2023 RLLR 252

Citation: 2023 RLLR 252
Tribunal: Refugee Protection Division
Date of Decision: October 31, 2023
Panel: Allan Casimiro
Counsel for the Claimant(s): Justin Toh
Country: Colombia
RPD Number: TC3-28469
Associated RPD Number(s): TC3-28471, TC3-28472
ATIP Number: A-2024-01360
ATIP Pages: N/A

DECISION 

[1]                   MEMBER: This is the decision in the claims for refugee protection of XXXX XXXX XXXX XXXX, the principal claimant, or PC, his wife, XXXX XXXX XXXX XXXX, associate claimant, or AC, and their minor daughter, XXXX XXXX XXXX XXXX, a minor claimant, who claim to be citizens of Colombia and are seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, IRPA. The PC had been appointed as the designated representative, DR, for the minor claimant.

[2]                   The claimants’ allegations are fully set out in their Basis of Claim forms, BOC form, under Exhibits 2.1, 2.2, and 2.3. In summary, they fear members of the Revolutionary Armed Forces of Colombia, FARC, in particular the XXXX XXXX dissident group who had threatened them and had attempted to also extort money from them. At one (1) point, they wanted the PC to join their group. The PC and the AC had made numerous complaints to Colombian authorities. Given the situation they were facing, and the threats to their lives and safety, they decided to leave the country. They made their way to Canada, where they have family members. They made claims for refugee protection, and continue to ask for Canada’s protection.

[3]                   The Panel finds that the claimants are persons in need of protection pursuant to section 97(1) of the IRPA for reasons that follow. 

[4]                   Exhibit 1 contains copies of the claimants’ Colombian passports. The claimants’ personal and national identities as citizens of Colombia have been established on a balance of probabilities.

[5]                   The Panel finds that — the Panel finds the claimants have not established a nexus to a Convention ground. Their lives are at risk because they face retribution for not obeying a criminal organization’s demands, and also for making a complaint about them. Therefore, the Panel assessed their claims under subsection 97(1) of the IRPA. 

[6]                   Adult claimants both testified at their hearing. The PC provided the bulk of the testimony. Overall, the Panel finds them to be credible witnesses who testified in a spontaneous and straightforward manner with regard to the central elements of their claim. There were no inconsistencies or omissions which were not reasonably explained which went to the core of their claims. 

[7]                   The PC testified about the problems they encountered in Colombia and why they finally decided to flee their country. The claimants testified about their social work, which included XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The PC testified as to why they decided to leave Colombia and return to Cali, after briefly staying there with his uncle and family. They attempted to seek government protection on multiple occasions, as evidenced by numerous reports to the pestellia (ph) under Exhibit 5. Similarly, the claimants decided to make their way eventually to Canada, where they have family. As such, they did not make an asylum claim in the United States. 

[8]                   Based on the claimants’ credible testimony, as well as the documentation provided, the Panel finds that on a balance of probabilities they were targeted personally by members of the FARC, in particular the dissident group of — belonging to XXXX — sorry, the dissident group of XXXX XXXX XXXX. There is an ongoing threat to their lives at the hands of members of this group if they are to return to Colombia, due to their failure to comply with their demands, and also due to them reporting incidents to authorities. 

[9]                   As per Exhibit 3, 7.16, dissidents of the FARC remain active and continue to operate in the country. Armed criminal groups have evolved from demobilized terrorist organizations and right-wing paramilitary organizations. The Colombian government signed a peace accord with FARC in 2016. FARC members then moved to concentration zones to complete disarmament, demobilization, and reintegration. Nearly 12,000 ex-combatants continue to abide by the terms, despite some defection. In 2019, following the release of a high-profile member of the FARC by the government, dissident leadership made public announcements stating their abandonment of the process and their renewed vow to fight the government. 

