2024 RLLR 39

Citation: 2024 RLLR 39
Tribunal: Refugee Protection Division
Date of Decision: August 21, 2024
Panel: Ha Lu
Counsel for the Claimant(s): Antonio I. Williams (appeared for Adela Crossley)
Country: Colombia
RPD Number: TC2-26014
Associated RPD Number(s): TC2-26015
ATIP Number: A-2025-00128
ATIP Pages: N/A

REASONS FOR DECISION

[1] The claimants, XXXX XXXX XXXX XXXX (principal claimant), and his mother, XXXX XXXX XXXX XXXX (associate claimant), allege that they are citizens of Colombia and seek protection in Canada as Convention refugees under section 96 and as persons in need of protection under subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

[2] The panel applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC guideline).

[3] The claims were heard jointly as per Rule 55 of the Refugee Protection Division Rules.

ALLEGATIONS

[4] In summary, the claimants fear persecution and risk to their life at the hands of Fuerzas Armadas Revolucionarias de Colombia (or FARC) dissidents because they refused to comply with the FARC’s extortion demands. On XXXX XXXX, 2022, two armed men entered the principal claimant’s work place, his brother’s XXXX XXXX. FARC dissidents told him that his family has 24 hours to pay what was owed to them or else harm would come to the family. The principal claimant filed a denunciation to the Fiscalía the following day. Fearing for his life, he decided to leave Colombia. En route through Mexico, he lost his passport; he walked across the border into the United States on XXXX XXXX, 2022, and made his way to New York City on XXXX XXXX, 2022, to live with his aunt, the associate claimant’s sister. The associate claimant flew to Mexico on XXXX XXXX, 2022, then walked to the border into the United States on XXXX XXXX, 2022. She was detained by immigration authorities until her release on XXXX XXXX, 2022. She flew to New York City to reunite with the principal claimant and stayed with her sister for two months. The claimants drove to the Fort Erie Peace Bridge on September 12, 2022, to initiate their refugee claims.

[5] The principal claimant identifies himself as a gay man and alleges harm based on his sexual orientation should he return to Colombia.

DETERMINATION

[6] The panel finds that the principal claimant is a Convention refugee as he would face a serious possibility of persecution in Colombia based on sexual orientation as a gay man.

[7] The panel also finds that, on a balance of probabilities, the associate claimant would be subjected personally to a prospective risk of harm not faced generally by others if she were to return to Colombia. For the following reasons, the panel finds that she is a person in need of protection because of a risk to her life or a risk of cruel and unusual treatment or punishment.

ANALYSIS

Identity

[8] On a balance of probabilities, the panel finds that the principal claimant has established his personal identity as a national of Colombia by a copy of his birth certificate.[1] As “gay” is the term the principal claimant testified that he identifies with, this decision will also refer to “gay” throughout as per section 2.7 of the SOGIESC guideline that individuals should be allowed to self-identify and their self-identification respected during proceedings.

[9] The panel also finds that the associate claimant has established her personal identity as a national of Colombia by a copy of her national identity card and valid Colombian passport[2] on a balance of probabilities.

Convention Refugee: Section 96 Analysis

[10] To satisfy the definition of a “Convention refugee” found in section 96 of the IRPA, a claimant must establish that they face a serious possibility of persecution on account of their race, religion, nationality, membership in a particular social group or political opinion in their country of nationality.

[11] The panel finds that what the principal claimant fears constitutes persecution, and that the persecution is linked to the Convention ground of membership in a particular social group, gay men. As such, the panel will assess his claim pursuant to section 96 of the IRPA.

[12] The associate claimant alleges a fear of harm from FARC dissidents who have threatened her unless the family paid XXXX XXXX pesos. The panel finds that the alleged agents of harm were acting in a criminal manner and that the basis or motivation for these criminal acts is not rooted in or connected to one of the Convention grounds. The Federal Court has upheld that victims or potential victims of crime, corruption or personal vendettas generally cannot establish a link between their fear of persecution and Convention reasons.[3] Moreover, while being a member of a particular social group is a recognized ground under section 96 of the IRPA, victims of crimes are not, on their own, a particular social group.[4] As the associate claimant’s fear of FARC dissidents is based on criminality, the panel finds that she does not have a nexus to any Convention ground and is not a Convention refugee under section 96 of the IRPA.

