2023 RLLR 135

Citation: 2023 RLLR 135
Tribunal: Refugee Protection Division
Date of Decision: December 5, 2023
Panel: Joseph Berkovits
Counsel for the Claimant(s): Mehreen Mulla on behalf of John W Grice
Country: Colombia
RPD Number: TC3-03844
Associated RPD Number(s): N/A
ATIP Number: A-2024-00768
ATIP Pages: N/A

DECISION

[1]             MEMBER: I am now going to give my reasons for my decision for claim number TC3-03844, XXXX XXXX XXXX XXXX, a citizen of Colombia. The claimant has claimed refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, or the IRPA.

[2]             Objective country conditions — I cited from items contained in the National Documentation Package, or the NDP, for Colombia, the August 31st, 2023 version, which are all referenced in Exhibit 3.

[3]             For the reasons below. I find that you, the claimant, are a person in need of protection pursuant to section 97(1) of the IRPA, and I therefore accept your claim.

[4]             Your allegations are, in summary, that you have been threatened with extortion and ultimately death by a paramilitary group known as Dissidents of the FARC, which is an acronym for the Fuerzas Armadas Revolucionarias de Colombia. And these threats have emanated as a result of your refusal to give in to their demands that you pay them extortion money, permit them to XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and share the proceeds of your XXXX with them for a business that you are planning in a rural area of Colombia, where this group was strong and able to exert control over the population.

[5]             Your personal identity as a citizen of Colombia has been established by certified copy of your passport. I therefore find that you have established your identity on a balance of probabilities.

[6]             Because I find that there is no nexus between your allegations and the five (5) Convention refugee grounds enumerated in section 96 of the IRPA, I find that your claim should be assessed under section 97(1) of the IRPA.

[7]             In terms of credibility, when a claimant swears or solemnly affirms that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their truthfulness. In terms of your general credibility, and in light of the evidence below, I found you to be a credible witness, and I therefore accept what you have alleged in your oral testimony and in your Basis of Claim form.

[8]             I also found that your corroborative evidence was reliable and trustworthy. As such, I have assigned it full weight in supporting your credibility in relation to your allegations.

[9]             In your detailed written narrative, and in your credible testimony today, you, the claimant, described how you resided in Bogota and endeavoured to start XXXX XXXX XXXX in a rural area of Colombia, in the municipality of XXXX, in the Department of Huila, where your mother-in-law was living and had a XXXX.

[10]        You testified credibly about how you started this business by buying XXXX XXXX XXXX XXXX XXXX, and then selling them to XXXX in Bogota. You described how your ultimate plan was to XXXX XXXX XXXX and to start to XXXX on your own.

[11]        You testified credibly about how on XXXX XXXX, 2020, you were approached by a group of armed individuals whom you realized were a dissident group of FARC. You testified credibly how you knew this to be the case because they were dressed in all dark clothing, what appeared to be something of a uniform, but not the uniform that any official army or government authorities would wear, and that you could see their firearms. And additionally, they identified themselves as such.

[12]        You testified credibly how these groups were known to be in control of this area, and it — and they made it clear to you that if you wanted to continue with their plans — with your plans to set up an XXXX XXXX, you must accept conditions that they set in order to continue your work. These conditions included paying them a sum of money, sharing a portion of your actual XXXX with them, and to permit them to XXXX XXXX XXXX that would be used in their illicit drug business. You detailed how you refused to cooperate and how, in turn, they made a death threat against you.

[13]        You testified credibly how you attempted to file a report with the local police authorities, who instead advise you not to file a complaint locally because these groups were so strong and so dangerous in the vicinity, but rather to file a report in Bogota. You also testified credibly that it was your understanding that the local authorities lived in fear themselves of these criminal groups.

[14]        However, when you returned to Bogota, you testified credibly that you were not able to make a report in person of these various serious threats, and that the online report that you were directed to make did not have a category that matched the threat or the type of risk that you were facing. Ultimately, you were unable to make a report in the wake of this initial report — initial threat.

