2023 RLLR 89
Citation: 2023 RLLR 89
Tribunal: Refugee Protection Division
Date of Decision: December 7, 2023
Panel: Ademiju Olatunji
Counsel for the Claimant(s): Kirk W. Olearnek
Country: Colombia
RPD Number: VC3-07174
Associated RPD Number(s): VC3-07181
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division concerning the claim of XXXX XXXX XXXX XXXX, the primary claimant, and XXXX XXXX XXXX XXXX, the minor claimants, both citizens of Colombia. The claimants are claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act. In this proceeding, the principal claimant acted as a designated representative for the minor claimants, pursuant to subsection 167(2) of the Act, that is the Immigration and Refugee Protection Act, and rule 23 of the Refugee Protection Division rules. The minor claimant was not present at the hearing. The Panel heard the claims jointly pursuant to rule 55 of the Refugee Protection Division rules. The principal claimant is the mother of the minor claimant.
ALLEGATIONS
[2] The claimants allege threats to their lives by a criminal group called Fuerzas Armadas Revolucionarias de Colombia, that is FARC, because the primary claimant’s ex-partner refused to be recruited into the group. The primary claimant, in her Basis of Claim narrative and in her oral testimony, stated that her early years as a child was spent fleeing from FARC, who targeted her family because her father, who was a member of FARC, disassociated himself from the group. She was raised in the care of nuns, including her godmother, who ensured she had a good education and kept her safe until she turned 18. She further claimed that her relationship with her ex-partner put her in danger of FARC members again because her ex-partner refused to be recruited by FARC. After a series of contacts and escape from FARC members, she decided to quit the relationship with her ex-partner in the hope that going separate ways will keep FARC members off her tail and the tail of the minor claimant, who is the child of both the primary claimant and her ex-partner. However, FARC members continued to search for her and continued to threaten her and her son they will kill them both if they do not find the principal claimant’s ex-partner.
DETERMINATION
[3] The Panel finds that the claimants are Convention refugees pursuant to section 96 of the Act, as the claimants will face a serious possibility of persecution in Colombia due to their ethnicity as an indigenous Colombian, in the case of the primary applicant, and an Afro-Colombian in the case of the minor claimant.
ANALYSIS
Identity
[4] The Panel finds that the personal identities of the claimants as nationals of Colombia are established on a balance of probabilities by copies of their Colombian passports submitted to the Board.
Nexus
[5] Regarding nexus, the claimants allege that the claimants fear harm from an organised group named FARC in Colombia. The claimants also allege that they would face discrimination in Colombia. One (1) way to perceive these claims would be to consider them under section 97 of the Act, as the claimants fear becoming victims of a criminal group. It does not necessarily appear that the claimants were targeted for the violence and the harm specifically due to their ethnicity. However, the country evidence before me establishes, for example, at Tab 13.1, that Afro-Colombians and indigenous communities are more likely to be victimized by organized criminal groups in Colombia. The primary claimant also described, both in her testimony and in her narrative, how she had experienced harmful racial discrimination in Colombia amounting to persecution. The Panel has an obligation to assess this on the lying profiles, as well as the circumstances that led the claimant to flee Colombia and to claim asylum in the first place. The Panel finds, on a balance of probabilities, that the threats the claimants have suffered in Buenaventura and Bucaramanga stem in part from their indigenous and Afro-Colombian ethnic background, which makes the claimants disproportionately attractive and vulnerable targets for harm by criminal gangs.
[6] The Panel thus finds that the allegations do have a nexus to the Convention ground of race. As such, the Panel has assessed their claims under section 96 of the IRPA. That is the Immigration and Refugee Protection Act.