Person in Need of Protection: Subsection 97(1) Analysis

[13] To be considered a “person in need of protection” under subsection 97(1) of the IRPA, a claimant must establish that they would likely be subjected personally to a danger of torture or to a risk to their life or a risk of cruel and unusual treatment or punishment if they returned to their country of nationality. In this case, the panel finds that the associate claimant’s allegations are based on future harm from FARC dissidents. As such, her risk will be assessed under subsection 97(1) of the IRPA on a balance of probabilities.

Credibility

[14] A claimant benefits from the presumption that sworn evidence is presumed to be true unless there is a valid reason to doubt its truthfulness.[5] However, the presumption does not apply to inferences and speculation for which there is no evidentiary basis.

[15] In analyzing the principal claimant’s testimony, the panel considered cultural, psychological or other barriers that may explain the way in which testimony is presented, as referenced in section 6.2 of the SOGIESC guideline. The panel also considered the possibility that the stigma associated with people with various SOGIESC or the treatment of people in Colombia may cause some reluctance or difficulty to speak on the subject, as noted in section 3.3 of the SOGIESC guideline and reported in the National Documentation Package (NDP) for Colombia.[6],[7]

[16] The panel’s assessment of the present claim is also guided by the Federal Court which emphasizes that the inherently private nature of claims based on sexual orientation presents evidentiary challenges for the applicant and decision makers; therefore, such claims should be handled with caution, care and sensitivity.[8]

Claimants’ Burden to Establish Their Allegations

[17] The principal claimant is 45 years old, completed up to grade XXXX in high school and has worked as a XXXX and XXXX XXXX in Armenia.[9] He testified that he has been working as XXXX XXXX XXXX XXXX in Brampton. The associate claimant is 64 years old, completed up to a XXXX XXXXgrade education and did not indicate any formal work history; however, at the hearing, she testified that she has worked as a XXXX XXXX for roughly 10 years, a XXXX merchant for about three years and recently an occasional helper in her other son’s business selling XXXX in Armenia.

[18] Several times during the two sittings of the hearing, the claimants testified in a confusing manner with respect to the material aspects of their claim. Their responses were not forthcoming; to ensure that they were given every opportunity to present their claim, the claimants were given repeated opportunities to answer questions. The principal claimant became visibly distressed, often rubbed his eyes and stated that he was extremely nervous. The associate claimant stated that she suffers from a bad memory. The panel asked whether she has sought medical help to deal with her memory issues, to which she replied, no.

[19] In assessing credibility, the panel was mindful of the claimants’ age, education and background. The associate claimant alleges that she has completed XXXX years of formal education, whereas the principal claimant completed roughly XXXX years of formal education. In addition, the panel is cognizant of the many difficulties faced by claimants in establishing a claim, including cultural factors, the milieu of the hearing room, the stress inherent in responding to oral questions through an interpreter and nervousness.

Principal Claimant Credibly Establishes His Sexual Orientation as a Gay Man

[20] The panel accepts that individuals may be reluctant, uncomfortable or hesitant to provide details regarding their relationship with other individuals who have a diverse sexual orientation, having considered the nature of the allegations and the SOGIESC guideline, which promotes these guiding principles:

  • Individuals with diverse sexual orientation may face challenges in establishing their diverse sexual orientation.
  • In some situations, these individuals may have experienced trauma or lived in a repressive society.
  • There is no standard set of criteria that can be relied upon to establish an individual’s identification as a SOGIESC individual.
  • The determination of a claim must be made having assessed all the evidence, including the claimant’s oral testimony, written statements and documentary evidence.

[21] There is a certain minimum of reasonable testimony that is expected when asked questions about memorable experiences or special occasions, having considered the depth and nature of the relationship, the claimant’s personal experience and the SOGIESC guideline. The panel took into consideration the SOGIESC guideline and the sensitive nature of the claimant’s allegations by focussing questions on the awareness and understanding of the claimant’s sexual orientation differences in Colombia and on those relationships that he found to be the most meaningful. The panel asked open-ended questions to allow the principal claimant—and followed up when necessary—to elicit more information and gather information to render a decision. These questions were not aimed at love, sexuality or intimate preferences, nor were they aimed at the trauma or hardship experienced.

[22] In assessing the credibility of the principal claimant’s sexual orientation, having considered the evidence and the claimant’s particular circumstances, the panel finds he has established, on a balance of probabilities, that he is a gay man.

