TB1-16999

RPD File No. / N° de dossier de la SPR : TB1-16999 TB2-09519 TB2-09548 Private Proceeding / Huis clos Reasons and Decision ? Motifs et Décision Claimant(s) XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Demandeur(e)(s) d'asile Date(s) of Hearing February 4, 2014 February 18, 2014 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision March 13, 2014 Date de la décision and reasons et des motifs Panel Patricia Greenside Tribunal Counsel for the Claimant(s) Michael Brodzky Barrister and Solicitor Conseil(s) du (de la/des) demandeur(e)(s) d'asile Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, all citizens of Colombia, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1 The claimants' identities have been established through certified copies of their passports.2 [2] As XXXX XXXX XXXX was the claimant who provided most of the testimony at the hearing, she is referred to as 'the claimant' throughout this decision. (XXXX XXXX XXXX XXXX, is referred to as 'XXXX' and XXXX XXXX XXXX XXXX XXXX as 'XXXX'.) ALLEGATIONS [3] The claimants made the following allegations in the original and amended narratives of the Personal Information Forms (PIF).3 [4] The claimants allege that they and their family members were victims of persecution, extortion and threats by members of the United Auto-Defence Forces of Colombia (UAC) and the Revolutionary Armed Forces of Colombia (FARC) for many years (citing incidents beginning in 2000). [5] In XXXX 2009, following a telephone call from a member of the FARC who threatened the claimants with death, the claimants all fled to Venezuela. The claimants returned to Colombia in XXXX 2010. [6] In XXXX, 2011, following another telephone call from a member of the FARC who threatened the claimants with death, the claimants all fled again to Venezuela. [7] XXXX came to Canada on XXXX XXXX, 2011. The claimant and XXXX remained in Venezuela before returning again to Colombia in XXXX 2012. [8] XXXX XXXX 2012, following another threatening telephone call and the death of a relative, the claimant and XXXX again left Colombia and went to Venezuela. They returned to Colombia briefly in XXXX 2012 before coming to Canada. The claimant arrived in Canada on XXXX XXXX, 2012 and XXXX arrived in Canada on XXXX XXXX, 2012. DETERMINATION [9] I find that the claimants have not satisfied the burden of establishing a serious possibility of persecution on a Convention ground, or that they would personally be subjected, on a balance of probabilities, to a danger of torture, or a risk to life, or a risk of cruel and unusual treatment or punishment upon return to their country. Therefore, I find that the claimants are neither Convention refugees nor persons in need of protection pursuant to sections 96 and 97(1) of the IRPA. ANALYSIS [10] The determinative issues in this case are subjective fear, whether there is adequate state protection in Colombia and whether the claimants have provided clear and convincing evidence of the state's inability to protect them. Subjective Fear -Three-time Re-availment to Colombia [11] I draw a severe negative inference on the claimants' credibility with regards to their subjective fear as a result of their re-availments to Colombia. The claimant and XXXX returned to Colombia on three separate occasions, and XXXX returned to Colombia once. The fact that the claimants re-availed themselves to Colombia on all these occasions, without substantive reasons for having done so, given their ongoing assertions of fear of death, severely undermines their credibility. The claimant testified that they fled to Venezuela in XXXX 2009, fearing for their lives as a result of a threatening telephone call they received from a member of the FARC; and they all returned to Colombia in XXXX 2010 because they were unable to secure adequate employment and they were living in a warehouse. I find that the claimants' return to a country which they stated they fled fearing for their lives is not reasonable. Although it may have been difficult to secure employment, and their living accommodations may not have been what they hoped for, I find that someone genuinely fearing for their lives will exhaust every possible option before returning to the country they fear. As they did not do so, and instead returned to Colombia, I draw negative inference on the credibility of their assertion of fear. [12] The claimant testified that as a result of another threatening telephone call they received from a member of the FARC in Colombia, and fearing for their lives, they again fled to Venezuela in XXXX 2011. She testified that she and XXXX remained in Venezuela until XXXX 2012 (XXXX came to Canada in XXXX 2011), and then she and XXXX returned to Colombia in XXXX 2012. She testified that they returned to Colombia on this occasion because, since they intended to come to Canada, they were attempting to sell their business in Cali, Colombia, which required their attendance in the country. The claimant testified that whilst in Venezuela, they continued to carry on business in Colombia, through communications by telephone and internet with someone they had entrusted to operate the business for them; and they purchased and shipped merchandise for the business from Venezuela to Colombia so that the business continued in Colombia during their absence. I find that the reason for returning to Colombia is, again, not consistent with someone genuinely fearing for their lives. Insufficient evidence was adduced to indicate that it was necessary for the claimants to return to Colombia in order to sell their business, or that the claimant would not