Credibility
Failure to Claim in Mexico and US
[7] The Panel notes that the claimants traveled through Mexico and the United States and did not make a refugee claim in both countries. When asked why, the principal claimant explained that they did not make a claim for protection in Mexico because her ex-partner was kidnapped in Mexico, and because FARC has strong business in Mexico. As such, it did not cross her mind to ask for refugee status in Mexico. As regards not claiming in the US, the principal claimant stated that she wanted to come to Canada because her son’s father, that is her ex-partner, is in Canada and it was her ex-partner’s mom who provided her with funds to travel in the hope that she and the minor claimant will go to Canada where her son is. She stated that she only transited through the US and had no intention of staying there. The Panel notes that the claimants left Colombia for Mexico on XXXX XXXX, 2023, arrived in the US in XXXX 2023, and arrived in Canada on XXXX XXXX, 2023. This explanation seems reasonable in their alleged circumstances and therefore does not very significant concerns with respect to the subjective fear of persecution or the claimant’s credibility.
[8] Another element of credibility, the Panel finds the primary claimant to be a credible witness and therefore accepts what the primary claimant alleged in support of their claim. The principal or primary claimant testified in a straightforward manner, and there was no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me. The primary claimant testified about her relationship with her ex-partner, whom the FARC wanted to recruit. She testified about how three (3) men from FARC invaded her partner’s home while she was with him and his family in Buenaventura. The principal claimant also testified through her narrative about how she and the minor claimant fled to Bucaramanga, and how members of FARC trailed them and further threatened them. She testified about how she broke up and separated with her partner in the belief that that would stop members of the FARC from coming after her but how men of the FARC disbelieved her and still threatened her when they found her.
[9] She also stated how she and the minor applicant moved to Bogota in a bid to escape from the FARC member after the FARC members located them in Bucaramanga. The principal claimant also stated that while they registered with the registry of victims, they did not report the incidents to the police because they believed that the FARC worked in collusion with the police. Among the documents the claimants provided to the Board are letters from the principal claimant’s ex-partner and the ex-partner’s mom, and registration as victims of violence made by the principal claimant and her ex-partner. After reviewing the documents and hearing from the principal claimant, I have no reason to doubt their authenticity. The ex-partner of the primary claimant also gave his consent for the use of the documents you submitted for his earlier refugee application made in 2014. The Panel notes that the ex-partner was granted refugee status in 2014 because FARC members not only sought to recruit him but had killed both his uncle and his cousin because they were unable to find the primary claimant’s ex-partner.
[10] The Board further notes that the ex-partner of the primary claimant stated in his letter that he went back to Buenaventura in 2019 because he believed at that time that since the FARC had signed an agreement with the government on halting violence, it would be safe if he returned to Colombia. Even though the Panel finds this reasoning not to be reasonable in the light of the killings of the ex-partner’s family members prior to the approval of his refugee status in 2014, the Panel notes that the essence of this hearing is not to rule on the wisdom of the ex-partner’s decision in going back to Colombia, but to assess whether the claimants are refugees or persons in need of protection as defined by the IRPA. The Panel finds that there is nothing in the claimants’ testimony and documents provided in support of their claim which suggests that they did not experience what they are alleged to have experienced. As such, the claimants enjoy the presumption of truthfulness. What is more, the Panel notes that there was a ceasefire agreement between the government of Colombia and FARC in 2016, which the NDP at Tab 13.8 notes has not brought much benefits to Afro-Colombians in terms of the violence they experienced from armed groups.
[11] Based on the primary claimant’s straightforward testimony, coupled with the corroborative documentary evidence noted above, the Panel finds the primary claimant to be a credible witness and accepts her allegations as true. Specifically, the Panel finds the claimants to have established their fear of racism amounting to persecution in Colombia, and also their fear of being targeted by the FARC criminal group, on a balance of probabilities.
Well-Founded Fear of Persecution
[12] Based on the evidence before me, I find the claimants would face a serious possibility of persecution on account of their race as indigenous Colombian, in the case of the primary claimant, and Afro-Colombian in the case of the minor claimant. I find that the cumulative acts of discrimination rise to the level of persecution warranting protection. The Federal Court of Appeal in Canada (Citizenship and Immigration) v Munderere, 2008 FCA 84, at paragraph 42 writes, “These authorities make clear that the Board is duty bound to consider all of the events which may have an impact on a claimant’s claim that he or she has a well-founded fear of persecution, including those events which, if taken individually, do not amount to persecution, but if taken together, may justify a claim to a well-founded fear of persecution.”
