2023 RLLR 144

Citation: 2023 RLLR 144
Tribunal: Refugee Protection Division
Date of Decision: December 7, 2023
Panel: Rebecca Benest
Counsel for the Claimant(s): Wendy Aguilar
Country: Colombia
RPD Number: VC2-08962
Associated RPD Number(s): N/A
ATIP Number: A-2024-00768
ATIP Pages: N/A

                                      

DECISION

 

[1]             MEMBER: This is the decision of the Refugee Protection Division for XXXX XXXX XXXX. You are claiming to be a citizen of Colombia and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, or IRPA.

 

[2]             In assessing this claim, I have considered and applied the following guidelines, Guideline 4, gender considerations in proceedings before the Immigration and Refugee Board. I have used the guideline to ensure I substantively assess the claim and use trauma-informed questioning, for example. 

 

[3]             I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally. The written decision will come to you shortly and may be amended to include specific citations to exhibits and case law as needed.

 

DETERMINATION

 

[4]             I find that you are a Convention refugee on the grounds of race for the following reasons. 

 

ALLEGATIONS

 

[5]             Your allegations are contained in your BOC narrative and testimony but are summarized here. You are a citizen of Colombia. You fear ongoing racism and discrimination in Colombia on the basis of your race and also harm by armed groups in Colombia based on you and your brother’s work with the organization, XXXX, supporting Afro-Colombians in your region. 

 

[6]             You allege that an armed group has continually threatened you and your family and shot your friends as you were walking with them. Then telling you that you would be next. You allege to have faced continued racism and discrimination in Colombia, including not being able to access work and educational opportunities and spaces, being turned away or not allowed to enter spaces because of the colour of your skin and facing continuous verbal, psychological and threats of physical violence due to your race as Afro-Colombian. 

 

[7]             You allege that if you return, you will face continued persecution and discrimination due to your race along with harm leading to loss of life and cruel and unusual punishment by armed groups in Colombia. You allege that there is no state protection for you or an internal flight alternative.

 

Identity

 

[8]             Your personal identity and national identity as a citizen of Colombia have been established by your testimony and the supporting documents before me, including your genuine Colombian passport. 

 

Nexus

 

[9]             I find that you are a Convention refugee, pursuant to section 96 of IRPA, as you face a serious possibility of persecution in Colombia due to your race as Afro-Colombian. You allege that you fear retaliation and harm from an organized criminal group in Colombia. From that perspective, your claim could be considered under section 97(1) as you fear becoming a victim of a criminal group. It does not appear that you were targeted for this violence exclusively due to your race. Although I note that it was, in part, related to your involvement with XXXX, an organization to support Afro-Colombians. 

 

[10]        However, as a Board Member, I have an obligation to assess the totality of the evidence before me. This includes your underlying profile as well as the circumstances that directly lead to you fleeing Colombia and claiming asylum. This also includes the objective evidence on file as to the treatment of Afro-Colombians in Colombia and their persecution based on race by society at large, including armed groups. I find your allegations, therefore, have a nexus to the Convention ground of race and I have assessed this claim under section 96. 

 

Credibility

 

[11]        Claimants benefit from the presumption that their allegations are true. In this case, there were no omissions, inconsistencies or other irregularities in the evidence that were not reasonably explained. Your testimony was spontaneous, responsive to questioning, knowledgeable and unrehearsed. 

 

[12]        You spoke with clarity and emotion about your experiences with discrimination and racism in Colombia and the difficulty of the violence and threats of violence that you have experienced with no support from the police. You testified with convincing clarity about your work to support others in your community and the added violence and targeting. because of that. You spoke about how because of the colour of your skin, you and other Afro-Colombians are assumed to be thieves, not allowed in public places and without opportunities for education and work. And how, “They closed the doors on us for being black. They closed the doors on us for the work we do to protect our community. Because they are black — because we are black, they exclude us.” 

 

[13]        I note that your claim is supported by the following documents, your school certificate, a letter from the organization XXXX, confirming your membership and involvement and photos, the positive RPD decision of your brother, documents on the disappearance of friends from XXXX and known social leaders in your area, a medical document confirming your — that your friend was shot, a document confirming your clinical history of XXXX, an affidavit from your mother, your XXXX 2018 police report and several articles on country conditions for Afro-Colombians. I have no reason to doubt the authenticity of any of these documents and they corroborate core elements of your claim. I, therefore, assign them full weight.

 

[14]        Accordingly, on the whole, in terms of your general credibility, I have found you to be a credible witness and I, therefore, accept what you have alleged in your oral testimony and Basis of Claim form. Namely, that you have experienced violence and immense discrimination due to the colour of your skin throughout your life. You have experienced violence and threats of violence starting in 2017 from armed groups due to your support of your community and have seen friends and family members shot and disappear, including in your presence. 

 

[15]        In XXXX 2022, your friend was shot several times next to you and you were told to, “You are next.” You made a police report in XXXX 2018 and your friend’s family made another police report in 2022, but both reports were never followed up on. Police offered no support or investigation and you never received protection. 

 

[16]        Your subjective fear is established by your credible and corroborated testimony. 

 

Well-Founded Fear of Persecution

 

[17]        For the following reasons, I find you would face a serious possibility of discrimination amounting to persecution in Colombia based on your ethnicity as Afro-Colombian. 