[15]        When you returned to the rural area, you continued to purchase XXXX XXXX XXXX XXXX for sale in Bogota, but you were not able to pursue your plan of XXXX XXXX XXXX. By XXXX of 2021, while you were back in Bogota, you detailed how you were threatened by armed men on motorcycles who made death threats against you on the basis of you continuing your business without their authorization and without complying with their demands.

[16]        At this point, you made a denunciation in Bogota, but again, you were given no choice but to make it online. And you testified credibly that you only received an acknowledgment from the police in XXXX of 2022, at which point you had already left the country for your own safety. By way of corroboration, you provided a copy of the confirmation of the complaint to the authorities, which can be found in Exhibit 7.

[17]        You testified credibly that you had initially felt safer in Bogota because you could at least conduct some of your business there by phone. But after you were found and directly threatened in Bogota, this shattered your sense of safety in that you realized that these FARC dissidents must have connections throughout the country.

[18]        You testified credibly about how you started to make plans to leave the country after this second death threat, going to stay in what amounted to a state of hiding with your sisters in Cali, where you described that you were afraid to leave the house, except when it was early in the morning or late at night.

[19]        Before going to live with a cousin in Bogota, when you ultimately left for Canada via the United States, your daughter and your wife both provided detailed letters that corroborated the death threats that you received at the hands of this group. And these letters are to be found in Exhibit 7. Your daughter wrote in part that you received, “Death threats on two (2) occasions made by insurgent and dissident groups of the FARC guerrillas, which had not adhered to the peace process, and currently terrorize rural populations across the country.”

[20]        Your wife also set out in detail and in very corroborative detail, I might add, the history of the threats that you received, including about how these groups made it clear to you that you could not operate any XXXX endeavour without their permission, and how they made death threats against you if you did not do as they said.

[21]        As such, I find that you have established that you face agents of harm, namely dissidents of FARC militia who would likely have affiliates throughout the country. I find that these agents of harm have targeted you personally, and that you are not facing a generalized fear of harm shared by the general population of Colombia, but rather a personalized one directed against you, specifically, at the hands of these FARC dissidents.

[22]        I also find that you face a personalized and forward-looking possibility of harm from these agents of harm. You provided a letter from the doorman at the apartment building where you resided in Bogota. He described how in the months of XXXX and XXXX of 2021, “Suspicious looking people arrived at the entrance”, looking to speak to you, and asked him if he had any contact information for you. This letter is to be found in Exhibit 7.

[23]        A business neighbor in Bogota also provided a letter detailing how people came in XXXX of 2021 looking for you and who, “Looked suspicious.” This letter is to be found also in Exhibit 7.

[24]        Finally, and most tellingly, I find, as recently as in XXXX of 2023, one (1) of your sisters wrote in detail about how she was located and very seriously threatened by dissident members of this group, even though she was residing in a rural location some 30 minutes away from Cali, and an additional 16 hours away from where you were first threatened in XXXX.

[25]        In her detailed letter, as well as in her detailed report to authorities, which is to be found in Exhibit 7, she detailed how these armed men now additionally accused you of informing upon them to the police, and which gave them additional reasons to make death threats against you. As you testified today, even though your sister was offered some measure of protection from the police, she decided to move out of the vicinity all together, fearing for her safety.

[26]        I also must acknowledge the importance of your testimony about how you understood these death threats to be given to you within the context of being designated a military objective by these groups. Being designated a military objective, as will be demonstrated in the country conditions, brings an elevated level of forward-looking risk, and also implies that you could be targeted throughout the country by networks connected to these dissident FARC members.

[27]        Even though you passed through the United States on your route to Canada, I found that your testimony for why you did not claim asylum in that country was reasonable and credible. You testified credibly that you were able to leave Colombia on your preexisting US visa, but your plan had always been from the outset to claim asylum in Canada, where you understood you would face better circumstances. You also testified credibly that the legal advice that you were able to obtain in the United States confirmed your initial impression in this regard.