[13] This line of reasoning continues to be followed by the federal court in Pava v Canada (Citizenship and Immigration), 2019 FC 1239, reported in CanLII, where the federal court stated, “The Federal Court Of Appeal and this Court have consistently held that a series of incidents of discrimination in different spheres of life, for example, education, healthcare, housing, or employment, may amount to persecution when considered in their totality. This requires an analysis of whether the discriminatory conduct is serious or systemic enough to be characterized as persecution.” The primary claimant’s ex-partner was the target of recruitment by a criminal gang, leading to the death of his uncle and his cousin. The primary claimant lived the first seven (7) years of her life fleeing from FARC due to the decision made by her own father, who was a FARC member, to leave FARC, and subsequently spent the next five (5) years of her life changing schools due to the fear of being found and killed by members of FARC. The primary claimants also gave oral testimony about the difficulty experienced by Indigenous people in accessing basic amenities, and the different treatments they face in Colombia. She further states that she believes her son, who has features of an Indigenous person, that is facial features, and is also dark-skinned, would face the kind of violence she and her ex-partner experienced in Colombia.
[14] The objective evidence with respect to discrimination against Indigenous and Afro-Colombians show that they face systemic discrimination in a number of different spheres of life, including access to clean water and healthcare, employment, systemic poverty and exclusion from society, and are disproportionately impacted by violent crimes. Tab 13.3 shows that many Indigenous people continue to be displaced, threatened, their minors recruited, and their women and girls raped under victims of crimes in Colombia. Tab 13.4 states that Indigenous people, who are about 3.3 percent of Colombia’s population, accounts for 6.6 percent of the total people displaced in Colombia as a result of armed violence. Tab 13.8 shows that the FARC and other paramilitary groups in Colombia have a history that spans more than 60 years and have caused the deaths of over 260,000 people, and the displacement of over eight (8) million people. According to Tab 13.8 of the NDP, many of these murdered and displaced people belonged to the indigenous Afro-Colombian and rural communities of Colombia. Tab 13.8 also shows that Indigenous and Afro-Colombians continue to be affected by the displacement and violence caused by armed conflicts, even after the 2016 peace agreements by the government and the FARC, and they also continue to face increased vulnerabilities caused by “Profound social disparities,” including, “high levels of unemployment, widespread poverty, and limited access to essential services such as healthcare.”
[15] Tab 13.1 states that millions of Colombian citizens identify as black or Afro-Colombians. One (1) recent survey estimates that Afro-Colombians make up almost 10 percent of Colombia’s population, while other researchers estimate that as many as one (1) in four (4) Colombians are Afro-Colombians. Colombia’s Afro-Colombian population is concentrated along the Pacific coast. Tab 13.1 also states that Afro-Colombians face, “Persistent structural and historical discrimination,” resulting in, “high level of poverty and social exclusion.” It further states that there is an unspoken, yet socially shared antagonism against Afro-Colombians by the rest of the Colombian society. Afro-Colombians suffer the worst conditions in terms of literacy, income, and employment, poverty, and general well-being. Most Afro-Colombians in the Pacific Region, where about 90 percent of Afro-Colombians live, have no access to potable water, electricity, healthcare, and food security. A majority of residents of one (1) Afro-Colombian major city have no access to water, garbage collection, and sewage. For that, I refer to Tab 13.1 of the NDP. According to Tab 2. 1, in that city, which is Choco, almost 80 percent of residents lived below the poverty line, compared to 32 percent of Colombia’s population as a whole. The Panel further notes that 32 percent includes the Afro-Colombian population, and the poverty rates for non Afro-Colombians would even be lower.