 

[18]        When making a determination on whether the discrimination you face in Colombia rises to the level of persecution, I have considered the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, which states that discrimination may amount to persecution, where, “Measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities.” 

 

[19]        I find such is the case for the claimant before me. According to Item 13.1 of the National Documentation Package, or NDP, for Colombia, Afro-Colombians and indigenous Colombians are much more likely to be targeted and victimized by armed groups and criminal gangs. This is corroborated by Item 7.23 and 7.37, which state that Afro-Colombian and indigenous communities are disproportionately targeted by armed groups for both displacement and recruitment. 

 

[20]        You have experienced this personally with your work XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in your area, and the violence you and others have experienced due to this. You also spoke to the fact that Afro-Colombian youths are much more vulnerable to armed groups because of the systemic discrimination and persecution they face due to the colour of their skin. The particular targeting of Indigenous and Afro-Colombian communities results in raids of violence and human trafficking, described as a grave humanitarian crisis and a displacement and restriction of people’s movements. 

 

[21]        The evidence also establishes that Afro-Colombians face systemic hardships in Colombia. According to Item 13.1, they face persistent structural and historical discrimination, resulting in high levels of poverty and social exclusion. The same report indicates that there is an unspoken and yet socially shared antagonism against Afro-Colombians in Colombian society. Endemic racism impacts all areas of their lives from major events, like finding employment, and everyday events, like trying to enter a restaurant. The same report indicates Afro-Colombians are the worst affected on indicators of well-being, including literacy rates, income disparity, unemployment rates and poverty levels. For example, Afro-Colombian men in high professional positions, including directorships, only earn 1/5th of the wages of their non-Afro-Colombian colleagues. 

 

[22]        You have also experienced personally the systemic discrimination, including not being able to enter or having to leave many spaces due to your race, barriers to access education or police support, facing discrimination in the workplace, no access to work opportunities and many acts of violence that you have experienced. 

 

[23]        When I look at all of the evidence before me, I am satisfied that, in this case, the discrimination rises to the level of persecution. Persecution is the sustained or systemic violation of basic human rights demonstrative of a failure of state protection, and in this case, it can be said, on a balance of probabilities, the Colombian state is failing in its obligation to persons like you. 

 

[24]        I find that you face discrimination in all fundamental aspects of your life given your race as Afro-Colombian. You face discrimination in your ability to earn a living, to access healthcare, to access basic services, to move freely and to access state protection when needed. I find that these areas of discrimination cumulatively rise to the level of persecution. 

 

[25]        In sum, I find that you have established a well-founded fear of persecution from the community at large, including armed groups, as well as from the state. 

 

State Protection

 

[26]        In terms of state protection, states are presumed capable of protecting their citizens unless there is clear and convincing evidence otherwise. The evidence before me at the NDP for Colombia indicates that Afro-Colombians are legally entitled to the same rights and protections as other Colombian citizens. However, I find Afro-Colombians do not have adequate state protection at a practical level. There is a lack of political will to implement measures protecting Afro-Colombians from discrimination amounting to persecution.

 

[27]        According to Item 2.1, state efforts to prevent racist targeting by Afro-Colombians are disorganized, when they exist, and the government has failed to comply with orders in Colombia’s Constitutional Court directing the state to implement specific programs for Afro-Colombian communities. According to Item 13.1, programs that exist are symbolic and lack the resources to provide effective assistance. According to Items 7.23 and 7.37, Afro-Colombians and indigenous communities are disproportionately affected by inadequate state presence in their communities to such an extent that it has been described as state abandonment. 

 

[28]        Item 2.1 describes significant human rights issues in Colombia, including unlawful or widespread killing and widespread corruption by security agencies. Item 7.37 indicates widespread distrust of police in Colombia. Those that complain about police corruption often face reprisals and police are often complicit with perpetrators of organized crime. Lastly, according to Item 13.1, many Afro-Colombian have filed formal complaints of racial discrimination against individuals with the government in Colombia but the process is lengthy and difficult and rarely produces meaningful results. 

 

[29]        I find that despite the Colombian government’s stated intention to combat racial discrimination faced by Afro-Colombians, there are inadequate practical steps to provide relief from discrimination, and in practice, Afro Colombians continue to experience racial discrimination amounting to persecution without state protection. 

 

[30]        You have also experienced the lack of state protection personally. You reported the violence you were experiencing to the police in 2018, asking for support, and were not offered any measures of support or protection at any point since then. 

 

[31]        I, therefore, find the presumption of state protection has been rebutted in this case. 

 

Internal Flight Alternative

 

[32]        I find that there is no viable internal flight alternative available to you as you would face a serious possibility of persecution throughout Colombia. The evidence I have cited establishes Afro-Colombians face racial discrimination amounting to persecution throughout the country. I do not find you would be able to relocate within Colombia to a place where you would not face a serious possibility of this discrimination amounting to persecution. And I, therefore, find there is no viable internal flight alternative available to you. 

 

CONCLUSION

 

[33]        Based on the totality of the evidence and my analysis above, I find you to be a Convention refugee and I accept your claim. 

 

 

——— REASONS CONCLUDED ———