[10]                   Given the nexus between transnational crime and terrorism, the use of terrorist-like activities, which includes kidnapping, bombing, and narco trafficking by those not participating in the peace accord, is possible. 2.1, Exhibit 3, states that as of October 2022, FARC dissidents — sorry, FARC dissident numbers had grown to approximately 5,200 due to new recruitment and some former combatants who returned to arms. 

[11]                   1.8, exhibit — sorry. Exhibit 3, 1.8, states that FARC dissident groups are reportedly engaged in extortion, kidnappings, deploying improvised explosive devices against security forces, selling (inaudible), controlling drug trafficking routes. Also, it reports that FARC dissidents are organized into national structures and independent groups. Most of the dissidents fall into the 1st Front, or Oriental Front, associated with Gentil Duarte, and second, (inaudible) structure. The 1st Front is the most important in terms of the numbers, and also territorial control. It considers itself to be the legitimate successor of FARC. The two (2) structures have a clear chain of command and respect hierarchy. The independent groups do not. They have presence or connections to FARC dissident groups in many regions, and FARC dissidents have taken control of resources of FARCS — former — I am sorry, have taken control of resources formerly belonging to the FARC. 

[12]                   Many groups maintain their leftist ideology and continue their struggle against the government and social order. They use a number of tactics which are in line with the customs of war, including having roadblocks, bombardments, attacks, and sabotage. To finance their fight, they engage in forced recruitment, extortion, illegal mining, and drug trafficking. Income from illegal economies sustain the groups, making them harder to eradicate. Exhibit 3, 7.22 to 7.34. 

[13]                   Therefore, the Panel finds the claimants’ risk to their lives have been established by — has also been established by the objective evidence. The threats to them are of a personalized nature, and not one (1) generally faced by others. 

[14]                   States are presumed to be capable of protecting citizens, except in situations where they are in a state of complete breakdown. In this case, the Panel finds that the claimants have rebutted the presumption of state protection. Exhibit 3, 1.7, indicates that although the government has made considerable efforts to enhance protection for victims of armed groups, their ability to do so in areas with strong presence of armed groups is limited due to lack of capacity and presence, as well as corruption and complicity by local and regional authorities. The claimants credibly testified that they did attempt to seek protection on several occasions. However, their lives remained at risk, and the agents of persecution were also aware of such attempts, which further angered them. 

[15]                   Exhibit 3, 7.37, indicates that the police only provide protection on a highly individual basis, and generally within urban areas. Also, it is difficult for those targeted to access state protection due to a very high threshold for eligibility. A certain amount of public exposure is required, such as for known leaders.

[16]                   Therefore, the Panel finds that operationally adequate state protection would not be available to the claimants. 

[17]                   Having considered the credible evidence given by the claimants, together with objective evidence of country conditions and state protection, the Panel finds that there is no viable internal flight alternative available to them in Colombia. Exhibit 3, 7.23, indicates that in Colombia, criminal organizations harass, extort, and even kill citizens and family members. The claimants briefly moved to Bogota, but this came to the attention of their agents of persecution. 

[18]                   Illegally armed groups continue to establish checkpoints on rural roads to establish their own curfews and movement restrictions in an effort to expand their control. International and civil society organizations also reported that illegal armed groups confined rural communities to roadblocks, curfews, car bombs, and improvised explosive devices in the areas where narcotics trafficking persisted. 2.1, Exhibit 3. Exhibit 5 actually contains an article about the existence of such checkpoints in Valle del Cauca. 

[19]                   Based on the above considerations, the Panel finds that this risk of harm for each of the claimants is found throughout the country. There is no viable internal flight alternative for any of them.

[20]                   Based on the totality of the evidence cited, the Panel finds that the claimants are persons in need of protection because, should they return to Colombia, they will face a risk to their lives or risk of cruel and unusual treatment or punishment, subsequent — sorry, pursuant to subsection (1) of 97 of the IRPA. Therefore, the claimants — their claims are accepted. 

——— REASONS CONCLUDED ———