2023 RLLR 226

2023 RLLR 226 Citation: 2023 RLLR 226 Tribunal: Refugee Protection Division Date of Decision: December 12, 2023 Panel: Lesley Stalker Counsel for the Claimant(s): N/A Country: Colombia RPD Number: VC3-08301 Associated RPD Number(s): N/A ATIP Number: A-2024-01133 ATIP Pages: N/A DECISION [1] This is the decision in the claim of XXXX XXXX XXXX XXXX, a citizen of Colombia who is seeking Canada’s protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act. [2] The claimant did not have the assistance of counsel, and represented himself at the hearing and in filing post-hearing disclosure. ALLEGATIONS [3] The claimant fears he will be killed or otherwise harmed by criminal organizations because of his work XXXX XXXX XXXX. [4] The claimant has worked in XXXX and XXXX of XXXX XXXX since 2015. Over the years, he has suffered a variety of threats from people who were angered when their fraudulent use of XXXX XXXX was detected. In 2017, after a particularly traumatizing threat by a group of armed men, the claimant suffered a nervous breakdown. In 2022, the claimant narrowly escaped two men on motorcycles, who were part of a group who had been monitoring his apartment. They warned him that the next time he would not be so lucky, and he or his family would pay the consequences. [5] The claimant and his family relocated, but he figured it was a matter of time until the assailants found him. Fearing for his life, he left the country and filed this claim for protection. DETERMINATION [6] I find that the claimant faces a risk to his life or a risk of cruel and unusual treatment which is not faced generally by others if he were to return to Colombia. ANALYSIS Identity [7] I am satisfied as to the claimant’s personal and national identity by virtue of his valid Colombian passport, a certified true copy of which is on file. Nexus [8] The claimant fears men who have threatened him in pursuit of their criminal activities. As his allegations do not have a link to any of the grounds in the Refugee Convention, I have assessed his claim under subsection 97(1) of the Immigration and Refugee Protection Act. Credibility [9] When assessing credibility, I start from the presumption that sworn evidence is true unless there is a valid reason to doubt its truthfulness. In the present case, I had no reason to doubt the claimant’s truthfulness. He answered my questions readily and endeavoured to be precise. He also admitted when he did not know the answer to questions, including the identity of the group which had targeted him. [10] The claimant was able to describe the various threats that he had experienced in the course of his work as an XXXX XXXX, whose work involved XXXX and XXXX XXXX XXXX XXXX XXXX. His testimony was straightforward and consistent with the information in his narrative. [11] When asked how the criminals knew his identity and where he lived, the claimant explained stated that when he disconnected power, he would leave a work order at the site, which included his name and his employee identity number. As such, it was a relatively easy matter for criminals to know how identity. Once they knew his name, it was a relatively easy matter to find out where he lived. [12] The claimant acknowledges that he does not know the identity of the people who targeted him. He states that there are several dangerous criminal organizations which carry out their activities in the area, including the Black Eagles. [13] I have wrestled with the question of who the agent of harm are, and particularly the question of whether they are a few disgruntled individuals or belong to a criminal organization. After considering the evidence, I find that the claimant has been targeted by a criminal organization, not an individual. In making this finding, I rely on the claimant’s account that his apartment was being monitored by men on motorcycles in the weeks before the final attempt on his life. I find that such behaviour is more consistent with the capacity and motivation of an irregular armed group than with a disgruntled individual. [14] In addition to the claimant’s credible testimony, he filed a number of documents to corroborate his allegations. These include documents relating to his employment as well as statements from co-workers who described the threats to the claimant’s life in the course of his work and the temporary measures that the company adopted to safeguard the claimant. These measures were only temporary, and ultimately were discontinued. One co-worker recounted an unknown man asking questions at the worksite about the claimant approximately one month before the attempt on the claimant’s life. [15] I have no reason to doubt the authenticity of any of these documents, and accept them as corroborative of the claim. In view of the claimant’s credible testimony and the corroborative documents, I accept the claimant’s allegations as set out in his narrative and at the hearing. Personal Risk to Life Not Face Generally Under Paragraph 97(1)(b) [16] For a claim to be accepted under paragraph 97(1)(b) of the