have been able to attempt to sell their business in Colombia, from Venezuela, either with the assistance of the person they entrusted to help run the business, or with the assistance of another individual through a Power of Attorney. I find it reasonable that they would have made attempts to sell the business without retuning to Colombia, however no evidence was adduced to indicate that they did. Consequently, I draw a further severe negative inference from this second return to Colombia. [13] The claimant testified that in XXXX 2012, following another threatening telephone call by a member of the FARC and the death of her aunt (and the perceived threat her death posed on them), she and XXXX again fled to Venezuela fearing for their lives. She testified that they returned to Colombia in XXXX 2012 because they had decided that they wanted to come to Canada, and they were required to go through Colombia first, as they did not have any Venezuelan documents, and hence would have been unable to leave from Venezuela. The claimant testified that she left Colombia to come to Canada on the same day she arrived there, and XXXX remained in Colombia for another 12 days, as he had some legal matters to tend to. Insufficient reliable evidence was adduced to indicate that it was necessary for them to return to Colombia, or for XXXX to remain there for the time that he did, before coming to Canada. [14] Also worthy of note is that the claimants did not at any time seek out any information about, or apply for, refugee protection in Venezuela. The claimant testified that they did not even inquire about it because they believed that the Venezuelan government protects members of the FARC, and so it would not have been possible. [15] Based on the totality of the evidence adduced, I find that if they truly feared for their lives, the claimants would have done whatever was necessary to attempt to regulate their status in Venezuela, and would not have taken the allegedly self-endangering action of returning to Colombia absent a very strong reason to do so. The claimant's reasons for returning to Colombia several times were not compelling, given the claimant's assertion of fear. I find that if the claimants truly feared returning to Colombia, they would have sought out the information necessary to seek protection for themselves in Venezuela, but insufficient reliable or probative evidence was provided to indicate that they did. This inaction on the part of the claimants, coupled with the repeated re-availments to Colombia, all further undermine the credibility of their testimony as it relates to their subjective fear. [16] The Federal Court has upheld Refugee Protection Division decisions rejecting claims decided under s. 97(1) because of a lack of subjective fear based on a delay in claiming protection in Canada, failing to seek protection in a third country, delay in leaving the country of persecution, or returning to that country.4 [17] Considering all the evidence, I find the claimants lacked subjective fear of persecution in Colombia. The Board has been upheld in its position that re-availment, unless for "pressing reasons," is incompatible with a genuine fear of persecution and is generally fatal to a claim for refugee protection.5 [18] Notwithstanding the aforementioned serious credibility concerns relating to their subjective fear, I have also considered the issues of state protection. State Protection [19] There is a presumption that, except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. The presumption that a state is capable of protecting its citizens underscores the principle that international protection comes into play only when a refugee claimant has no other recourse available. Having canvassed the country conditions documents, I find that Colombia is in effective control of its territory and has in place a functioning security force to uphold the laws and constitution of the country.6 [20] To rebut the presumption of state protection, a claimant must provide "clear and convincing" confirmation of the state's inability to protect its citizens.7 A claimant who alleges that state protection is inadequate must persuade the Board that the evidence establishes that the state protection is, in fact, inadequate. The evidence that state protection is inadequate must not only be reliable and probative, it must also satisfy the Board, on a balance of probabilities, that state protection is inadequate.8 Where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that the state's efforts are not always successful will not rebut the presumption of state protection.9 [21] Refugee protection is meant to be a form of surrogate protection, to be invoked only in those situations where the refugee claimant has unsuccessfully sought the protection of their home state. The onus is on the claimant to approach the state for protection in situations where state protection might be reasonably forthcoming.10 To qualify for refugee status, a claimant must satisfy the Board that he or she sought, but was unable to obtain, protection from their home state, or alternatively that their home state, on an objective basis, could not be expected to provide protection.11 In the absence of a compelling explanation, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim, at least where the state is a functioning democracy with a willingness and the apparatus necessary to provide a measure of protection to its citizens.12 [22] A claimant's burden of proof is directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all courses of action open to them.13 In a functioning democracy, a