2023 RLLR 178
Citation: 2023 RLLR 178
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2023
Panel: Corey Nash
Counsel for the Claimant(s): Dean D Pietrantonio
Country: Colombia
RPD Number: VC3-03898
Associated RPD Number(s): N/A
ATIP Number: A-2024-00894
ATIP Pages: N/A
DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX XXXX (claimant). The claimant is a citizen of Colombia and claiming refugee protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA). [1]
[2] In hearing and assessing this claim, I have considered and applied the Chairperson’s Guideline 4 on Gender Considerations in Proceedings Before the Immigration and Refugee Board,[2] by taking an intersectional approach into considering the historical, social and personal context of the claimant’s experience throughout this decision.
ALLEGATIONS
[3] The claimant’s allegations are contained in her Basis of Claim (“BOC”) form[3], narrative, testimony and corroborative evidence submitted in support of the claim. In summary, the claimant, who self-identifies as Afro-Colombian, was a XXXX XXXX at the time, was also a volunteer with the XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Colombia. One purpose of the organization was to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. “XXXX XXXX XXXX XXXX XXXX XXXX.” was the moto used by the XXXX XXXX. XXXX XXXX organization’s goals directly conflicted with non-state armed groups such as the “Los Shotas” and works to XXXX XXXX XXXX XXXX XXXX that those groups have in the community.
[4] On XXXX XXXX, 2021, while doing work for the XXXX in Buenaventura, Colombia, the claimant, and two male colleagues were stopped by two armed men who identified themselves as being from Los Shotas (agents of persecution AOP). They were advised by the armed men that they were not allowed to be in the area without their authorization, that they should not only leave the XXXX but also the city. The armed men also threatened the claimant and her colleagues that if they did not comply, they would be killed, and their bodies would be chopped up. The claimant and her colleagues were then forced by the armed men to walk to a near by “chop house” where they were held for approximately XXXX XXXX and assaulted verbally and physically. The claimant was also assaulted sexually. They were also forced to pay XXXX XXXX XXXX XXXX XXXX Colombia pesos each to be released. Upon release they were reminded to leave the XXXX and the city, or they would kill them, dismember their bodies, and also kill their families. The claimant left the XXXX as a result of the threats.
[5] The claimant left Buenaventura on XXXX XXXX, 2021. On XXXX XXXX, 2022, the claimant returned to Buenaventura to visit family and vote in the presidential election. On the same day, the claimant received a call from her mother who advised her that armed went to her house to intimidate the claimant and threatened to kill the claimant and her mother. The armed men advised her mother that the claimant had no business in Buenaventura, and they were going to locate her and kill her because the claimant was disobeying them. The claimant returned to Cali, Colombia the next day.
[6] From XXXX 2022 until the claimant left Colombia on XXXX XXXX, 2022, she began receiving threatening phone calls and text messages on WhatsApp. The claimant was also receiving pictures of family members and pictures of the outside of her residence in Cali with the message asking if that was her house. The claimant was also receiving pictures of people she did not know saying that it was her sister or cousin. A few of the messages asked for the claimant to pay extortion but they did not mention the amount or how to pay.
[7] The claimant, accompanied by her mother, attended the Prosecutors office in Buenaventura on XXXX XXXX and made a denunciation. After they left the prosecutors office her mother received a call from the claimant’s paternal grandparents who live across the street from her mother. The claimant’s mother was informed that her house was attacked from the outside damaging the door, walls, and window. The claimant left for Cali where she made arrangements to leave Colombia. Her mother stayed with her brother in Jamundi, Colombia.
[8] The claimant believes that the AOP wants to take revenge on the claimant not only for her work with the XXXX but also for the claimant filing a denunciation against the AOP with the prosecutor’s office.
[9] The claimant is also of mixed heritage and considered Afro-Colombian by many people and as a result would face discrimination as a displaced single woman of Afro-Colombian descent.
[10] The claimant left Colombia on XXXX XXXX, 2022, by plane to XXXX XXXX XXXX and took a bus to XXXX XXXX where she crossed the US border by foot where she was detained by U.S. Immigration and taken to XXXX, Texas. On XXXX XXXX, 2022, the claimant was released at the airport at San Antonio, Texas and travelled to Houston then Seattle by air and walked across the border into Canada at XXXX XXXX on XXXX XXXX, 2022, applying for refugee protection in Canada on January 25, 2023.