[16] Tab 2.15 shows that Afro-Colombian and Indigenous children have low rates for receiving scheduled vaccinations and a high risk of chronic malnutrition. Tab 13.1 shows that endemic racism faced by Afro-Colombians impacts even urban and middle-class Afro Colombians in all aspects of life, from major events like finding employments, to every day events like trying to enter a restaurant. Afro-Colombian men in highly professional positions, including directorships, earn only one (1) fifths of what their non Afro-Colombian colleagues earn. As a result of actions by armed groups in Buenaventura, the city now has the highest rates of forced displacement in Colombia, according to government data quoted by the UNHCR. See Tab 1.7 of the NDP. The UNHCR also states that violence perpetrated by armed groups disproportionately affects Afro-Colombians such as the claimants, and according to the agency, there has been an increase in violence and notably murders of Afro descendant individuals in areas in the Pacific coasts. According to another RIR at Tab 7.15, some active groups in Buenaventura have a reputation for committing atrocities in the city, including abducting and dismembering people. A Human Rights Watch report cited in the RIR states that this violence restricts residents’ movements, recruits children, extorts their businesses, and routinely engage in horrific acts of violence against anyone who defies their will.
[17] Also, with respect to the situation of actual Colombians in relation to paramilitaries, the Panel notes that the United Nations Humanitarian Needs Overview for 2022 echoes the UNHCR’s finding regarding the difficult plight of the Afro-Colombian population. It is estimated that about 1.4 million children, teenagers, and young adults, the majority belonging to farmers, Indigenous, and Afro-Colombian communities, have humanitarian needs of protection against the risk of recruitment and use of non-state armed groups, child labour, violence and sexual exploitation, displacement, deaths, mutilations, and other effects of accidents, particularly in Antioquia, Cauca, Choco, Narino, North Santander. See Tab 1.6 of the NDP for more information. On a wider level, the latest US Department of State report for Colombia at Tab 2.1 notes that violence, extortion, and murder by armed groups is a major problem in the country. Tab 2.1 states, and I quote, “Armed groups, as well as narcotic traffickers, are significant perpetrators of human rights abuses and violent crimes, and committed acts of extrajudicial and unlawful killings, extortion, and other abuses such as kidnapping, torture, human trafficking, bombings, restriction of freedom of movement, sexual violence, recruitment and use of child soldiers, and threats of violence against journalists, women, and human rights defenders.”
[18] Tab 13.1 shows that Afro-Colombians and Indigenous Colombians are much more likely to be targeted and victimized by armed groups and criminal gangs. This targeting results in rates of violence described as a grave humanitarian crisis, and restricted movements and access to goods, services, and livelihood. Tabs 2.3 and 2.15 show that Afro-Colombian and Indigenous communities are disproportionately targeted by armed groups for displacement and recruitment of children, and by human traffickers. The primary claimant was a target of violence at a tender age and is now also the target of violence due to her relationship with individuals whose membership the FARC gang sought. Considering all the evidence before the Panel, the Panel finds that the claimants would face a serious risk of racial discrimination as an Afro-Colombian and as an Indigenous Colombian, in the case of the primary claimants, if they return to Colombia. The discrimination may include violence from armed groups and criminal gangs targeting them, their community, and lack of access to employment and basic services. The claimants would not be able to participate in the Colombian society with a basic level of dignity based on their race as Indigenous or Afro-Colombians. The discrimination is persistent, pervasive, and serious, and amounts to persecution.
State Protection
[19] Except in situations where the state is in a complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption, the onus is on the claimant to establish, on a balance of probabilities, and through clear and convincing evidence, that their state’s protection is inadequate. The more democratic a state is, the harder it is to dismiss this presumption. The Panel finds that there is clear and convincing evidence before the Panel to rebut the presumption of adequate state protection in the claimant’s particular circumstances. The country reports from the National Documentation Package confirm that state protection in Colombia is not effective. As noted in the UNHCR report on eligible guidelines, the ability of the government to provide protection is severely constrained, both by lack of capacity as well as by corruption and complicity of state authorities. According to the US Department of State report, members of Colombian security forces are accused of collaborating with or tolerating the activities of organized crime gangs, which includes some former paramilitary members. For more information, see Tab 2.1 of the National Documentation Package.
