2024 RLLR 65

Citation: 2024 RLLR 65
Tribunal: Refugee Protection Division
Date of Decision: January 31, 2024
Panel: K Sheehan
Counsel for the Claimant(s): N/A
Country: Colombia
RPD Number: TB8-15484
Associated RPD Number(s): N/A
ATIP Number: A-2025-00362
ATIP Pages: N/A

REASONS FOR DECISION

[1] The claimant, XXXX XXXX XXXX XXXX, file number TB8-15484, claims to be a citizen of Colombia and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).

[2] In making this decision, and throughout the conduct of the hearing I considered and applied Guideline 4: Gender Considerations in Proceedings Before the IRB.

PROCEDURAL HISTORY

[3] The claimant made her claim in 2018 and her narrative was received in early 2019. Her claim was suspended in July 2019 and was continued in September 2019. The claimant did not appear for an October 27, 2020 hearing. The file was transferred to Montreal when the claimant moved there in 2021, she also obtained Montreal based counsel. In 2023 the file was transferred back to Toronto. The claim was scheduled for February 23, 2023. The claimant did not appear. An abandonment hearing was held where the claimant showed cause for why her claim should not be abandoned. The claimant retained new counsel in March 2023. In June 2023 the claimant was sent a letter that her counsel was no longer authorized to represent her. In July 2023, the claimant’s two minor sons travelled to Canada and initiated refugee claims. They were joined to her claim. A hearing for all three claimants was to be held August 31, 2023 but was cancelled because the claimant’s counsel was no longer authorized to represent her before the Board.

[4] A hearing for all three claimants was scheduled for November 9, 2023. The claimant appeared at that hearing date, self-represented. She indicated she wanted to proceed with her hearing and did not want the assistance of counsel. The panel had a number of procedural issues to go over at the November 9, 2023 hearing. First, the claimant, indicated that she had used google translate to complete her BOC form. She had also provided a typed narrative. She testified she wrote her narrative in Spanish and had someone interpret for her, but it was not read back to her, so she was not sure what was contained within it. The claimant testified that she could not read or understand English. The panel spent time instructing that the claimant had to resubmit her BOC form and narrative, explaining that it should be interpreted to her by someone fluent in both Spanish and English and that both herself and the interpreter should sign the relevant Declaration in the BOC to convey this. The panel explained that the claimant needed to understand what was contained within her BOC. There was no disclosure on file. The panel explained how the claimant could submit documents to the Board. The panel also communicated to the claimant how she could find a document conveying important instructions about the refugee process on the Board’s website also published in Spanish. The second main issue was that the claimant had been appointed as the designated representative of her minor children and had not yet filled out Basis of Claim forms for them despite numerous instructions to do so. The panel spent time going over how to access the Basis of Claim Form and that the claimant needed to fill out forms on behalf of her children and ensure the information had been interpreted to her. The claimant was also instructed to provide a custody document or a letter of support from the children’s father which she indicated that she had. The claimant was informed that if she did not do this by the next hearing date the children’s claims would be separated from hers, and it could impact their claims as a special abandonment hearing may be held if no Basis of Claims were received in a timely manner. The hearing was rescheduled for two half days on January 16 and 17, 2024.

[5] In advance of the January 16, 2024 hearing date the claimant did resubmit page 10 of the BOC with Declaration B filled out. She also submitted a new typed narrative which has an interpreter’s declaration. The claimant confirmed that the new narrative had been interpreted to her. The panel admitted the new narrative; the original BOC and narrative stayed in evidence. The claimant also submitted a XXXX report that was entered into evidence. The claimant did not provide any BOCs for her children. The panel indicated at the January 16, 2024 sitting that because the claimant had not submitted the BOCs and was not complying with her responsibilities as a designated representative that the panel separated the claims of the minor children and determined that a new independent designated representative would be appointed to assist the children with putting forward their refugee claims. The hearing proceeded on January 16 and 17, 2024 with only the claimant’s claim being heard. The minor children were separated at the outset of the January 16, 2024 sitting.

