2024 RLLR 22

Citation: 2024 RLLR 22
Tribunal: Refugee Protection Division
Date of Decision: February 27, 2024
Panel: Candida Quinn
Counsel for the Claimant(s): Alima Racine
Country: Colombia
RPD Number: TC3-28610
Associated RPD Number(s): TC3-28611, TC3-28612, TC3-28613
ATIP Number: A-2024-01886
ATIP Pages: N/A

 

DECISION

 

[1] MEMBER:  This is my decision.  These are the RPD reasons for the decision in the claims of Mr. XXXX XXXX, Ms. XXXX XXXX, the first associate claimant and his spouse, and their two (2) minor children, XXXX and XXXX XXXX XXXX.  Together they allege citizenship in Colombia and claim protection in Canada under section 96 or 97(1) of the Immigration and Refugee Protection Act which I’m going to refer to as The Act. 

 

[2]                   Mr. XXXX, the PC, the principal claimant, served as designated representative for the two (2) children.

 

[3]                   The claimants allege harm from the Gaitanist United Self-Defense Forces of Colombia, or AGC, because the PC is an Indigenous social leader and has been designated a military objective.  Their written allegations can be found in Exhibit 2 and 4.1.  As the allegations of the three (3) female claimants relate to their gender, I’ve considered and applied the IRB Chairpersons Guideline 4 concerning gender related claims. 

 

[4]                   I find that the claimants are each Convention refugees as they face a serious possibility of persecution in Colombia.  My reasons are thus. 

 

[5]                   First, with respect to the threshold issue of identity, on a balance of probabilities the claimants have established their personal and national identities through their testimony and by a copy of their Colombian passports at Exhibit 1. 

 

[6]                   Next is nexus.  The claimant’s allegations support the finding of a nexus to an enumerated Convention ground; specifically the PC alleges that he is of Indigenous ethnicity and a member of the particular social group of social leaders or human rights defenders. 

 

[7]                   The associate claimants allege harm as members of the particular social group of family of Indigenous persons and human rights defenders as the PC has been designated a miliary objective by the agents of harm. 

 

[8]                   Now I turn to credibility.  A claimant’s testimony is presumed truthful absent an evidence-based reason to doubt it.  The claimants today are a family of two (2) parents in their 40s and their two (2) minor daughters.  The PC is from an Indigenous reserve of about 300 persons in (inaudible), the XXXX people, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX people, part of the larger Sikuani family, S-I-K-U-A-N-I.  He submitted a document from the research showing this, it’s at Exhibit 4.2 document 2.  The reserve is on a map of Colombia’s Indigenous communities in item 1.4 of the National Documentation Package, or NDP, dated August 31st 2023 found at Exhibit 3.  The family lived in Bogota before leaving the country. The PC ran a XXXX XXXX business and has a XXXX XXXX education.  The first AC, his wife, was a XXXX XXXX XXXX for a XXXX XXXX and has a XXXX XXXX.

 

[9]                   The PC offered the bulk of the testimony, and it was responsive and spontaneous and very clear.  I detected no inconsistencies, contradictions, or omissions between it and the written allegations or other documentation.  The PC was able to fill in Basis of Claim and Basis of Claim amendment allegations and to switch topics and time periods easily.  The claim was thoroughly documented with authentic looking probative documents. All were given full weight. 

 

[10]                   The PC’s father had been one of the XXXX XXXX of the reserve, so the PC feels it important to maintain his connection with his Indigenous roots and the family’s role in the tribe.  The PC has long advocated for Indigenous rights.  Since 2012, he has been instrumental in developing successful projects to aid marginal persons including Indigenous persons. 

 

[11]                   He testified in detail about the XXXX XXXX XXXX XXXX XXXX, a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the claimant submitted a letter to Exhibit 4.2, document 17, from XXXX XXXX XXXX.  In the process of preparing for XXXX XXXX XXXX XXXX XXXX, the PC attended meetings with Indigenous communities including his own.  He was aware that these communities had been infiltrated by illegal armed groups as he testified that this is normal in Colombia.

 

[12]                   On November 3rd, 2022, the PC got a phone call from the senior capitan or leader at his reserve.  The reserve had received a written death threat form the AGC and the PC’s name was on it.  A copy of the threat is at Exhibit 4.2, document 9.  In it, the AGC denounced communists and declares seven (7) social leaders to be military objectives including the claimant.  Two (2) of the leaders named have been assassinated he testified.  He provided the obituary of one (1) at exhibit 4.2, document 9.

 

[13]                   The family left Colombia together on XXXX XXXX, 2022, passing through the United States. They entered Canada on XXXX XXXX, 2022, to make their claims. 

 

[14]                   I find that the presumption of truthfulness has not been rebutted, that the principal claimant is on a balance of probabilities an Indigenous human rights defender and that the AGC illegal armed group has threatened the family by naming him a military objective.  I further find that the claimants have demonstrated subjective fear of returning to their country for these reasons. 