DETERMINATION
[11] I find that the claimant is a Convention refugee, pursuant to section 96 of the IRPA, for the reasons that follow.
ANALYSIS
Identity
[12] I find the identity of the claimant as a national of Colombia has been established on a balance of probabilities by her Colombian passport, certified true copies of which are found in Exhibit 1,[4] as well as additional identity documents at Exhibit 5[5].
Nexus
[13] For a claimant to be a Convention refugee the fear of persecution must be by reason of one of the five grounds enumerated in the Convention refugee definition. The claimant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion.
[14] The claimant’s allegations form a next to the Convention on the grounds of political opinion where her work with the XXXX XXXX was directly opposed to the non-state armed group’s purpose. The purpose of the XXXX XXXX is to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX which is a political opinion that is diametrically opposed to the goal of the non-state armed groups to recruit young and vulnerable Colombians to join these criminal organizations.
[15] Intersectionality on the Convention grounds of particular social group (gender/single female) and race (Afro-Colombian) were also necessarily considered based upon the historical, social and political context of both the claimant and Colombia in general.
Credibility
[16] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. This is known as the Maldonado[6] principle. The claimant testified in a straightforward manner and there were no relevant omissions or contradictions between her testimony and the other evidence before me. The claimant did not exaggerate the details of her claim or guess if she did not know the answer to a question. The claimant was questioned regarding some inconsistencies between the claimants BOC and Denunciation. For example, the claimant had not stated in the denunciation that the AOP had touched her private parts or that the claimant and her colleagues would be killed and their bodies chopped up. The claimant did not try to make excuses in that regard and noted that she was very scared when she had made the denouncement.
[17] Per the Chairperson’s Guidelines on Gender considerations section 5, Trauma Informed Adjudication was taken into consideration in not questioning the claimant regarding the allegations of sexual assault further. Section 7.5 was also considered with regard to recalling specific details and recounting the events in both her Denunciation and BOC. The claimant’s explanation regarding any inconsistencies were reasonable under the specific circumstances of the fear she was under when she filed the Denunciation. I find the claimant to be a credible witness.
[18] The claimant submitted documentary evidence to corroborate aspects of her claim at Exhibits 4[7] and 5[8] including:
i. XXXX XXXX XXXX XXXX Student Identification Card.
ii. XXXX XXXX XXXX XXXX XXXX XXXX XXXX confirmation letter XXXX XXXX, 2022.
iii. XXXX XXXX XXXX XXXX volunteer confirmation letter XXXX XXXX, 2022.
iv. Buenaventura, Office of the Prosecutor Denunciation XXXX XXXX, 2022.
v. Photographs of Injuries.
vi. Screen shots of Text Messages.
vii. Witness letter from XXXX XXXX XXXX XXXX (undated).
[19] I have placed full weight on the claimant’s university identification and letter confirming the claimant was a student of XXXX, XXXX XXXX confirming the claimant’s volunteer work, the Denunciation confirming the claimant attended the prosecutor’s office and the screen shots of the Text Messages at the time of the events giving rise to this claim. This evidence has probative value and substantiates the claimants’ experiences in Colombia.
[20] I have placed no weight and no probative value on the pictures of the injuries or the witness letter from XXXX XXXX XXXX XXXX. The pictures are undated and have little probative value to confirm they are actually photographs of the claimant. The letter of a witness is not a sworn affidavit and there is no date on the document. Therefore, the authenticity or date of that document cannot be confirmed.
[21] I accept the claimants’ allegations that she has been targeted by unknown members of the Los Shotas non-state armed group in Colombia. I find that this organization has threatened the life of the claimant. Further, I find that they have subsequently taken action to locate the claimant who departed Colombia prior to any further incidents occurring to her.
Well-Founded Fear of Persecution
[22] The claimant self-identifies as Afro-Colombian and believes based on the color of her skin and due to her ethnic background of mixed heritage that she would be considered Afro-Colombian and would face discrimination as a result. In addition to her socio-economic status, the claimant was also targeted by non-state armed groups due to her political activities which were in direct opposition to those armed groups.