[23] In coming to this conclusion, the panel finds the principal claimant provided generally credible testimony about his sexual orientation. The principal claimant demonstrated XXXX XXXX XXXX XXXX XXXX which led to his difficulty in providing coherent testimony. He tended to ramble and needed the questions repeated and rephrased, citing that he did not understand what was being asked of him. However, the panel finds his non-straightforward responses were not evasive, nor did it seem like he was embellishing his testimony. He realized he was gay about 20 years ago, when he was 25 years old. He had the support of his family when he came out, but still held a fear that other people would judge him and not consider him a member of society. In public, he acted like a “real man” and would not display his affections towards another man. He described his life in Colombia as always in the closet.

[24] The principal claimant recalled an incident in 2017 in which he replaced a friend who worked at another XXXX XXXX. While a young male coworker changed his clothes, the principal claimant stared at him which then prompted the young man to complain to the boss. Later, the boss called the principal claimant into his office to ask why he was staring at the male coworker. The boss asked directly if the principal claimant was gay. Under intense pressure, the principal claimant admitted he was gay. The boss fired him.

[25] The principal claimant testified that he met an older man named XXXX in 2018 through a mutual friend named XXXX. After two years of dating, they decided to get married in XXXX 2020 that was attended by immediate close relatives only. Though it took some time, the principal claimant was able to describe his relationship with XXXX with sufficient details. He spoke about memorable moments where he accompanied XXXX to small towns around Armenia and ate ice cream. He described the moment XXXX proposed to him while they dined at a restaurant.

[26] Besides his oral testimony, the principal claimant tendered his marriage certificate.[10] At the hearing, the principal claimant showed on camera three photographs of him and XXXX on their wedding day. In these photographs, he and XXXX appear to be wearing tuxedos and standing in front of blue, gold and white ballons. One photograph shows them cutting the wedding cake, another features them placing a piece of cake in each other’s mouth and finally one depicts them holding hands that display their wedding bands. The panel has no reason to doubt the authenticity of the marriage certificate and wedding photographs. They are relevant and carry probative value in corroborating the principal claimant’s sexual orientation as a married gay man. As such, the panel assigns these documents full weight in establishing the principal claimant’s allegations.

Associate Claimant Credibly Established the Threats from FARC Dissidents

[27] The associate claimant’s testimony was not spontaneous and uniformly poor throughout the hearing. She tended to say “okay” when the panel asked open-ended questions and required numerous follow-up questions to elicit testimony. She repeated “helping them” when asked what she did for work in Armenia. After repeating this answer three times, without indicating who and what she was doing, the panel instructed the associate to stop repeating her answers and provide more details about what she did in her other son’s XXXX business. She then described that she XXXX XXXX from another place and sold them in the XXXX XXXX. Before that, she briefly sold XXXX XXXX from her home for three years.

[28] When asked to describe the day when two armed men entered the XXXX XXXX to demand payment from her son, XXXX, the associate claimant felt terrorized. She recalled that the men were poorly dressed and threatened her. When asked whether she had any previous encounters with FARC dissidents, she stated that she received a phone call from FARC dissidents who told her that they had kidnapped XXXX and ordered her to pay XXXX XXXX pesos for his release. She testified that they gave her an account number so that she could directly transfer the funds. After XXXX was released, he left Colombia. At the XXXX of XXXX 2022, men who identified themselves as FARC dissidents showed up at her residence and demanded that XXXX continue his monthly payments to them. She told them that XXXX already left Colombia, but they said it did not matter. She filed a denunciation to the Fiscalía a few days later.

[29] To corroborate her allegations of harm, the claimants filed a copy of their complaints to the Fiscalía with English translation.[11] Documents issued by governments are presumed to be genuine. The panel identified no concerns on the face of the documents. The complaints include the signature of the complainants and of the Attorney General’s Office, and refers to the incidents of harm by FARC dissidents, including XXXX’s kidnapping and their extortion demands.

[30] While the reports may be genuine, they are based on allegations made by the claimants to authorities just prior to their departure. The authorities do not independently corroborate the facts and in no way confirm the veracity of the allegations. However, the associate claimant’s statement of events in the Fiscalía report are consistent with the allegations outlined in her testimony. As such, the panel accords the Fiscalía reports filed by the claimants some weight as evidence of the alleged threats by FARC dissidents.