Immigration and Refugee Protection Act, the evidence must establish a specific individualized risk to the claimants and not merely a generalized exposure to crime or human rights violations in a country. [17] In this case, I find the risk to the claimant’s life is personal: he has been specifically singled out and targeted because he has thwarted the criminal activities of criminal group group. [18] The question of which group has targeted the claimant is more difficult. Colombia has myriad armed groups engaged in illegal economies, including ELN guerrillas, numerous “dissident” groups that emerged from the 2017 demobilization of the FARC; and the Gaitanist SelfDefense Forces of Colombia (AGC), which emerged from the demobilization of paramilitary groups in the mid-2000s and are also known as “Gulf Clan.”[1] Many of these groups have fluid and complex links to each other. Some are parties to non-international armed conflicts. These armed groups frequently change names or composition, for example, as the conflict dynamics shift, leaders are killed, or groups merge or hybridize.[2] [19] I ultimately find that it is not material which criminal organization was responsible for the threats against the claimant, given the myriad organized criminal groups which carry out murders, kidnapping and other crimes throughout the country. As noted by Human Rights Watch, there are many groups which are well-organized and commit serious abuses against civilians, including killings, child recruitment, and rape. They are particularly powerful in rural areas of the Pacific region and along the Venezuelan border, which is the area in which the claimant lived and worked. Security forces and judicial authorities have failed to effectively protect the population, ensure victims’ access to justice, and prosecute and dismantle the groups.[3] [20] The UN Commissioner for Human Rights reports that armed groups exercise control through coercion, intimidation and violence.[4] An IRB Response to Information Request reports that in general, criminal groups target those they see as an “annoyance” or “obstacle” to their economic goals in an area.[5] The claimant, who has identified and XXXX XXXX XXXX XXXX, would be undoubtedly be considered an obstacle by those whose illicit activities have been thwarted. [21] On a balance of probabilities, I find that the claimant has established that he would be killed if found by the men who have attempted to take his life. I further find that the risk the claimant fears is distinguishable in nature and degree from the risk faced generally by people in Colombia. He is not facing random violence; rather, he has been singled out because his work interfered with the ability of a criminal organization to conduct its business. [22] In sum, I find that the claimant faces a risk to his life in Colombia which is not generally faced by others in that country. State Protection [23] In assessing state protection, there is a presumption that the state can protect its citizens except in situations where the state is in complete breakdown. In this case, I find that the presumption does not hold. [24] The claimant testified that he went to the police in XXXX 2022, to report the attempted attack by the men on motorcycle. The police refused to accept the complaint, as the claimant was unable to give them specific information, such as the licence plate for the motorcycle. The claimant and his wife took measures to protect themselves, by immediately moving to a new place. [25] The country reports confirm that the police in Colombia are unwilling or unable to provide protection against armed groups. In areas where guerilla groups have a strong presence, the ability of the Colombian government to provide protection is highly limited due to factors including, capacity, presence and possible corruption and complicity at the local level.[6] [26] EASO attributes the absence of the State as the main driver in the proliferation and strengthening of criminal groups that seek to replace the State in these areas. The judicial system is reported to be overburdened and inefficient, with trial processes that are very slow due to, among other reasons, the “reduced number of judicial police officers, the delays in processing evidence and the excessive prosecutorial workloads”. Impunity for crimes committed in the country remains high, with impunity for human rights violations in the context of the conflict exceeding 90 per cent.