[23] As referenced above the claimant attested that she traveled to the United States (US) with the goal of seeking protection in Canada. When asked why she did not claim asylum in the US she advised that she does not believe the US would be a safe country for her, basing her opinion on news reports that the US will not provide the support to immigrants like Canada does where she would have peace and protection.
[24] The claimant arrived in Canada on XXXX XXXX, 2022, walking across the border at XXXX XXXX. Within a week of arriving to Canada the claimant contacted Legal Aid who appointed a lawyer for the claimant. The claimant attested that the lawyer that was initially appointed advised the claimant that they could not help her. As such another Legal Aid lawyer was appointed on XXXX XXXX, 2022, meeting first on XXXX XXXX, 2023, and filing the formal claim for protection on January 26, 2023, starting the refugee claim process. Based upon the totality of the foregoing the claimant has established a subjective fear of harm should she return to Colombia.
[25] Objective documentary information supports the claimant’s forward-facing risk of discrimination based on her race. Afro-Colombians face significant economic and social discrimination, poverty, social exclusion that is structurally engrained.[9] Afro-Colombians face “persistent structural and historical discrimination” and are widely viewed as the “enemy of Colombia’s economic progress.”[10] Statistics show that “of 14,380 women who experienced sexual violence in the armed conflict between 1958 to 2022, 87.03 percent were Afro-Colombian.”[11]
[26] The claimant has attested to the threats received by the Los Shotas non-state armed group in Buenaventura. The claimant believes that should she return to Colombia she is a target for the non-state armed groups for having filed a denunciation against the group and having been a XXXX XXXX for the XXXX XXXX. The AOP would have to make an example of the claimant who has acted against their interests to maintain their power and control. The claimant would not have the freedom to be able to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX without fear of serious harm or death. Relocating within Colombia was also a consideration of the claimant; however, she has attested that based upon her ethnic mixed heritage and Afro-Colombian descent she would face discrimination in addition to being a target of the non-state armed groups and would be subject to further discrimination as a displaced single women and based upon the foregoing would not be safe.
[27] Objective country condition information also supports the claimants subjective fear of harm from non-state crime groups. Buenaventura is a strategic port for many of these armed groups to operate and is not limited to the Los Shotas. The territories in which the FARC‐EP used to operate have been taken over by other armed groups, including the ELN, 12 FARC‐EP dissidents, paramilitary groups, and drug trafficking organizations. The presence of armed groups in these territories has led to confrontations over the control of areas that represent strategic sources of income, drug trafficking routes, and military advantage and, in the case of the dissidents of the Popular Liberation Army (Ejército Popular de Liberación, EPL), to press for a peace negotiation with the Colombian government. These contested territories are experiencing renewed violence, including an increase in forced displacement, particularly in the departments of Nariño, Cauca, Valle del Cauca (particularly Buenaventura), Chocó, Arauca, and Norte de Santander, and the region of Bajo Cauca.[12]
[28] In view of the claimant’s testimony, socio-economic profile, and the objective country condition reports, I am satisfied that she would face a risk of persecution in Colombia because of her work with the XXXX XXXX and because of her ethnic profile and gender.
State Protection
[29] I find there is clear and convincing evidence that state protection would not be forthcoming to the claimant in the circumstances that are unique to the claimant. Despite the Government’s efforts, the situation of human rights defenders continues to be of concern. The implementation of laws, policies, and other mechanisms designed to protect human rights defenders and other people at risk from human rights violations and abuses has often been poor. Colombia is considered one of the most dangerous countries for human rights defenders. Human rights defenders are subjected to threats, forced disappearances, killings, forced displacement, theft of personal information and information related to the projects they are participating in, arbitrary detention, attacks, criminalization, and sexual violence. Victims include leaders of ethnic communities; leaders of community, youth, peasants’, and victims’ organizations. [13] In the instant matter the claimant was an advocate for XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and therefore was both high profile and at heightened risk from those non-state armed groups.