Conclusion on Credibility: Claimants Have Credibly Established Their Allegations on a Balance of Probabilities

[31] In the absence of inconsistencies, contradictions and omissions in the evidence and in their testimony, the panel finds that the claimants are credible witnesses. The panel therefore accepts their allegations, as alleged in their narrative and at the hearing, as established on a balance of probabilities.

Principal Claimant Has a Well-Founded Fear of Persecution

Principal Claimant Has Established His Subjective Fear of Persecution

[32] The principal claimant testified that gays are mistreated in Colombia. Though he was able to marry another man, and same-sex unions are recognized under Colombian law, he was not open about his sexual orientation outside of his family. He would not display his affections publicly for fear of being judged and criticized. Though he was never personally attacked for being gay, he heard about an attack on some gay men in a disco club north of Armenia. He testified that he grew up believing that society discriminates against gay people and that he had low self-esteem for most of his life. The principal claimant was fired from his job after he admitted to the boss that he was gay. All these incidents amplified his fear of aggression and hostile behaviour towards him as a gay man.

[33] Based on the evidence before the panel, the panel finds that the principal claimant has established, on a balance of probabilities, that he fears harassment and physical violence from community members because he is a gay man. In other words, he has established a subjective fear of persecution based on sexual orientation.

His Claim Has an Objective Basis

[34] The principal claimant’s fear of harm at the hands of members in Colombian society has an objective basis. The NDP contains several sources of persecution based on sexual orientation:

  • Colombia has one of the strongest legal frameworks in Latin America to defend the rights of SOGIESC individuals; “however, in practice these protections are rarely enforced. After Brazil, Colombia is perhaps the most dangerous country in the Americas for LGBT+ people. Last year, a study found that, out of nine countries in Latin America and the Caribbean, Colombia registered the highest number of killings of LGBT+ people over a five-year period. In 2020, attacks against LGBT+ leaders and trans people continue even amid the COVID-19 lockdown.”[12]
  • Despite many legal protections based on sexual orientation and gender identity, SOGIESC individuals “continue to face high levels of violence and discrimination.”[13]
  • An independent study that sampled nearly 5,000 SOGIESC Colombians reports high levels of victimization and discrimination, particularly amongst transgender and gay/bisexual men. Also, microaggressions were a common experience. Three-quarters of respondents were bullied at least once before they turned 18 years old, and one-quarter were fired from or denied a job.[14]
  • According to Colombia Diversa, the impunity rate for homicides of SOGIESC individuals committed between 1993 and 2020 was over 90 percent.[15]
  • Caribe Afirmativo notes that in the context of armed conflict, SOGIESC individuals “have been victims of threats, forced displacement, enforced disappearance, kidnappings, serious physical and psychological violence, sexual violence, arbitrary detention, torture, and killings, at the hands of post-FARC-EP irregular armed groups, the ELN, other irregular armed actors, the police, and the armed forces.”[16] Colombia Diversa adds that “armed conflict exacerbates existing violence based on prejudice against LGBTI people and that this kind of violence is used as a ‘war strategy’ … to exercise control in an area.”[17]

[35] Given the multiple references in the NDP to the maltreatment of both men and women who identify as 2SLGBTQI+ or choose to have SOGIESC relationships, and that such maltreatment amounts to persecution, the panel finds that there is ample evidence of an objective basis for the principal claimant’s subjective fear in this case.

Conclusion on Well-Founded Fear of Persecution

[36] Based on the evidence provided in the principal claimant’s testimony and in the NDP, the panel finds that the principal claimant has demonstrated a subjective fear of persecution in Colombia that is objectively well-founded. The panel further finds that there is a serious possibility that he will face persecution, including serious physical violence, due to his sexual orientation as a gay man.

Associate Claimant Faces a Personal Risk to Life Not Faced Generally under Paragraph 97(1)(b)

[37] For a claim to be accepted under paragraph 97(1)(b) of the IRPA, the evidence must establish a specific, individualized risk to a claimant, and not merely generalized exposure to crime or human rights violations in a country.[18] There is a two-step process for determining whether a claimant would be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment that is not faced generally by others: (1) The claimant must establish, on balance of probabilities, that they would be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment if they returned to their country of nationality. (2) It is only after a finding that there is a personal risk that a decision-maker must continue to consider whether that risk is one faced generally by others.[19]

First Step: Associate Claimant Would Be Subjected Personally to a Risk to Life

[38] The associate claimant fears being killed by FARC dissidents because she could not continue to pay their extortion demands. The basis for the risk—that is, refusing to support an illegal armed group—is distinct from the nature of the risk itself—that is, risk to life.