[6] Between the sitting of January 16, and 17, 2024 the claimant submitted a letter from XXXX XXXX XXXX which was accepted into evidence. She also provided a Spanish custody document that was not entered into evidence but was looked at during the hearing with the assistance of the interpreter. During the hearing the claimant also provided Facebook screenshots in Spanish. They were not formally admitted into evidence as they were in Spanish, but they were considered during the course of the hearing with the assistance of the interpreter.

[7] Lastly, the claimant indicated at the January 17, 2024 indicating that a letter was arriving from her mother in Colombia. The claimant explained that the letter from the mother would have to be interpreted if it was in Spanish to be accepted into evidence. The claimant was given two weeks after the hearing to provide any post-hearing disclosure.

[8] The claimant provided post-hearing disclosure on January 26, 2024 in the form of a denunciation made on December 2, 2022 and a notarized letter of support from her mother dated XXXX XXXX, 2023. These documents were properly translated and accompanied by an affidavit of translation. I therefore accept them into evidence.[1]

ALLEGATIONS

[9] The claimant’s allegations are fully set out in her Basis of Claim Form and Amended Narrative (“BOC”).[2] In the claimant’s initial BOC she alleges a fear of the Black Eagles in Colombia due to her relationship with her then boyfriend (“A”), who is also the father of her daughter born in Canada. The claimant alleges that A had been incarcerated in Colombia and had joined the Black Eagles in prison. Once out of prison, he no longer wanted to be affiliated with the Black Eagles which caused him to be threatened and face physical attacks in Colombia. The claimant alleges that she became involved in one of these physical attacks before leaving Colombia and travelling to Ecuador, then Mexico, staying in Mexico for approximately XXXX months and then coming to Canada where she gave birth to her daughter. In her amended narrative the claimant detailed that A is now her ex-partner and that while she was in Canada this relationship became physically and verbally abusive. The claimant alleges that A also arranged threats to her minor sons while they were in Colombia. The claimant alleges that A, before being deported back to Colombia, had followed her across provinces and continued to harass her, blaming her for his problems in Canada and his eventual deportation. The claimant alleges that since A returned to Colombia, he has been in contact with her mother.

DETERMINATION

[10] On the totality of the evidence, I find that the claimant is a Convention refugee. The claimant has established that she faces a serious possibility of persecution in Colombia from her ex-partner A.

ANALYSIS

Identity

[11] The claimant did not come to Canada with a passport. She testified that the passport was taken from her by the persons who were paid to help transport her from Mexico to Canada. At the port of entry in Canada the claimant did provide a copy of a copy of her Colombian national ID card, the Cedula.[3] The claimant’s fingerprints in Canada returned a biometric match to fingerprints taken in the United States.[4] According to the biometrics, the claimant’s name and date of birth is a match to her Canadian information and indicates that she is a citizen of Colombia. Additionally, the claimant was able to show the physical copy of her Cedula to the panel at the hearing. She had it replaced while in Canada. The physical copy of the Cedula contained the claimant’s personal information and appeared to be a genuine document. I attach both identity documents full weight. I therefore find on a balance of probabilities that the claimant’s personal identity as a citizen of Colombia has been established on a balance of probabilities.

Nexus

[12] The claimant made her refugee on two distinct claim types, one related to organized crime violence in Colombia and the other related to intimate partner violence with her Colombian partner. I am deciding this claim based on the claimant’s allegations related to the intimate partner violence from A. This claim type has a nexus to the Refugee Convention under Particular Social Group – women fearing gender-based violence. As such, this claim is assessed under s.96. To be a Convention refugee under section 96 of the Act, the claimant must estabslih that she faces a serious possibility of persecution in Colombia.

