2023 RLLR 251
Citation: 2023 RLLR 251
Tribunal: Refugee Protection Division
Date of Decision: December 18, 2023
Panel: Andrew Montague
Counsel for the Claimant(s): Temitope T Ayodele
Country: Colombia
RPD Number: TC3-28055
Associated RPD Number(s): TC3-28050, TC3-28053
ATIP Number: A-2024-01360
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision in the refugee claims of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX. As noted at the beginning of the hearing, I have made an administrative change to the principal claimant, so the file number is now TC3-28055. The claimants alleged to be citizens of Colombia and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I have considered the testimony of the evidence in this case, and I’m ready to render my decision orally.
[2] The claimants’ explanations are provided in detail on the Basis of Claim forms contained in Exhibit 2 and the BOC amendments found in Exhibit 5. In summary, the claimants alleged they cannot return to Colombia as they fear persecution at the hands of the AGC, which are the Autodefences Gaitanistas to Colombia, G-A-I-T-A-N-I-S-T-A-S. The principal claimant alleges that in addition to working full-time jobs, her and her husband sold XXXX XXXX on Facebook as a side business. The principal claimant alleges that this side business got the attention of the AGC and she received a call from them on XXXX XXXX, 2022, demanding an extortion payment of XXXX XXXX pesos. Before the claimants can make a payment, they received a pamphlet with a picture of the principal claimant and her daughter on it with a threat to declare them as military objectives and kill them if they did not pay. The claimants agreed to pay XXXX XXXX pesos and made the payment to the AGC on XXXX XXXX, 2022. On XXXX XXXX, 2022, the principal claimant’s husband filed a complaint with the Attorney General’s Office, which was the first of many complaints filed by the claimants that were ignored by the authorities. The claimants then decided to create a Facebook page dedicated to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX of the AGC for extortion payments. While a small group, it was noticed by the AGC, who demanded they be taken down for the claimants and that they make another payment of XXXX XXXX pesos. The claimant made the pay the payment but did not take the page down initially. On XXXX XXXX, 2022, the AGC informed the claimants that they were aware that they had not complied with the ADC’s demands to take the Facebook page down and once again demanded that the claimants take the page down.
[3] The claimants moved, however, they were located with the AGC on XXXX XXXX, 2021, and the ADC demanded a payment of XXXX XXXX pesos. The claimants agreed to pay on XXXX of XXXX. However, when the associate claimant went to make the payment, they assaulted him and told him they would not kill him at the time because he was useful to them. The claimants sold their property and made one final payment to the ADC in XXXX of 2023. The claimants arrived in Canada on XXXX XXXX, 2023. The claimants allege that members of the family continue to receive threats from the AGC, who are actively looking for them. The claimants allege there is no state protection for them, nor is there an internal flight alternative in Colombia. I find the claimants are, pardon me, I find the claimants are refugees pursuant to section 97(1) of the IRPA because on the balance of probabilities they will be subjected personally to a risk of life or to a risk of cruel and unusual punishment treatment or punishment should they return to Colombia.
[4] The claimants have established their personal and national identity on a balance of probabilities through their Colombian passports. I find the claimants have not established a Nexus to section 96 as they do not have a well-founded fear of persecution based on one of the five (5) convention grounds, however, I find the claimants face a section 97 risk in Colombia. When a claimant swears to tell the truth of their allegations, this creates the presumption that those allegations are true unless there is reason to doubt their truthfulness. In this case, I find no substantial reason to doubt the truthfulness of the principal claimant. The principal claimant testified in a relatively straightforward and convincing manner and was able to answer most of the questions that were asked of them. There were no material inconsistencies between the principal claimant’s testimony and the documentary evidence before me. However, there is one credibility issue which I feel is necessary to address. The claimant testified that on XXXX XXXX, 2023, the AGC fired multiple shots at her in-laws parked car. The claimants provided photos of a car that was riddled with bullets in an attempt to establish this allegation I note that there are no photos of the license plate of the car and that the claimants cannot provide any documentation to establish that the car and the photos actually belong to members of their family. I asked the claimants why they did not provide documentation such as insurance or ownership papers, to establish this car belongs to family members. However, the claimants were unable to provide a reasonable explanation for this submission. I find that it is reasonable to expect the claimants to provide documentation to establish these significant allegations. This lack of objective documentation and the inability of the claimants to provide a reasonable explanation for the same regard leads me to find on a balance of probabilities that the claimant’s testimony in this regard was embellished with the aim to further advance the alleged racial persecution in Colombia. Nevertheless, this one issue was not on its own sufficient to be determinative, and as such, I largely believe the principal claimant has alleged in support of their claimants. Therefore, I still find the principal claimant was a credible witness on the whole. I have no reason to doubt the authenticity of the documentary evidence that the claimants disclosed and find the evidence supports and corroborated allegations.