[39] Following the framework of analysis for claims under paragraph 97(1)(b) of the IRPA:[20]

  • The nature of any ongoing or future risk: The associate claimant testified that FARC dissidents first threatened her son, XXXX, who later fled Colombia. FARC dissidents continued to visit XXXX’s XXXX XXXX to demand regular payments or else they would destroy the property and harm the associate claimant. The panel finds that the nature of the risk is violence and that the threats represent an ongoing risk to the associate claimant’s life.
  • The basis (or initial reason) for the risk: The associate claimant was able to pay the XXXX XXXX XXXX XXXXpeso extortion fee one time, but she had no access to other funds to continue paying them. FARC dissidents need “protection money” to finance their illegal activities and enable control over local residents. The panel finds that the risk to the associate claimant’s life is based on her inability to comply with the FARC’s demands to pay extortion money and to commit criminal acts.
  • The degree of the risk (or proximity to the risk): The risk also increased in degree over time. The associate claimant was unaware that XXXX was a victim of FARC dissidents before he left Colombia. He received numerous threats and was kidnapped. The threats continued and extended to the principal and associate claimants to pay an alleged outstanding debt owed to the FARC. In the panel’s view, there exists a pattern of events connected by the FARC’s repeated threats, demands and targeting.

[40] Also, the NDP reports that FARC dissident groups are involved in illegal economic activities and use “extreme tactics because they need … to grow quickly.”[21] The International Crisis Group (ICG) notes that “many dissident groups are more abusive than their FARC predecessors as they compete among themselves, sometimes brutalising local communities to maintain control.”[22]

[41] Based on the associate claimant’s evidence and the objective evidence, the panel finds that she would face personalized, forward-facing risk to life or of cruel and unusual punishment or treatment on a balance of probabilities if she were to return to Colombia today.

Second Step: Associate Claimant’s Risk Is Not One Faced Generally by Others

[42] While criminality is widespread in Colombia, others are not facing the same risks experienced by the associate claimant. She was personally targeted and threatened with death for not being able to pay FARC dissidents like her son did. Her risk is highly proximate. She faces a risk of getting killed. Even if others could eventually find themselves in her position in the future, this does not mean that they are generally in her position now.

[43] FARC dissidents extorted the associate claimant because she worked in the same XXXX XXXX owned by her son. They were aware that her son was the business owner and had a perceived ability to meet their demands. Any threats that occurred subsequent to the extortion demands flowed from that initial demand for money. Her son was attacked and kidnapped, and FARC dissidents threatened to repeat their actions on her if she did not pay their demand. As the associate claimant’s evidence supports the notion that the risk includes bodily harm, the panel finds that her risk is not one faced generally by others. Due to the personalized and escalated targeting, the panel finds that the associate claimant’s risk is distinguishable in nature and degree from the risk faced generally in Colombia on a balance of probabilities.

[44] Therefore, the panel concludes that more likely than not the associate claimant would continue to face a risk to her life not generally faced by others in Colombia if she were to return to that country.

Adequate State Protection Does Not Exist for the Claimants

[45] The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to a claimant. Absent a complete breakdown of the state apparatus, the general presumption is that a state can protect its citizens. This presumption may be rebutted if there is clear and convincing evidence of the state’s inability to provide protection. A claimant must approach the state for protection if it might reasonably be forthcoming; however, they should not risk their life seeking ineffective protection of a state merely to demonstrate that ineffectiveness.[23]

[46] In this case, the claimants each filed a report to the Fiscalía when the threats intensified, but nothing was done about it. Fearing further harm by FARC dissidents and state corruption, the claimants decided to leave Colombia.

[47] The claimants’ lack of confidence in state authorities is in line with the objective evidence regarding Colombian authorities’ inability to protect its citizens from violence committed by organized criminal groups like FARC dissidents. The objective evidence acknowledges that the Colombian government has made considerable efforts to enhance protection for victims of non-state armed actors, but in areas where there is a strong presence of new armed groups or guerilla groups, the ability of the government to provide protection is highly limited due to lack of presence and capacity, as well as sometimes issues of corruption and complicity by local and regional authorities.[24] Human rights organizations, victims, and government investigators have accused “government security forces of collaborating with or tolerating the activities of criminal gangs, which included some former paramilitary members.”[25]