 

[15]                   Now I turned to the well-foundedness of that fear. The claimants must demonstrate an objective underpinning to their subjective fears, and I find that they do today.  The agent of harm here, the AGC, has targeted the PC’s as a military objective because of his defence of his Indigenous community and of other marginalized Colombians.  Organized violence is widespread in Colombia and the AGC or Gulf Clan as it is also known, is one of the country’s most powerful criminal organizations.  Information about it can be found at Exhibit 3, item 7.2 and 7.26, among others. 

 

[16]                   A 2017 IRB report describes the AGC as the main military successor group in Colombia and states that it “interferes at the national level.”

 

[17]                   The IRB cites a 2017 INDEPAZ report naming the group as the “structure with the biggest presence” in Colombia, one that “uses a strategy of patronage of local gangs, micro trafficking, hired killings and extortion, among others, to consolidate its presence.”

 

[18]                   In 2016, actions by narcomilitary groups such as the AGC included drug trafficking, control of mining areas, money laundering, smuggling, extortion, contract killings, confrontations with public security forces and assassinations of police officers and actions against the civilian population including threats against and murders of social leaders and human rights defenders. 

 

[19]                   An Amnesty International campaigner stated in 2017 that the use of threats, killings, and other forms of violence is a common tool to achieve their objectives.  Many of their targets are unit leaders, trade unionists, human rights defenders, land and environmental activists, and Indigenous afro descendant and peasant farmer leaders in communities, many of whom live in areas rich in natural resources and which are therefore of political and economic interest to such groups; that’s from Exhibit 3, item 7.2, section 4. 

 

[20]                   Amnesty International at item 7.37 corroborate a desire by criminal groups such as the ones that have targeted the claimants, criminal groups they see as an annoyance or obstacle to their economic objectives.  Once the annoyance or obstacle is removed, the target may or may not be tracked but having been declared a military target as the PC has been, significantly raises the risk of harm.  

 

[21]                   An August 2023 IRB report at item 7.21 states that a person declared a military objective has their life at risk and that this threat extends to family members.  Indigenous community members and human rights defenders such as the claimant are among the profile subject to that military objective designation. 

 

[22]                   Given this evidence, objective evidence, I find that the claimants face a serious possibility of persecution should they remain home and that their subjective fear, should they return home, excuse me, and that their subjective fears are well founded. 

 

[23]                   Now, about state protection.  A state is presumed capable of adequately protecting its own citizens except when in complete breakdown and a claimant from a democratic country may only rebut this presumption by clear and convincing evidence.  The presumption does apply to Colombia. 

 

[24]                   The PC reported the death threat against him to police the same day he heard about it seeking protection. He has received two (2) e-mailed responses, neither of which contained an offer of protection for himself or his family and no resolution to the case. 

 

[25]                   An August 2023 UNHCR report at item 1.7 reviews state protection and notes that Colombia is considered one of the most dangerous countries for human rights defenders.  It reports that human rights defenders are subjected to threats, forced disappearances, killings, forced displacement.  Victims include leaders of ethnic communities, leaders of communities, youth, peasants, and victims’ organization, organizations, excuse me, and defenders of restitution for marginalized and displaced people. Attacks are committed, often committed inside victim’s homes and family members of human rights defenders have also been targeted. 

 

[26]                   According to a 2020 IRB report on mechanisms of state protection in Colombia, item 10.8 of Exhibit 3, the government does try to protect social leaders but despite this, and according to the International Crisis Group, “a number of social leaders” have stated that protection measures “exacerbate the threats they face.”

[27]                   For example, a common state response while awaiting a determination on more permanent security measures is to conduct regular police patrols around the target’s home potentially highlighting the person needing protection as an informant and actually raising the risk of retaliation.  As well, the threat of being found and harmed by corrupt law enforcement is a real one. 

 

[28]                   The U.S. State Department reported that in 2022, this is at item 2.1, there were numerous reports of government corruption during the year, particularly at the local level and revenues from transnational organized crime exacerbated it. The UNHCR states in item 1.7 that impunity for such crimes, corruption and crimes, is high. 

 

[29]                   By March 2023, according to the UH, UNHCR at item 1.7, 8.5 million persons were registered as internally displaced because of events that took place after the conflict began in Colombia and “internal displacement also takes place at the individual level often due to the killing of a family member, threats, or extortion.”  I note that these are the people that the PC aided.  I find this to be clear and convincing evidence of inadequate state protection and that the claimants would not be able to turn to their own national government or operational, operationally adequate protection from the AGC.

 

[30]                   Finally, with respect to Internal Flight Alternative, or IFA, a claimant does not require Canada’s protection if he or she has an Internal Flight Alternative. For an IFA to be viable on a balance of probabilities, the claimants, claimant must first not face a serious possibility of persecution in the IFA location and secondly, that location must be objectively reasonable in the claimant’s circumstances.  No IFA was proposed today.  The IFA test fails here on the first prong. 

 

[31]                   The objective evidence cited shows that the agent of persecution, the AGC, probably has the means to locate the claimants anywhere in Colombia.  The group has declared the PC to be a military objective placing all four (4) claimants at risk of persecution.  There is therefore no safe place in Colombia for them. 

 

[32]                   In conclusion and for the reasons given, I find each of the claimants to be a Convention refugee pursuant to section 96 of The Act and their claims are accepted

 

——— REASONS CONCLUDED ———