TC2-02721

RAD File / Dossier de la SAR : TC2-02721 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal

XXXX XXXX XXXX XXXX XXXX Personne en cause Date of decision 6 June 2022 Date de la décision Panel Pamela Arnott Tribunal Counsel for the person who is the subject of the appeal Tyler Goettl Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX XXXX XXXX XXXX (Principal Appellant) is a citizen of Colombia. She fears extortionists who have threatened and extorted her son and others through his businesses in Bogota. Her claim before the Refugee Protection Division (RPD) was heard with her daughter's claim. While the daughter's claim was accepted, the Appellant's claim was denied on the basis of generalized risk. I agree that this is the determinative issue. [2] The Appellant is not seeking to admit new evidence nor requesting an oral hearing.

DECISION [3] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection.

ANALYSIS [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [5] The Appellant does not contest that there is no nexus to the Refugee Convention in this claim. [6] Section 97(1)(b) of the Act deals with a claim of generalized risk. The claimant must establish two conjunctive elements: 1) The claimant must establish that there is a personal risk; and 2) the claimant must establish that the risk faced by them is not one faced generally by others in or from their country. The Refugee Appeal Division (RAD) has several sets of Reasons of Interest regarding the analysis of a claim under section 97(1)(b)(ii) of the Act.2 I have applied the following framework of analysis from the Federal Court and those Reasons of Interest: "First, decision-makers must assess whether the evidence establishes on a balance of probabilities (that is that it is more probable than not) that the claimant personally faces a forward-looking risk to life or a risk of cruel and unusual punishment or treatment. This part of the analysis requires identifying the Appellant's precise risk, determining whether that risk is a risk to life or a risk of cruel and unusual treatment or punishment, and expressing the basis for that risk. .... The second step of the analysis requires decision makers to compare the nature and the degree of the risk to see if it is the substantially

the same as the risk faced generally by other individuals in or from that country."3 This is an individualized assessment of whether the Appellant faces an ongoing or future risk in her country of origin.4 Factors to consider in this inquiry include the nature of the risk, the basis for the risk, the severity and pattern of the risk and any changes over time of the risk.5 [7] The Appellant is an older woman who faces a risk of harm due to her familial relationship to her son (who owned businesses extorted by an organized crime group) and to her daughter (who was threatened by the same organized crime group). The nature of the risk is physical harm or death. The basis for the risk is the familial relationship to the business. The severity of the risk is high given the violence that the extortionists have shown to her son, her daughter and the office manager. The risk began after the son stopped making extortion payments in XXXX 2020 and peaked in XXXX 2020 when the extortionists began to call the daughter multiple times each day. There is no pattern to the risk as the Appellant was not identified by name by the extortionists and was never contacted by them. The pattern in relation to the daughter was an escalation in XXXX 2020 and a diminution once the daughter could not be contacted. As recently as 2021, the office manager began to receive threatening calls, was robbed twice,

had her home burglarized, and company property was stolen. The evidence indicates that the extortionists targeted the office manager of the son's business in XXXX or XXXX 2021 when they could not reach the son.6 The evidence from the office manager is that a subsequent robbery in XXXX 2021 may not be related to the extortionists.7 There is no evidence of activity from the extortionists since this time. [8] As the jurisprudence indicates, it is not sufficient to conclude that the risk of criminal activity encountered by the Respondent is generalized because a significant portion of the population is subject to that same criminal activity.8 The RPD noted that there is a significant problem of extortion in Colombia, based on the country condition evidence.9 However, in order to meet the test of section 97(1)(b), the risk to the Appellant must be personalized. [9] The factors that point to the Appellant's risk are the following. Her daughter testified that the extortionists knew that the Appellant lived with her daughter and knew the address of the apartment. Two out of three children of the Appellant are targeted by the extortionists. The threats from the extortionists continued for 10 months and, while the threats abated in frequency, they did not abate in severity. [10] The factors that do not support a risk to the Appellant are the following. She was never a direct target of

the extortionists when she was in Colombia. She was never contacted by them, including (as noted by the RPD) during the months when the extortionists' main targets, her son and daughter, were unavailable to the extortionists. Both the son and daughter testified that the extortionists made their threats in general terms such as "your family". The extortionists consistently targeted the business, by calling the business number, going to the business address and targeting the business manager who lived above the company headquarters. [11] The country condition evidence for Colombia shows that extortion is a common practice for common criminals as well as Colombia's multinational cartels. It also indicates that the transportation industry (such as the Appellant's son businesses) is highly affected by extortion. Extortion affects "owners of businesses (be they large, medium or small) and persons of all social sectors."10 The Appellants provided articles referring to the use of extortion by all the major organized crime groups,11 which is consistent with the information in the country condition evidence.12 "Extortion has become a significant source of funding for all armed actors..."13 In reviewing the country condition evidence, the prevalence of extortion across Colombia has not changed from the older to the more recent sources. [12] On a balance of probabilities, I find, on a balance of probabilities that the Appellant does not face a risk which is different from other people in Colombia. [13] Based on my review of the totality of the evidence, I find that the Appellant faces a generalized risk and is not a person in need in protection under section 97 of the Act.

CONCLUSION [14] Pursuant to section 111(1)(a) of the Act, I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Pamela Arnott Pamela Arnott 6 June 2022 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 3 Portillo v. Canada (Citizenship and Immigration), 2021 FC 678 (CanLII) ("Portillo") at para. 40-41. See also X (Re), 2020 CanLII 118659 at para. 7-8. (IRB Reasons of Interest, Decision TB9-03925) (https://www.canlii.org/en/ca/irb/doc/2020/2020canlii118659/2020canlii118659.pdf, accessed January 8, 2022.) Th 4 Prophète v. Canada (Citizenship and Immigration), 2009 FCA 31 at para. 7. 5 X (Re), 2021 CanLII 95825 at para.

23. These factors were identified in Portillo. 6 RAD-1, Transcript of RPD hearing (January 19, 2022) at pages 23-24. The son testified that the office manager was accosted by unnamed men in XXXX or XXXX 2021. They stole money she was taking to the bank and mentioned the son and daughter. 7 RPD-1, RPD Record, See Exhibit 5.1, Report to Fiscalia at pp. 238-420. In November 2021, the office manager's home was invaded and property stolen by unknown men. The office manager reported to police that the thefts may have been due to taxi drivers who lost their cars and income from the business. 8 Herrera Chinchilla v. Canada (Citizenship and Immigration), 2014 FC 546 (CanLII) at para. 28. 9 RPD-1, Reasons for Decision at para. 45 citing NDP for Colombia, items 1.7, 1.8, 4.3, 4.4, 4.5, 7.2, 7.10,7.11, 7.28 and 7.25 10 RPD-1, National Documentation Package for Colombia (31 August 2021), item 1.7 "UNHCR Eligibility Guidelines for ...." at p 128. 11 RPD-1, Exhibit 6 "GameChangers 2019" Insight Crime; "Former FARC commanders say they ...." (The Guardian); "FARC Dissident Groups" (Colombia Peace). 12 See RPD-1, National Documentation Package for Colombia (31 August 2021), items 1.7, 1.8. 4.3, 4.4, 7.4, 7.11, 7.18, 7.20, 7.24, 7.27,7.28, 7.35, 7.37. 13 Ibid note 10 at p 126. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC2-02721 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français