Credibility

[13] The claimant was generally a credible witness when it came to her allegations involving her relationship with A. There were some credibility concerns with the claimant’s testimony regarding the allegations against the Black Eagles as related to when attacks happened, who attacks were committed by and who was present for the attacks. These issues may be reasonably explained through the claimant’s use of google translate and having a Spanish narrative interpreted by someone but then not knowing what was in the English version that was submitted. However, I am making no findings related to those concerns because I am deciding this claim based on the allegations of domestic violence alone.

[14] When the claimant made her refugee claim in Canada, she acknowledged she was in a relationship with A who had previously been incarcerated for 14 years for the XXXX XXXX XXXX XXXX. The claimant testified that A would not speak to her much about his conviction or the elements of the crime but did tell her that it was not his fault. The claimant testified that her relationship with A moved fast and when they first met through a mutual friend, A was a very calm person. The claimant testified that A is approximately eight years older than her. She knew that A has brothers, one who lived in Colombia and one who lived in the United States and that A’s mother was deceased. The claimant was up front noting that she did not know of A’s father and did not know anyone from the rest of the family as she only learned limited things about A. I find that it adds to the claimant’s credibility that she was forthcoming regarding what she did not know about A. The claimant spontaneously testified that she believed A had two other children other than the daughter they had together and knew what A had done for work in Colombia and where he had lived. This testimony was forthcoming and detailed.

[15] The claimant testified that when she and A were living in Canada his behaviour towards her changed. She described how he became aggressive and hysterical that she had made a refugee claim, calling her a snitch and saying she had no right to talk about him to Canadian authorities. The claimant testified that part of the reason she thinks A was so angry that she had spoken about their situation is that he still owed some time on his sentence for the homicide, that he was on house arrest when they left Colombia. The claimant testified how their relationship broke down but A would still seek to control her in other ways under the pretext of seeing their daughter. She testified A did not want her to work or have friends, and that there were times her landlord told her that A would sit outside her home for hours at a time watching the house. The claimant testified that initially their relationship in Colombia was good and she had fallen in love with A and trusted him but that once in Canada this relationship became problematic. The claimant noted that this behaviour began to appear in Mexico when the tone of A’s voice changed, the claimant said she would not use the word aggressive, but it was a word close to what she was describing. She testified that once they were in Canada, A’s personality appeared to change completely.

[16] The claimant was overcome with a genuine display of emotion when discussing an incident whereby she was coming home with her daughter and A was outside her home with a friend. A threatened her, said their daughter should be with him, and grabbed the daughter and was putting the daughter in his car. The claimant testified that A had hit her during this altercation. The claimant testified that she ran and found a passerby who let her use their phone to call the police. The claimant and the passerby approached and once A became aware that the police were called, this distraction allowed the claimant to grab her daughter from A’s vehicle. The claimant testified that A was not in the driver’s seat and the driver kept saying to A, “let’s go, this is more trouble than its worth” and the two fled the scene. The claimant’s testimony regarding this incident was consistent with her BOC and she also provided additional spontaneous details which added to her overall credibility regarding this incident. The claimant also provided a letter from the XXXX XXXX XXXX in relation to this event which noted that the file which had been opened related to a domestic dispute which impacted the daughter had been closed.[5] The document appears to be genuine, and I attach it full weight.

[17] The claimant testified that she shut down her social media accounts and moved to Montreal to get away from A. She testified that after 6 months A managed to find out where she was living. She testified that at her home there was a break-in. She testified that no one was home at the time of the incident but she believes that it was A because shortly before the incident she ran into a friend of A’s at a Latino grocery store. The claimant testified that she believes the break in to have been committed by A because about 20 days after the break-in A had called her mother in Colombia and told the mother that he knew where the claimant was in Canada. The claimant did not mention this phone call in her BOC. When asked about why she omitted it the claimant explained that she did include that A had located her in Montreal. While it would have been better if the claimant included this phone call in her Basis of Claim Form, I do agree with the claimant that the main allegation, A having located the claimant, is indeed contained within the BOC. I therefore make no credibility findings from the omission related to the phone call.