claimant will have a heavy burden when attempting to show that they should not have been required to exhaust all of the recourses available to them domestically before claiming refugee status.14 [23] The documentary evidence before the Board indicates that Colombia is a democracy, and there are free and fair elections.15 There is a relatively independent and impartial judiciary. Local failures by authorities to provide protection do not mean that the state as a whole fails to protect its citizens, unless the failures form part of a broader pattern of the state's inability or refusal to provide protection.16 [24] The Board is not obliged to prove that Colombia can offer the applicant effective state protection; rather, the applicant bears the legal burden of rebutting the presumption that adequate state protection exists by adducing clear and convincing evidence which satisfies the Board, on a balance of probabilities.17 [25] There is persuasive evidence that indicates that Colombia candidly acknowledges its past problems, and is making serious efforts to rectify the corruption and impunity that exists. The Board accepts that Colombia is experiencing challenges in addressing the criminality and corruption that exist within the security forces in Colombia. The Board recognizes that there are some inconsistencies among several sources within the documentary evidence; however, the preponderance of the objective evidence regarding current country conditions suggests that, although not perfect, there is both effective and adequate state protection in Colombia, that Colombia is making serious efforts to address the problem of criminality, and that the police are both willing and able to protect victims. [26] Having considered the totality of the evidence in this case, I find that the claimants have failed to rebut the presumption of adequate state protection, as they failed to provide clear and convincing evidence that the state protection available to them in Colombia would be either ineffective or inadequate. [27] The claimant testified that they were forced to move around the country as a result of ongoing threats of death forwarded by members of the FARC, dating back to 2000. She testified that the first time she was personally threatened by a member of the FARC was in XXXX 2007, when she and her family were threatened with death, and told by members of the FARC that they would take their son, XXXX, if she and her husband refused to collaborate with them (by providing them with food and clothing). The claimant testified that out of fear of reprisal, they complied with their demands. She testified that the following day, she reported the incident to the police verbally; and the police told her that they would investigate. She testified that she did not obtain any document or report from the police at that time, and they left town the same day. The claimant testified that they have made no attempts since that time to obtain a report from the police relating to the complaint they made, because she had no one in Colombia to ask for assistance from. [28] I find the claimant has failed to provide clear and convincing evidence of the state's inability or unwillingness to provide her with protection as it relates to this incident. In this particular case, there is no information to suggest that police were not making genuine and earnest efforts to investigate the claimant's allegations and apprehend the claimant's perpetrators. The police received her complaint and initiated an investigation, which indicates a willingness to provide protection to the claimants. No state is expected to guarantee perfect protection to all of its citizens at all times and the fact that the state is not always successful in protecting its citizens is not enough to justify a claim, especially where a state is in effective control of its territory, has military, police and civil authorities in place and is making serious efforts to protect its citizens.18 Less than perfect protection is not a basis to determine that a state is either unwilling or unable to offer reasonable protection.19 [29] The claimant testified that after leaving town XXXX XXXX 2007, they returned in XXXX 2009. She testified that upon returning, members of the FARC again attended her home and demanded money and supplies, and threatened to take XXXX or set their house on fire if they refused. The claimant testified that they managed to flee the house before members of the FARC set it on fire. The claimant testified that as they were fearing for their lives, they boarded a bus the same day for Bogota, and did not file a report with the police. She testified that she never spoke with the police. In subsequent testimony, the claimant stated that as she had been informed that the police were aware of the incident, she called them approximately a week later. I find this contradictory testimony troubling, however, even if I was to accept that the claimant spoke to the police at some time, I find that insufficient reliable or probative evidence was adduced to indicate that the police were not making genuine efforts to investigate the matter or protect the claimants. The claimant testified that she was told by the police that it was best that the claimants stay in Bogota, and not return to the house until they were able to clear the area and ensure that the FARC had left. Given the police were already aware that the claimants had sought refuge in Bogota, such a response does not indicate either an unwillingness or inability to provide the claimants with adequate protection. I find that based on the particulars