[7] [27] Based on the country condition evidence before me, as well as the claimant’s experiences, I find that the claimant cannot expect meaningful protection from the Colombian state. Internal Flight Alternative [28] I have also considered whether the claimant may avoid the harm he fears by relocating to another part of Colombia, and find he cannot. [29] The test to be applied in determining whether there is a viable internal flight alternative (“IFA”) is two-pronged. Firstly, I must be satisfied, on a balance of probabilities, that the claimant would not face, on a balance of probabilities, a personalized risk to his life or a risk of cruel and unusual treatment or punishment 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 them to seek refuge there. Both prongs must be satisfied if I am to find that the claimant has a viable IFA. [30] At the hearing, I proposed Bogota as a potential IFA location. [31] In terms of the first prong, the country reports indicate that criminal groups have the capacity to carry out attacks in all parts of Colombia, irrespective of their areas of control, and to trace and target individuals, both in rural areas and in cities such as Bogotá, Cali, and Medellín.[8] This is due to “word of mouth” through country-wide networks or “urban collaborators”, contacts in intelligence agencies and the army, as well as networks with other criminal groups.[9] [32] In other words, the agents of harm have the capacity to track the claimant. The question is whether they would be motivated to do so. In the present case, I find it unnecessary to decide the question based on the first prong. [33] Instead, I turn to the second prong of the IFA analysis, and focus on whether it would be reasonable to expect the claimant, given his particular profile, to relocate. After considering the country reports, I find it would not, given the poor safety and security situation in the proposed area of relocation, as well as the possibility for economic survival. [34] According to a report prepared by the Norwegian Refugee Council, approximately 89 per cent of the historical eight million internally displaced persons (IDPs) within Colombia have been displaced from rural to urban areas by conflict and violence, and informal settlements have become a refuge of last resort for many. These densely populated areas have high levels of poverty and inequality, inadequate housing and few if any basic services. Urban violence has triggered new and secondary displacement from some settlements, creating a downward spiral of vulnerability and risk. Violence in informal settlements, caused mainly by gangs and criminal organisations, triggers displacement between urban areas, also known as intra-urban displacement. Illegal armed groups exert social and territorial control over many urban areas in Colombia, and their activities force people, including those already displaced at least once, to flee from one neighbourhood to another. [10] [35] Where the proposed area of relocation is an urban area where the applicant has no access to accommodation and livelihood options, and where he/she cannot be reasonably expected to fall back on meaningful support networks, the applicant will likely find himself or herself in a situation comparable to that of urban IDPs.[11] [36] In the present case, the claimant does not have family in the proposed IFA who provide a measure of support. As such, he would likely find himself or herself in a situation comparable to that of urban IDPs. The claimant is already struggling with poor mental health, which was triggered during the first threat to his life in 2016. It would be unreasonable to expect the claimant, given his particular vulnerability, to relocate to an area rife with chronic insecurity, a severe shortage of housing, and acute poverty. [37] As it would be unreasonable to expect the claimant, given his profile, to relocate to Bogota, I find he does not have a viable internal flight alternative in Colombia. CONCLUSION [38] In conclusion, having considered the totality of the evidence before me, I find that the claimant is a person in need of protection under subsection 97(1) of the Immigration and Refugee Protection Act, and I accept his claim. ——— REASONS CONCLUDED ——— [1] Ex. 3, NDP Colombia, tab 2.2: Colombia. World Report 2023: Events of 2022. Human Rights Watch. January 2023. [2] Ex. 3, National Documentation Package, Colombia, 31 August 2023 [NDP Colombia], tab 1.24: EASO Country of Origin Information Report. Colombia: Country Focus. . European Union. European Union Agency for Asylum. December 2022. [3] Exhibit,3 tab 2.2: Colombia. World Report 2023: Events of 2022. Human Rights Watch. January 2023. [4] Ex. 3, NDP Colombia, tab 2.5: Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia . United Nations. Human Rights Council. 27 February 2023. A/HRC/52/25. [5] Ex. 3, NDP Colombia, 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. [6] Ex. 3, NDP Colombia, 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. [7] Ex. 3, NDP Colombia, tab 1.24: EASO Country of Origin Information Report. Colombia: Country Focus. . European Union. European Union Agency for Asylum. December 2022. [8] Ex. 3, NDP Colombia, 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. [9] Ex. 3, NDP Colombia, 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. [10] Ex. 3, NDP Colombia, tab 14.4: ‘From Aid to Empowerment’: Addressing urban displacement in Colombia’s informal settlements. Norwegian Refugee Council. Internal Displacement Monitoring Centre. Pablo Cortés Ferrández. November 2020. [11] Ex. 3, NDP Colombia, 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.