[18] The claimant testified that A contacted her before he was deported and told her that he blames her for his inability to obtain status in Canada and threatened to take out his anger with her on her children who were still living in Colombia at the time. The claimant testified that individuals went to her eldest son’s school, telling him to deliver a message to the mother that was from A. The claimant testified that her sons stopped going to school after this incident. The claimant provided a denunciation made by her mother in XXXX 2022 which confirms these threats.[6]

[19] The claimant’s amended narrative states that people also came to the family home to make threats to the sons. When asked about this the claimant was adamant that this was not accurate, explaining that the people only made the threats at the school, no one ever came to her home to threaten her sons. While this does raise a credibility concern, the claimant was upfront and did not seek to embellish or exaggerate her claim. The claimant also provided a letter of support from her mother which states that people did come to the home to look for the grandchildren.[7] As the claimant maintained at the hearing that this did not occur, I attach the letter from the claimant’s mother no weight.

[20] While there were some credibility concerns, I find they are minor in nature related to isolated incidents. The claimant’s core allegations, that she was subjected to abusive treatment by A and that A has made threats to herself, her two sons, and maintained a desire to take the daughter they share, have been established on the totality of the evidence.

Well-Founded Fear of Persecution

(i) Subjective Fear

[21] The claimant made her claim in Canada shortly after her arrival. She did stay in Mexico for approximately 9 months without making a refugee claim before coming to Canada. This would be relevant to her claim against the Black Eagles as this was the reason she initially left Colombia. However, as this decision is based on the domestic violence element of the claim, there are no issues with delay, or failing to claim protection in other countries. I therefore find that the claimant has a subjective fear of harm in Colombia.

(ii) Objective Basis

[22] Violence against women is normalized in Colombia and viewed as an “intractable part of life.”[8] The practice is widespread: domestic violence is the second most reported crime in Colombia.[9] Femicides are also an issue in the country, often committed by a woman’s partner.[10]

[23] There are laws which aim to promote equality for women, including Law 1257 of 2008 and Law 1719 of 2014.[11] However, enforcement is an issue, which is discussed more below regarding the issue of state protection.

[24] As there is widespread gender-based violence in Colombia, the panel finds that there is an objective basis for the claimant’s allegations.

(iii) Conclusion on Well Founded Fear

[25] As the claimant has established her subjective fear and that her allegations have an objective basis, I find that the claimant has a well-founded fear of persecution in Colombia.

State Protection

[26] There is a presumption that the state is capable of protecting its citizens except in situations where the state is in complete breakdown. Claimants who allege that state protection is not available must persuade the Board, on a balance of probabilities, that state protection is inadequate. In determining the adequacy of state protection, the Board will consider the legislative and procedural framework that exists in the country of reference, and whether the state is able and willing to effectively implement the framework at an operational level.

[27] As discussed above there are laws to prevent violence against women and bring justice to women affected by this crime. There are some records of investigations and successes in those investigations. It is also possible to obtain a protection order in Colombia.[12] However there are also reports that the authorities are often unresponsive when contacted by women who experience intimate partner violence.[13] For example, the Bogota Post noted that there is over 90% impunity rates for some of the gender-based violence cases in the region, and only 7% of femicides have been fully pursued by the courts.[14] These statistics are alarming. I find them to be consistent with the claimant’s testimony that if she were to make a report based on domestic violence, it would sit on a shelf with many, many others, and nothing would be done about it.