[20] Such information is echoed elsewhere in the NDP, including the Colombian corruption report from GAN Integrity that indicates that police, the security forces, and the judiciary are whole unreliable and corrupt. See Tab 7.12 of the NDP. And regarding Buenaventura specifically, an RIR indicates that the Colombian state has a low level of effectiveness in the city, and that the inhabitants suffered the greatest vulnerability rates in the country. The RIR also notes that more than 2000 investigations into cases of disappearances and forced displacements had been opened, even though none had lead to convictions. On this, see Tab 7.15 of the National Documentation Package. The National Documentation Package on Colombia also notes that there is a lack of political will to implement measures protecting Afro-Colombians and Indigenous persons from discrimination amounting to persecution, and also to respond adequately to their needs. Tab 2.1 of the NDP indicates that state efforts to prevent racist targeting of Afro-Colombians is disorganized when it exists, and the government fails to comply with orders in Colombia’s constitutional courts directing the state to implement specific programs for Afro-Colombians. Tab 13.1 indicates that any programs that do exist are simply symbolic and lack resources to provide effective assistance.
[21] Tab 2.10 indicates that Afro-Colombians and Indigenous communities are disproportionately affected by inadequate state protection and presence in their communities, to such an extent that it is described as abandonment. Item 2.1 describes significant human rights issues in Colombia, including unlawful and widespread killings and corruption of security agencies. Another report at Tab 1.7 indicates widespread distrust of police in Colombia. Those that complain about police corruption often face reprisal. The Panel notes that the fear of reprisal is the reason the primary claimant and her ex-partner decided not to report FARC to the police. And lastly, the Panel will comment on Item 13.1 of the NDP, which indicates that many Afro-Colombians have actually filed formal complaints of racial discrimination against individuals within their governments, while the process turns out to be lengthy and difficult and rarely produces any meaningful results. The Panel finds that, despite the Colombian government’s declared intention to combat racial discrimination, there are simply inadequate practical steps to provide relief from discrimination, and in practice, Afro-Colombians and Indigenous Colombians continue to experience racial discrimination amounting to persecution without adequate state protection. The Panel therefore finds that the presumption has been rebutted.
Internal Flight Alternative
[22] The Federal Court of Appeal in Rasaratnam v Canada, Minister of Employment and Immigration, 1992 1 FC 706, developed a two (2)-pronged test when assessing internal flight alternative, which entails a consideration of two (2) matters. The RPD must be satisfied, on a balance of probabilities. That is one (1). There is no serious possibility the claimant will be persecuted or subjected personally to the risk of section 97 harm in the proposed IFA, and two (2), that the conditions in the proposed IFA are such that it would not be unreasonable, in all of the circumstances, including those particulars to the claimants, for them to seek refuge there. The Panel examined whether a viable internal flight alternative exists for the claimants. Based on the evidence on file, the Panel finds that the claimants would face a serious possibility of persecution throughout Colombia. The Panel has noted the claimants moved from Buenaventura to Bucaramanga, and then to Bogota, all in a bid to find a place to stay. The evidence is clear in the NDP documents cited above that Indigenous and Afro-Colombians face racial discrimination throughout the entire country. There is no place that they will not face racial discrimination that I find would amount to persecution, and there is no place that the Panel finds that they will be able to live with dignity that they are entitled to in all of Colombia. As a result, the Panel finds that there is no viable internal flight alternative for the claimants.
Conclusion
[23] The Panel finds that the claimants are Convention refugees pursuant to section 96 of the IRPA. Accordingly, the Panel accepts their claims.
——— REASONS CONCLUDED ———