[5] For example, the claimants disclosed letters of support from family members who remain in Colombia attesting to the issues that they have had with the AGC. The claimants provided copies of threatening text messages as well as the contents of the envelope from the AGC including the denunciation letter and the photos. We also disclose the complaints they made to the authorities, as well as their employment documents and Facebook pages showing their XXXX XXXX XXXX page, an example of the XXXX they sold as a side business. In order to establish their status as a convention refugee or persons in need of protection, the claimants have to show that there is a serious possibility that they would be persecuted if returned to Colombia. I find that the objective evidence supports their subjective fears and establishes a serious possibility of persecution for the claimants if they are forced to return to Colombia. My reasons are as follows. The National Documentation Package for Colombia Exhibit 3, at Tab 7.15 indicates that the AGC is one of the major guerrilla groups in Colombia with a presence in 140 municipalities across the country. Other sources and the NDP indicate that the group uses violence and intimidation against civilians and notes that the group has merchants, farmers, officials, and communities all living in a state of terror. Item 2.2 quotes a recent Human Rights Watch report which indicates that in 2020 civilians in various parts of the country suffered serious abuses at the hands of paramilitary successive groups, and the government has taken insufficient steps to protect them.
[6] Tab 7.21 notes that when a person is declared a military objective, it means that their life, physical integrity, and freedom are endangered, and that-, and that the threat also extends to their family. Being declared a military objective means that they have been issued a threat to be killed. Based on the claimant’s own history of persecution in Colombia, I sign that their claimants are objectively well-founded and that they face risks amounting to a serious possibility of persecution in Colombia. I find the claimants’ subjective fear of being harmed in AGC-, by the AGC should they return to Colombia is supported by the objective country condition evidence. I further find the claimants have established an objective basis for their subjective fear. There’s a presumption that unless in complete breakdown, States are capable of protecting their citizens, the objective evidence has demonstrated that there are swift and severe consequences for those who go to the police seeking state protection against criminal groups. The reports establish the inability of Colombian authorities to provide protection to those facing threats from gangs and guerrillas. Tab 7.37 notes that it is really hard for those targeted by criminal groups to access effective protection from the State due to a very high threshold for eligibility. If there must be a certain amount of public exposure, for example, one must be a known leader of a public group or organization to gain access to state protection. The Panel finds that none of the profiles of the claimants fall within the high threshold outlining the NDP for obtaining state protection. This is further shown to be true by the fact that the claimant obtained-, attempted to obtain state protection on several occasions, but were denied. Therefore, in this case, I find that there is no adequate state protection for the claimants in Colombia and the claimants have rebutted the presumption of state protection.
[7] The final issue before me is whether the claimants have a viable IFA in Colombia where they can live safely from the reach of the agents of persecution. I find that there’s no safe place in Colombia where the claimants would be able to be immune from the AGC’s reach as the objective evidence notes that they can target-, track targets across the entire country. Furthermore, as I stated earlier, the Panel has found that state protection is denied by the claimants. Therefore, given the means and motivation of the AGC to pursue the claimants that are all of Colombia, I find that claimants do not have a viable IFA in Colombia. After careful consideration of all the evidence, including documentary evidence filed by the claimants, oral testimony, objective evidence in the National Documentation Package, and submissions by Counsel, I find that the claimants are persons in need of protection pursuant to section 97(1). Accordingly, the claims are accepted.
——— REASONS CONCLUDED ———