of this incident, insufficient reliable evidence was forwarded to indicate that any actions taken by the police were inadequate or ineffective. [30] The claimant testified that it was whilst in Bogota in XXXX 2009 that she received a telephone call from a member of the FARC, who threatened her and her family with death for not having complied with their demands, which precipitated their first flight to Venezuela. The claimant testified that in XXXX 2011, they again received a threatening telephone call from a member of the FARC, who threatened to kill them. The claimant testified that they did not report either of the threatening telephone calls to the police, as they believed that nothing would be done, and instead left for Venezuela the day following each incident. Worthy of note is that although XXXX originally testified that they reported this threat to the police, he later testified that he did not report it to them because he was aware of many others who had, and who were subsequently murdered as a result of such reporting. Although questioned, XXXX provided no specific details pertaining to the others that he was referring to. As a result of the contradictory testimony, as well as the lack of details pertaining to those he alleges were murdered as a result of such reporting, I give little weight to this testimony of XXXX. As the claimants failed to report the incidents to the police, they failed to provide them with an opportunity to provide protection, and as such, have failed to rebut the presumption of adequate state protection. Although the claimants might have a reluctance to approach the state as a result of their beliefs about state protection in Colombia, I find that it does not obviate the need for them to attempt to seek it. A claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state.20 Doubting the effectiveness of the protection offered by the state when one has not really tested it does not rebut the existence of a presumption of state protection.21 It also does not relieve the claimant from seeking available redress before seeking protection from another state.22 I further find that insufficient reliable and probative evidence was adduced to indicate that their risk of harm would have been heightened by seeking state protection. [31] The claimant testified that after returning to Colombia in XXXX 2012, they again received a threatening telephone call from a member of the FARC. The claimant also testified that: her aunt, XXXX XXXX, was killed by a member of the FARC; she was told by Ms. XXXX housekeeper that before murdering her aunt, the murderer asked for the claimant and he left a note; she believes this note was meant as a reminder of the threat of death to them, for non-compliance to their demands. The claimant testified that she left the country and returned to Venezuela within a day or two of the incident, never having contacted the police to report either the threatening telephone call or the suspected correlation of her aunt's death to her and her family. The claimant did not provide a copy of the note to the Board, and she testified that she does not know what happened to it, nor does she know the current whereabouts of the housekeeper. [32] Upon careful analysis of the evidence, I find that insufficient reliable corroboratory evidence was forwarded to indicate who was responsible for the death of the claimant's aunt, or that any note was left behind, either identifying the FARC or indicating that the death of Ms. XXXX was related to the claimant. The claimant testified that: her aunt was considered wealthy as she owned properties in the region; the person who allegedly told the claimant that the killer asked for her has since left town; the claimant is not aware of whether her aunt's death was reported in any local newspapers, or if it was, any specifics contained in such a report; the claimant, herself, never spoke with the police about any assertions or beliefs that her aunt's death was related to her; and the claimant has no knowledge of the status or outcome of any investigation. Consequently, I find that insufficient evidence was adduced to establish the specific details of the incident, how it was related to the claimants' particular situation, or of the adequacy or effectiveness of the state's response. For all these reasons, I find that the claimant has again failed to provide persuasive evidence of the state's inability or unwillingness to provide protection. [33] The claimant submitted letters from various people attesting to the fact that they had knowledge of threats forwarded against the claimants.23 I find that these letters lend little evidentiary value to substantiate the claimants' allegations of threats, given the letters were written after the filing of this claim and the authors are not available to provide further evidence in relation to the statements. Notwithstanding the lack of reliable or probative supporting documentary evidence relating to any threats made against the claimants, I find that even if they were threatened, they have failed to provide clear and convincing evidence that state protection in Colombia, had they reasonably availed themselves of it, would be inadequate. [34] Two documents were provided to the Board which the claimant testified were filed with the authorities, one in Colombia,24 and the other in Venezuela.25 Upon questioning the claimant about these documents, I find they are of very little probative value in this claim. The document filed in Colombia at the Attorney General's Office is undated, and does not relate to any specific incidents, nor does