[28]        You also explained that your departure from the United States was delayed somewhat by the closing of the border on account of the COVID epidemic. Ultimately, I do not find that your failure to claim asylum in the United States undermines your credibility or a finding that you were in fear of harm by these agents of harm.

[29]        In terms of the objective evidence, I will be citing from item 7.18, 1.8, 9.4, 7.22, and 1.98 of the NDP. Objective studies of Colombia have detailed that even though the decades long armed conflict between the government and the Revolutionary Armed Forces of Colombia, or the FARC did come to an end of sorts with the signing of the 2016 peace treaty, Colombia’s days of armed conflict are far from over.

[30]        Studies have concluded that the FARC dissidents and other armed groups have filled the void created by this peace treaty. The territories in which the FARC used to operate have been taken over by other groups, paramilitary groups, and drug trafficking organizations, including FARC dissidents. As such, commentators have noted that the peace process in Colombia is only partially completed, as numerous armed actors are still present and in operation.

[31]        A committee of the Red Cross has observed that levels of violence in Colombia are still sufficient for the situation to be considered a conflict, and that it is too early to classify the situation to be one (1) of post-conflict. They also note that establishing peace will likely take decades.

[32]        In terms of the FARC dissident groups more specifically, according to objective observers, FARC dissidents have been starting to operate during the peace negotiations and have refused to demobilize, with much of their resistance to the peace treaty being caused by their refusal to give up the income that illicit activities such as illegal drug cultivation and other activities, such as illegal mining, brings to them. The FARC dissident members have been reluctant to leave their organization without recourse to alternate livelihoods, and this is why new recruits have continued to join.

[33]        Observers have also noted that many dissident groups of the FARC are more abusive than their previous predecessors within the FARC, as they are competing amongst themselves, sometimes brutalizing local communities to gain control.

[34]        In a more general sense, the FARC and other paramilitary groups are still seen to have a degree of control over Colombia with raids, forced disappearances, and kidnappings connecting to — connected to the FARC dissidents only decreasing by a limited extent, and with extortion continuing to be experienced throughout Colombia.

[35]        Given the presence of FARC dissident groups throughout Colombia, I find that the threat posed by the FARC dissidents has been objectively verified by country conditions. In light of the credible evidence and the direct threat that the claimant received on an individualized basis, I find that the threat posed by the FARC dissidents to the claimant in Colombia is of a personalized nature and not one (1) generally faced by others in the country.

[36]        In terms of state protection, I will be citing from items 10.3, 7.15, 7.12, 9.4, and 1.8 of the NDP. The Colombian government has been known to make efforts to curb the influence of criminal organizations, but objective sources have indicated that, on the whole, these efforts have not been successful.

[37]        A representative of Human Rights Watch that specializes in Colombia has indicated that the vast majority of victims of criminal gangs, and this includes paramilitary groups such as the FARC dissidents, do not receive protection. This representative explained that protection measures do not address the source of the threats, as authorities seldom investigate in this regard. Amnesty International notes that criminal gangs commit serious human rights violations, sometimes committed with the collusion or acquiescence of state security forces.

[38]        In a more general sense, the Colombian police is viewed by objective sources to have a moderate to high level of corruption, with police impunity being of particular concern. Furthermore, businesses report that police and security services from the state are unreliable. It has been noted that three (3) quarters of business executives receive significant corruption within the police, and that over three (3) quarters of businesses pay for private security. It has also been noted that two (2) out of five (5) Colombians perceive most police officers to be corrupt.

[39]        It has been documented that between 2016 and 2018, over 2,300 police officers in Colombia have been dismissed from their jobs for corruption. In 2011, the Colombian government created an agency called the National Protection Unit, or UMP. The UMP is responsible for protecting individuals, groups, or communities who are at a risk of — as a result of their activities in political, public, social, or humanitarian roles. It has been observed, however, that the UMP only manages to provide protection to a very low percentage of people who requested it.

