Bogota Post, over half of the transgender community know someone who has been killed because of their sexuality. Item 2.2 states that even though the government … in item 2.2, it reports that the Government of Colombia has taken steps to… even though the Government of Colombia has taken steps to create strong legal protections against discrimination on the basis of sexual orientation and gender identity, the human rights (inaudible 02:17:53) and civil society groups have raised concerns about the high levels of violence against the LGBTQ+ persons in Colombia.
[14] I will be muting the claimant just to be sure it is not interfering with my decision.
[15] In terms of armed groups or guerrilla groups being involved in violence against LGBTQ+ people, the Jurisdiction for Peace recognized that five LGBTQ+ persons were victims of abuse by FARC guerrillas, and armed soldiers, finding for the first time that gender-based persecution covers persecution based on sexual orientation and gender identity. In items 2.17, armed groups have reportedly sent threatening pamphlets alluding to a so-called social cleansing, which would apparently target among others, the LGBTQ+ population. In addition, those who defend the human rights of those belonging to the LGBTQ+ community are subject to death threats, violence, and abuse.
[16] Human rights defenders of the LGBTQ+ community have identified an urgent need to improve the protection provided by the National Protection Unit, which does not currently meet the specific needs of this category of defenders. The Organization of American States and the Inter-American Commission on Human Rights reported that in 2019, the LGBTQ+ community… the human rights… the LGBTQ+ human rights defenders in Colombia have constantly been victims of violence and structural discrimination, and that there has been a significant increase in the number of killings and threats made upon these human rights defenders. It is argued that this risk is heightened because of the double risk they face; specifically, their efforts to defend people who have historically been discriminated against and on the prejudice that against their sexual orientation or gender identity, as well as the lack of differentiated prevention and protection measures in order to guarantee the defense of the rights of this population. I find that based on the above objective evidence that your testimony and evidence is consistent and as such, I find that you have established an objective basis to your fear of persecution.
State Protection
[17] I find that you have rebutted the presumption of state protection with clear and convincing evidence that the authorities in Colombia would not be willing or able to provide you with adequate state protection. According to the item 2.2, the Ombudsperson’s Office of Columbia received 5 cases of rape and over 100 cases of gender-based violence by police officers, including slapping and verbal abuse, and victims included gay, lesbian, bisexual and transgender people. In item 2.1, the Attorney General’s Office reported an investigation into 185 killings of LGBTQ+ persons from 2008 to July 31, 2021, and most of the victims were transgender women. In consideration of the objective evidence and your testimony that you attempted to seek state protection by making complaints to state authorities that are meant to offer protection to their citizens, but these complaints were refused, and you continued to … were ignored, not refused, and you continued to received death threats. I find that you have rebutted the presumption of state protection and do not have adequate state protection should you return to Colombia on a balance of probabilities.
Internal Flight Alternative
[18] I have also reviewed internal flight alternative. I have also reviewed the documentary evidence and I find that the threat of harm to you extends to the entire territory of Colombia as sexual minorities. It further notes that the documentary evidence cited above indicates that Colombians who identify as LGBTQ+ people are singled out by illegal armed groups throughout Colombia. You originally lived in Bogota, one of Colombia’s largest cities, and you faced persecution and death threats as a result of your involvement and support for the LGBTQ+ community.
[19] The objective evidence specifically referring to Item 6.3 of the NDP, states that the situation is worse for LGBTQ+ people in rural areas in Colombia. However, the same item also states that most of the violent attacks recorded against the LGBTQ+ community have occurred in the country’s larger cities. In consideration of the objective evidence and your testimony, I find that you face a serious possibility of persecution throughout Colombia and there is no viable internal flight alternative for you due to your sexual orientation as a gay man and your profile as an activist for the LGBTQ+ community.
CONCLUSION
[20] My conclusion for the aforementioned reasons, I find you to be a Convention Refugee, and I accept your claim.
——— REASONS CONCLUDED ———