it provide any detailed information; the claimant testified that they had been given a more detailed report at the time of attending the office, however it was left behind, and no efforts have been made to obtain a copy. The document which was filed by XXXX in Venezuela is also undated, and is simply his account of what happened; furthermore, an original of this document was not available for the Board's review of it's authenticity at the hearing. Worthy of note also, is that when asked why XXXX filed such a notice in Venezuela, the claimant testified that he did so in order to attempt to acquire citizenship. Given that the claimant testified they did not seek refugee protection at any time while in Venezuela, it remains unclear as to why such a declaration was necessary by XXXX. [35] Notwithstanding, and upon careful review of the totality of the evidence, I find that insufficient reliable and probative evidence was adduced to indicate that the claimants would have been at a heightened risk by having sought the protection of the police, or that it would have been unreasonable to believe that protection would be forthcoming should they have reasonably availed themselves to it, instead of leaving the country after each incident. Although the claimant testified that she thinks the state is unable to provide effective protection for its citizens, it does not relieve her from seeking available redress before seeking protection from another state.26 It is not enough for the claimant to show that her government has not always been effective at protecting persons in his particular situation.27 Less than perfect protection is not a basis to determine that a state is either unwilling or unable to offer reasonable protection.28 [36] Based on the totality of the evidence in the claim, I find that the claimants have failed to rebut the presumption of effective and adequate state protection with clear and convincing evidence. [37] As the IRPA is forward-looking, it is necessary for me to examine what situation the claimants would face if they returned to Colombia. To that end, I have considered the circumstances particular to the claimants, as well as the country documentation.29 Upon reviewing the country documentation pertaining to the state of Colombia and the extent of the FARC's control ten years ago, I find that it is not particularly relevant or indicative of the adequacy of available state protection to the claimants in Colombia today. [38] The claimant testified that she believes the FARC would still be interested in her and her family if they were to return to Colombia, because members of the FARC come from all walks of life, and she knows some of their identities; she also claims the FARC still holds an interest in her family because the farmhouse that they own is located in a remote area, which is desirable to the FARC. She testified that the police are unable to provide protection to the citizens who face such a risk because they themselves are afraid. Worthy of note is that the farm has been abandoned for some time, and insufficient evidence was forwarded to substantiate that the claimant's have any specific knowledge of the identities of the FARC that would put them at heightened risk. Furthermore, insufficient evidence was adduced to indicate that the claimant was ever sought out as a result of some particular knowledge she or her family possessed with regards to the identities of any member of the FARC. [39] The claimants also testified that the risk of harm faced by them is heightened as a result of XXXX young age. They fear that XXXX would be at risk of being recruited by the FARC, or even kidnapped by them in order to force the claimants to comply with their demands. Although the country documentation supports the assertion that young men are at risk of forced recruitment, or that the FARC use kidnapping as a tool to achieve their criminal intentions, I do not find that the claimants' have provided clear and convincing evidence that adequate and effective state protection would not be available to them, if they were to require and seek it. [40] Based on the totality of the evidence, I find that the claimants have failed to provide sufficient reliable and probative evidence to indicate that state protection would not be afforded them if they were to reasonably avail themselves of it. [41] I find that the claimants have not established they have a well-founded fear of persecution in Colombia. Furthermore, the documentary evidence indicates that the power and the reach of the FARC have diminished considerably since the claimants left the country. [42] Counsel submitted that there is country documentation to support the assertion that although there may be some level of protection for certain people in Colombia, protection for the average citizen is not effective or adequate.30 He submitted that: although Colombia is a constitutional democracy, there are very serious problems with the police and the courts, resulting in a failure to effectively protect its citizens; there is evidence of infiltration in the state authorities; there remains a high level of corruption and officials acting with impunity; there are a great number of internally-displaced people throughout the country who are more vulnerable and face a higher risk; despite some commanders of the FARC being eliminated, they continue to control certain rural areas; FARC has the apparatus to locate people throughout the entire country; and this is all indicative of the state's inability to adequately protect its citizens.31 [43] Counsel cited Toriz Gilvaja (2009 FC 598), submitting