2023 RLLR 139

Citation: 2023 RLLR 139
Tribunal: Refugee Protection Division
Date of Decision: December 15, 2023
Panel: Patrick Russell
Counsel for the Claimant(s): Sohana Sara Siddiky
Country: Colombia
RPD Number: TC3-16108
Associated RPD Number(s): TC3-16109, TC3-16110, TC3-16111
ATIP Number: A-2024-00768
ATIP Pages: N/A

                                      

DECISION

 

[1]             The claimants, XXXX XXXX XXXX XXXX (the principal claimant or PC), XXXX XXXX XXXX XXXX (the associate claimant, AC), XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX (the minor claimants), are citizens of Colombia and are seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

ALLEGATIONS

 

[2]             The claimants’ allegations are fully set out in their Basis of Claim (BOC) forms.[2] In summary, the claimants allege a fear of persecution from the armed group ELN (National Liberation Army), based on their refusal to cooperate with their demands to use the PC’s business as a front for smuggling weapons, and the claimants’ denunciations of the ELN to the authorities. Further, the PC alleges he has been named as a ‘military objective’ by the group, and is therefore unsafe anywhere in Colombia.

DETERMINATION

 

[3]             I find the claimants to be persons in need of protection, pursuant to subsection 97(1)(b) of the IRPA. I find, on a balance of probabilities, that the claimants would be subject to a personalized risk to their lives. 

ANALYSIS

Identity

[4]             I am satisfied, on a balance of probabilities, that the claimants have established their personal and national identities as citizens of Colombia, based on copies of their Colombian passports[3] and their oral testimony. 

Credibility

 

[5]             When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary. 

[6]             The claimants have been consistent and credible in their evidence. The principal and associate claimants have provided spontaneous detail in support of their allegations and have been straightforward in their testimony. There have been no relevant or material contradictions or omissions that would go to the core of the claim. I find the claimants to be credible witnesses and therefore believe what they have alleged in support of their claim.

[7]             On a balance of probabilities, the claimants have established that they were targeted for extortion by the ELN, at first due to the PC’s business. As part of his work, he ran regular trips from Bogota to Medellin. The ELN demanded he act as their smuggler, using XXXX XXXX XXXX to carry weapons to and from the two cities. The claimants reacted to the group’s increasing hostility and violence with greater and greater demands for police protection, and public denunciations of the ELN. These police reports were numerous, and well documented in the evidence disclosed to the board.[4] The claimants testified spontaneously with candid detail, and their testimony was consistent with the BOC forms and known country conditions.

[8]             In determining the claimants’ credibility, in addition to considering their oral testimony, I have also reviewed and considered the documents the claimants have provided to support their allegations.[5] The information in the documents is consistent with the claimants’ testimony and I have no reason to doubt their authenticity. 

[9]             Given all the above, I find the claimants to be credible witnesses and therefore believe what they have alleged. 

 

Personalized Risk to Life

 

[10]        In order to establish that they are persons in need of protection under subsection 97(1)(b) of the IRPA, the claimants must establish that, on a balance of probabilities, they would be personally subjected to a risk to their life or of cruel and unusual treatment or punishment and that this risk is not faced generally by the population.[6] 

[11]        While others in Colombia may be at risk of criminal acts, I find that the risk faced by the claimants is personal to them. The claimants refused to comply with the demands of the ELN, and reported them to the authorities. The danger the ELN posed escalated from threats of violence, to following their daughter to school, to the kidnapping and violent assault on the PC. Finally, a notice that the ELN considered the PC a ‘military objective’ was delivered to the claimants’ home. What they fear at this point is not generalized violence from lack of security in Colombia, but rather, they have become personal targets of the ELN. 

[12]        Given the above, I find, on a balance of probabilities, that the claimants have established a personalized risk to their lives, which is not faced generally by others in the country.

State Protection

 

[13]        The PC testified that he attempted to obtain state protection, but the authorities could not provide it. On XXXX XXXX, 2021, they went to the Prosecutor’s Office, and again in XXXX, on XXXX XXXX, and XXXX XXXX but no protection was forthcoming. Over time they escalated the complaints to the Ombud’s Office, the Specialized Investigative Unit of Bogota, the Victim’s Protection Unit, and the Attorney General’s office, all to no avail. Before fleeing Colombia, they made one final attempt to secure protection from the Soledad Prosecutor’s Office. They were told that there was nothing that could be done. 

[14]        Given the above, I find that the claimants have rebutted the presumption of state protection.

Internal Flight Alternative

 

[15]        I have also considered whether the claimants have a viable IFA in Colombia, particularly in Baranquilla or Cartagena. I find on a balance of probabilities, in the claimants’ particular circumstances, that they do not. They re-located within the city of Bogota several times, the PC closed his business, the daughter changed schools, but the threats continued and the ELN always found them. The PC testified that they briefly relocated to Soledad-Atlantico after leaving Bogota, only to be receive further threats on the phone. The PC further testified that the ELN would look for them in the proposed IFA cities because they had defied them by filing reports against them with the authorities, and the notice given that he was a ‘military objective’. As such, based on the evidence before me, I find, on a balance of probabilities, that the ELN would have the motivation to pursue the claimants across Colombia. 

[16]        As for means, the PC testified that the ELN has networks across Colombia and that they operate in the proposed IFAs. While I note that the objective evidence on this is somewhat mixed,[7] and there may certainly in circumstances where the ELN does not have the motivation and means to locate a person of interest, I find that in the claimants’ particular circumstances, such as continued threats after leaving Bogota, and the fact that the claimants reported the threats to the police, and importantly, the PC’s previous history of kidnapping by the ELN, are all factors that lead me to find, on a balance of probabilities, that the ELN would have the means and motive to find the claimants in the proposed IFAs. 

[17]        Given the above, I find on a balance of probabilities that there is no viable IFA for the claimants in Colombia. 

CONCLUSION

 

[18]        For the foregoing reasons, I find the claimants to be persons in need of protection pursuant to section 97(1)(b) of the IRPA. These claims are accepted. 

 

——— REASONS CONCLUDED ———

 

 

[1] Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended.

[2] Exhibits 2.1, 2.2, 2.3, 2.4.

[3] Exhibit 1.

[4] Exhibit 4, and documentary evidence accepted at hearing.

[5] Exhibit 4, 5.

[6] Guerrero v. Canada (MCI), 2011 FC 1210, at para. 26; Correa v. Canada (MCI), 2014 FC 252, at para. 74.

[7] Exhibit 3, item 4.4, 7.23, 7.35, 7.45