[28] Human rights Watch indicates that the perpetrators of violent crimes against women are rarely held accountable.[15]

[29] The claimant herself has not reported the violence to the authorities in Colombia as she did not experience the violence from A while she was in Colombia. However, according to her credible testimony, A breached house arrest when he left Colombia, and notwithstanding that he was deported from Canada back to Colombia he remains free. He is also named in a denunciation the claimant’s mother made in relation to the threats made to the children at school, yet no action appears to be taken with regards to that complaint. I have considered A’s past interactions with the criminal justice system. However, he breached conditions of his release, seemingly without consequence. He also has an established pattern of violent harm against women.

[30] While A has been tried and imprisoned in the past for a XXXX XXXX XXXX XXXX XXXX, that only resulted once XXXX XXXX XXXX XXXX. I find that the objective evidence related to indifference by the authorities and the high level of impunity for crimes of domestic violence is clear and convincing evidence of the state’s inability to protect. I find that the presumption of state protection has been rebutted based on the objective evidence and the personal circumstances surrounding the claimant’s situation.

Internal Flight Alternative

[31] The test to be applied in determining whether there is a viable internal flight alternative (“IFA”) is two-pronged. Firstly, the panel must be satisfied, on a balance of probabilities, that the claimant would not face a serious possibility of persecution in the IFA locations. Secondly, the conditions in the proposed IFA locations must be such that it would not be objectively unreasonable under the circumstances, including those particular to the claimant, for her to seek refuge there. Both prongs must be satisfied for a finding that the claimant has an IFA.

[32] At the hearing the panel proposed Medellin, Sincelejo and Cartagena as potential IFA locations.

Medellin, Sincelejo and Cartagena are not Safe IFA Locations

[33] The claimant provided credible evidence that A was able to follow her from Toronto to Montreal in Canada and obtain her location. Additionally, while A was in Canada, he sent individuals to the claimant’s children’s school to send her a message and threaten them. Additionally, he has reached out the claimant’s family and made threats to them as well. While the claimant genuinely believes that A is involved with criminal groups and can use them to locate her in Colombia, I find this is speculative. However, A has shown a past ability to locate the claimant in multiple Canadian cities, track her two sons down in Colombia and ask the claimant’s family about her.

[34] I also find that A has motivation to locate the claimant should she return to Colombia. A has shown that he desires the child he and A had together. The claimant credibly established that A attempted to kidnap the daughter in the past. Should the claimant return to Colombia with her Canadian born daughter, the child being present in Colombia is high motivation for A to come looking for the claimant. A has also conveyed to the claimant that he blames her for his deportation from Canada.

[35] Therefore, on the totality of the evidence, I find hat A has both the means and the motivation to locate the claimant in the IFA cities. As the first prong has not been satisfied, there is no viable IFA in Colombia for the claimant.

CONCLUSION

[36] The claimant has established that she faces a serious possibility of persecution in Colombia.

[37] I find that the claimant is a Convention refugee.

[38] The claim is accepted.

——— REASONS CONCLUDED ———

[1] Exhibit 8.

[2] Exhibits 2 and 5.

[3] Exhibit 1.

[4] Exhibit 4.

[5] Exhibit 7.

[6] Exhibit 8.

[7] Exhibit 8.

[8] Exhibit 3, National Documentation Package for Colombia (August 31, 2023), Tab 5.1, page 1.

[9] Exhibit 3, National Documentation Package for Colombia (August 31, 2023), Tab 5.4, page 1.

[10] Exhibit 3, National Documentation Package for Colombia (August 31, 2023), Tab 5.4, page 3.

[11] Exhibit 3, National Documentation Package for Colombia (August 31, 2023), Tab 5.4, pages 6-15.

[12] Exhibit 3, National Documentation Package for Colombia (August 31, 2023), Tab 5.4, page 21.

[13] Exhibit 3, National Documentation Package for Colombia (August 31, 2023), Tab 5.4, page 20.

[14] Exhibit 3, National Documentation Package for Colombia (August 31, 2023), Tab 5.4, pages 20-21.

[15] Exhibit 3, National Documentation Package for Colombia (August 31, 2023), Tab 5.4, page 21.