[48] Additionally, members of public security forces have been cited as the most responsible for acts of violence and harassment against SOGIESC Colombians, further illustrating “the concerning gap between Colombia’s progressive legal protections and the actual enforcement of said protections.”[26] Results from a 2019 national survey reveal experiences of verbal and physical abuse by police and state officials towards SOGIESC individuals.[27]

[49] Based on the objective country evidence in the NDP, the panel finds clear and convincing evidence that Colombia would not afford the claimants adequate protection that is expected of the state. While protection does not need to be perfect, the evidence leads the panel to determine that state authorities are complicit in the harm to the claimants. The panel finds that, on a balance of probabilities, the claimants do not have access to operationally adequate state protection in Colombia. The presumption of state protection has been rebutted in this case and adequate state protection would not be available to the claimants in Colombia on a balance of probabilities.

No Viable Internal Flight Alternative (IFA)

[50] To determine whether a viable IFA exists, the panel must be satisfied on a balance of probabilities that: (1) There is no serious possibility the claimants would be persecuted or subjected personally to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the proposed IFA. (2) Conditions in the proposed IFA are such that it would not be unreasonable, in all the circumstances, including those particular to the claimants for them to seek refuge there.[28] Both prongs must be satisfied to find that the claimants have a viable IFA.[29]

[51] At the outset of the hearing, the panel identified Sincelejo and Barranquilla as viable IFA locations.

[52] There are numerous reports in the NDP that sexual minorities face discrimination, harassment, intolerance and violence from society and state protection forces throughout Colombia. The principal claimant expressed credible fear about fully expressing his sexuality in public or demonstrating his sexuality. As noted in section 8.7.1 of the SOGIESC guideline, it is well-established in law that an IFA is not viable if a SOGIESC individual must conceal their SOGIESC to live in that location. Given the state’s complicity in harm against sexual minorities and homophobic attitudes that exist country wide, as outlined in the objective evidence cited earlier, the panel finds that there is no safe place for the principal claimant to live openly as a gay man in Colombia and nowhere in Colombia where he would not face a serious possibility of persecution based on his membership in this particular social group. Therefore, the panel finds that there is no viable IFA available to the principal claimant anywhere in that country.

[53] The panel also finds that the associate claimant does not have an IFA in these locations because she will face the same risk as she has in the past from FARC dissidents who have threatened her and because they have the means and motivation to locate her in the proposed IFAs. The panel already found that the associate claimant faces ongoing personalized risk to life that is not faced generally by others. Her evidence demonstrates that the agents of harm have a continuing interest to find and harm her given that her son had been paying the monthly extortion fee. On a balance of probabilities, FARC dissidents have the motivation to locate the associate claimant such that she faces a risk to life throughout Colombia.

[54] The objective evidence contains sources that criminal groups can track targeted individuals and the main method used is by word of mouth through country-wide networks or “urban collaborators.”[30] They mostly track their victims through informants, contacts in intelligence agencies and the army, and networks with other criminal groups across the country; additionally, reports from community activists across the country have indicated pandemic-related restrictions on movement make it easier to track targets.[31] InSight Crime notes that many of these paramilitary groups operate through strategic alliances.[32] Based on the objective references in the NDP, the panel finds, on a balance of probabilities, that FARC dissidents possess the means to locate the associate claimant such that she faces a risk to life throughout Colombia.

[55] Given the agents of harm’s means, capacity and continued motivation to pursue the associate claimant anywhere in Colombia, as well as the supporting objective evidence, the panel finds that there is a serious possibility that she would be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger in the proposed IFAs of Sincelejo and Barranquilla.

[56] As the IFA test fails on the first prong, it is unnecessary to examine the reasonableness of a proposed IFA. As both prongs of the IFA test are not met, the panel finds that the claimants have no viable IFA in Colombia in their particular circumstances on a balance of probabilities.

CONCLUSION

[57] Having considered all of the evidence, the panel finds that XXXX XXXX XXXX XXXX would face a serious possibility of persecution on the grounds of membership in a particular social group, gay men, should he return to Colombia. The panel finds him to be a Convention refugee under section 96 of the IRPA and therefore accepts his claim.

[58] The panel also finds that XXXX XXXX XXXX XXXX is a person in need of protection under subsection 97(1) of the IRPA and therefore accepts her claim.

——— REASONS CONCLUDED ———

[1] Exhibit 1: Immigration Documents – Passport & ID Documents – Principal Claimant.