[40]        It has been documented that people, even when they have been approved for protection measures, are killed while waiting for that protection to transpire. It is also noted that people who are not from these groups, such as the claimant, are unlikely to receive any support from UMP.

[41]        Country conditions, therefore, confirm much of the claimant’s evidence about the ineffectiveness of the police, as well as other state aid — institutions, as well as the degree to which criminal organizations such as the FARC dissidents have not only been able to avoid prosecution, but also have been known to collude with agents of the state.

[42]        Based on the evidence referenced above, I find that should the claimant return to Colombia, adequate state protection would not be available to him. As such, I find the presumption of state protection has been rebutted.

[43]        In terms of internal flight alternative, or IFA, the test to be applied whether there is a viable IFA is two (2) pronged. In plain language, the test comprises of a safety component and a reasonableness component. For the reasons that I am about to give below, I find that the test for IFA fails in its safety proponent — component, and that is enough for the IFA to fail in its entirety.

[44]        I find that the FARC dissidents in this case are likely motivated on a forward-looking basis to continue to seek to locate and harm you, the claimant. As the situation that your sister recently faced makes clear, only in XXXX of this calendar year, your agents of harm were able to demonstrate that they had the reach, as well as the ability to locate a close family member who was located some 16.5 hours away by car from the place that you are originally threatened, and to continue to make death threats against you.

[45]        Your sister also clearly stated that their motivation to harm you has now been made only stronger by their reference to one (1) of their members having been caught by the authorities, which is something that they directly blame you for. The fact that they blame you for one (1) of their operatives being caught is also, as you testified credibly, a powerful incentive for them to continue to view you as a military objective, given how seriously they view such matters, and the rarity of which — their operatives are actually being arrested.

[46]        Your agents of harm have also demonstrated their ability to find you by locating you and directly threatening you in your home city of Bogota, which is at a substantial distance, some four (4) hours’ drive away from your original targeted location.

[47]        I also acknowledge your credible testimony of how, if you were return — if you were to return to Colombia, you would be too fearful to tell either any of your family where you are located for fear that your family members might be contacted by FARC dissidents and then be compelled to disclose your whereabouts. And this would force you into an untenable situation where you would be living in what it would be tantamount to a state of hiding.

[48]        As already determined in the sections above, FARC dissidents are known to have a strong presence throughout all of Colombia, and this gives them the likely means to locate you throughout the country.

[49]        According to Colombia reports, in the wake of the demobilization of FARC, FARC dissidents have formed groups throughout Colombia. This is from Item 1.2.

[50]        Furthermore, the objective evidence has demonstrated that the state response to this organization is weak, and ineffective, and has been exacerbated by documented incidents of state collusion with this organization.

[51]        Furthermore, according to objective sources, when a person is declared to be a military objective, this means that their life, physical integrity, and freedom are in danger. And I cite this from Item 1.2. It is likely that relocation with Colombia is not an option for those who have been declared a military objective because paramilitary and guerrilla sub structures, such as the FARC dissidents, have extended vertical organizations and large networks. And I cite this from Item 7.21.

[52]        Therefore, given the personalized risk of harm that you would likely face throughout Colombia, I find that there is no location in Colombia where you can reside safely. I also find that this situation is compounded by the fact that there is likely no adequate state protection available to you in any of the proposed IFA locations, should you be found by your agents of harm. Therefore, I find that there is no viable internal flight alternative for you in your particular circumstances throughout Colombia.

[53]        In conclusion, based on the totality of the evidence, I find that you, the claimant, are a person in need of protection because should you return to Colombia, you will face on a balance of probabilities a risk to your life, or a risk of cruel and unusual punishment, pursuant to subsection 97(1) of the IRPA. Your claim is therefore accepted.

——— REASONS CONCLUDED ———