[30] Further with respect to objective country condition information it is important to emphasize that members of the Colombian security forces have been accused “of collaborating with or tolerating the activities of criminal gangs, which included some former paramilitary members.”[14] With respect to corruption further objective information indicates that the police and security services are unreliable and between 2016 and early 2018, over 2300 police officers in Colombia were dismissed from their jobs for corruption allegations.[15] The functioning of the courts is undermined by corruption and extortion.[16]
[31] I find the claimants’ Afro-Colombian ethnicity poses an even greater intersectional challenge for the claimant in accessing state protection. Objective information indicates there is a “lack of political will” to implement measures to protect Afro-Colombians and that government efforts to protect Afro-Colombians are “disorganized.”[17]
[32] Given the objective evidence regarding overall corruption within the Colombian government and the state’s lack of interest in protecting Afro-Colombians, I find that the presumption of state protection has been rebutted, and that there is no effective or adequate state protection available to the claimant.
Internal Flight Alternative
[33] I find that the IFA test fails on the first prong, as the claimant is an identified target of non-state armed groups due to her political activities with XXXX XXXX. Objective information notes that criminal groups are more likely to track individuals who have a “high profile” or “continue to advocate for their communities” after being “displaced” or leaders, people who are “more likely to express their opinions” or those who are “more capable” of “infring[ing]” on the group’s interests, for example by “encroach[ing] on their territories” or “limiting their operations”.[18] The claimant meets at least three of these objective criteria having advocated for her community following displacement by filing a denunciation, a recognized XXXX with XXXX XXXX and having infringed on the groups interest by encroaching in their territory to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.
[34] I find, on a balance of probabilities, that the Los Shotas non-state armed group has both the means and motivation to locate the claimant anywhere in Colombia, based upon their persistence to locate the claimant both within Buenaventura and outside of Buenaventura.
[35] I find that the IFA test fails on the second prong, in that it would be unreasonable for the claimant to seek refuge in another part of the country due to her ethnicity as Afro-Colombian based upon the foregoing country condition information indicating widespread systemic racism towards those of Afro-Colombian descent.
[36] I find the claimant’s experience is consistent with the objective country condition evidence cited above regarding the “persistent structural and historical discrimination” Afro-Colombians face in Colombia.
[37] Accordingly, I find there is no viable IFA available to the claimant anywhere in Colombia.
CONCLUSION
[38] Based on the foregoing reasons, I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA, and I accept her claim.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board. Amended October 31, 2023.
[3] Exhibit 2. Basis of Claim Forms signed January 25, 2023.
[4] Exhibit 1, Claim referral information from CBSA/IRCC.
[5] Exhibit 5. Claimant Disclosure. September 05, 2023.
[6] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) at 305.
[7] Exhibit 4. Claimant Disclosure. September 01, 2023.
[8] Supra, footnote 5.
[9] Exhibit 3, National Documentation Package, Colombia, 31 August 2023, tab 13.1: Situation of Afro-Colombians, including treatment by society, authorities, and armed groups; ability to relocate to Bogotá, Cartagena, Barranquilla, and to other rural and urban areas; ability to access housing, employment, education, and health care; state protection and support services available (2021–August 2023) . Immigration and Refugee Board of Canada. 10 August 2023. COL201565.E. Pg. 7.
[10] Ibid.
[11] Ibid.
[12] Exhibit 3, National Documentation Package, Colombia, 31 August 2023, tab 1.8: Colombia: Fact-Finding Mission Report: Conflict Dynamics in the Post-FARC-EP Period and State Protection . Immigration and Refugee Board of Canada. March 2020. Pg. 11.
[13] Exhibit 3, National Documentation Package, Colombia, 31 August 2023, tab 1.7: International Protection Considerations with Regard to People Fleeing Colombia . United Nations High Commissioner for Refugees. August 2023. HCR/PC/COL/2023/01.
[14] Exhibit 3, National Documentation Package, Colombia, 31 August 2023, tab 2.1: Colombia. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023. Pg. 5.
[15] Exhibit 3, National Documentation Package, Colombia, 31 August 2023, tab 7.12: Colombia risk report. GAN Integrity. 4 November 2020. Pg. 2.
[16] Ibid.
[17] Supra, footnote 9. Pg 25.
[18] Supra, footnote 15. Pg. 2.