[2] Exhibit 1: Immigration Documents – Passport & ID Documents – Associate 1.

[3] Kang v Canada (Minister of Citizenship and Immigration), 2005 FC 1128 at para. 10; and Ascencio Ventura v. Canada (Citizenship and Immigration), 2011 FC 1107 at paras. 15-16.

[4] Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689. [Ward]

[5] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) at para. 305.

[6] Exhibit 3: National Documentation Package (NDP), Colombia, 31 August 2023, tab 5.3:​Laying Down Arms, Reclaiming Souls: Sexual Violence against Men and Boys in the Context of the Armed Conflict in Colombia. Grupos Focales de Hombres Víctimas de Violencia Sexual et al.​. 19 June 2022.

[7] Exhibit 3: NDP, Colombia, 31 August 2023, tab 6.1: ​LGBT+ Rights and Peace in Colombia: The Paradox Between Law and Practice. Washington Office on Latin America. Matthew Bocanumenth. 3 July 2020. [NDP, tab 6.1]

[8] Ogunrinde v. Canada (Public Safety and Emergency Preparedness), 2012 FC 760 at para. 42; and Nezhalskyi v. Canada (Citizenship and Immigration), 2015 FC 299 at para. 14.

[9] Exhibit 1: Immigration Documents – IMM 5669 Schedule A: Background / Declaration.

[10] Exhibit 5.2: Disclosure – Tab I, Personal Evidence – Marriage Certificate, pp. 15-18.

[11] Exhibit 5.2: Disclosure – Prosecutor office complaints for XXXX XXXX XXXX and XXXX XXXX XXXX (with English translation), pp. 2-17.

[12] NDP, tab 6.1, supra.

[13] Exhibit 3: NDP, Colombia, 31 August 2023, tab 2.2: ​Colombia. World Report 2023: Events of 2022. Human Rights Watch. January 2023.

[14] Exhibit 3: NDP, Colombia, 31 August 2023, tab 6.4: ​Stress, Health, and Well-being of LGBT People in Colombia: Results from a National Survey. UCLA School of Law. Williams Institute. Soon Kyu Choi et al. April 2020.

[15] Exhibit 3: NDP, 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. [NDP, tab 1.7]

[16] Ibid.

[17] Exhibit 3: NDP, Colombia, 31 August 2023, tab 6.3: ​Situation and treatment of sexual and gender minorities, including treatment by authorities and society; state protection and support services available (2017-May 2020). Immigration and Refugee Board of Canada. 26 May 2020. COL200263.E.

[18] Ahmad v. Canada (Minister of Citizenship and Immigration), 2004 FC 808 (CanLII) at para. 22.

[19] Portillo v. Canada (Citizenship and Immigration), 2012 FC 678 (CanLII) at paras. 40-41; and Guerrero v. Canada (Citizenship and Immigration), 2011 FC 1210 (CanLII), [2013] 3 FCR 20 at para. 28.

[20] X (Re), 2021 CanLII 95825 (CA IRB).

[21] Exhibit 3: NDP, Colombia, 31 August 2023, tab 7.22: ​The Revolutionary Armed Forces of Colombia ​(Fuerzas Armadas Revolucionarias de Colombia, FARC), ​including demobilization of former combatants; information on dissident groups, including number of combatants, areas of operation, activities… Immigration and Refugee Board of Canada. 18 April 2018. COL106084.E.

[22] Ibid.

[23] Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689.

[24] NDP, tab 1.7, supra.

[25] Exhibit 3: NDP, Colombia, 31 August 2023, tab 2.1: ​Colombia. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.

[26] NDP, tab 6.1, supra.

[27] NDP, tab 6.4, supra.

[28] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.); and, Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589.

[29] Ibid.

[30] Exhibit 3: NDP, Colombia, 31 August 2023, tab 7.37: ​Targets of criminal groups, particularly the Gulf Clan (Clan del Golfo) [also known as the Gaitanista Self-Defence Forces of Colombia (Autodefensas Gaitanistas de Colombia, AGC), Los Urabeños, Clan Úsuga], the National Liberation Army (Ejército … Immigration and Refugee Board of Canada. 13 August 2021. COL200703.E.

[31] Ibid.

[32] Exhibit 3: NDP, Colombia, 31 August 2023, tab 7.11: ​Rastrojos. InSight Crime. Diego Rastrojo. 20 July 2022.