that as a result of widespread and continuing problems of corruption, Colombia is unable to provide its citizens with adequate protection. I find that this decision relating to the circumstances occurring in Mexico in 2009 are not particularly relevant to the case at hand, given the situation in Mexico, as well as the particular issues of consideration in that case, are not the same as those in this claim. Furthermore, as set out below, I find that Colombia is making serious efforts to address the problem of corruption, and that the police are both willing and able to protect victims. [44] Counsel also cited Murillo Torbada (2013 FC 957), submitting that the FARC continues to penetrate all aspects of the government and, as such, remain a significant risk to citizens in Colombia. Although the FARC may continue to pose a risk to some citizens in Colombia, I find that the claimants in this case have failed to provide clear and convincing evidence that the state protection, should they seek it, would be either ineffective or inadequate. [45] I recognize that there are some inconsistencies among several sources within the documentary evidence; however, the preponderance of the objective evidence regarding current country conditions suggests that, although not perfect, there is adequate state protection in Colombia for victims of crime, that Colombia is making serious efforts to address the problem of criminality and that the police are both willing and able to protect victims. The government continued efforts to improve respect for human rights and prosecute and punish officials, including members of the security services, who committed abuses, but some impunity persisted. The government took significant steps to increase resources for the Prosecutor General's Office.32 [46] While there is documentary evidence indicating that some persons of high profile may be at increased risk from the FARC and other paramilitary organizations, I find that the claimant has failed to provide sufficient reliable and probative evidence to indicate that this would be the case for her and her family, or that state protection would not be afforded them if they were to request it. [47] I acknowledge that while civilian authorities generally maintained effective control of the security forces, there were instances in which elements of the security forces acted in violation of state policy. Although significant human rights abuses remained, the government continued to make efforts to confront and address these abuses.33 [48] However, weighted against this is persuasive evidence that indicates that Colombia candidly acknowledges its past problems and is making serious efforts to rectify the corruption and impunity that exists. I accept that Colombia is experiencing challenges in addressing the criminality and corruption that exist within the security forces in Colombia. For instance, the documents indicate: [49] The most serious human rights problems were impunity and an inefficient judiciary, corruption, and societal discrimination. Impunity and an inefficient justice system subject to intimidation limited the state's ability to prosecute effectively those accused of human rights abuses and to process former paramilitaries. Corruption often was exacerbated by drug-trafficking revenue. Societal discrimination against indigenous persons and Afro-Colombians negatively affected the ability of these groups to exercise their rights. [50] Other problems included extrajudicial killings, insubordinate military collaboration with members of illegal armed groups, forced disappearances, overcrowded and insecure prisons, harassment of human rights groups and activists, violence against women, trafficking in persons and illegal child labour.34 [51] The Court has indicated that it is not enough to say that steps are being taken that some day may result in adequate state protection. It is what state protection is actually provided at the present time that is relevant.35 Regard must be given to what is actually happening and not what the state is endeavouring to put in place.36 Any efforts must have "actually translated into adequate state protection" at the operational level.37 [52] In response to the guidance from the Court, the documents indicate that the National Police of Colombia (Policía Nacional de Colombia), the Administrative Department of Security (Departamento Administrativo de Seguridad, DAS [DAS was scheduled to be disbanded by 2012]) and the Corps of Technical Investigators (Cuerpo Técnico de Investigación, CTI) of the Office of the Attorney General (Fiscalía General de la Nación) are the agencies responsible for receiving complaints of crimes such as homicide, bodily injuries, threats, sexual violence and harassment, trafficking in persons, theft, fraud, counterfeiting, extortion, terrorism and kidnapping. The documents indicate that extra-judicial killings by the military remain a problem in Colombia, although the number of extra-judicial killings has been dramatically reduced in recent years.38 The documentary evidence provides support that: The Prosecutor General's Office is the main entity responsible for investigating human rights abuses by security forces. As of November 15, a total of 1,746 armed forces personnel had been arrested and were awaiting trial for extrajudicial executions, all of which occurred before 2011. However, claims of impunity continued to be widespread, due in some cases to obstruction of justice, a lack of resources for investigations and protection for witnesses and investigators, delaying tactics by defence attorneys, the judiciary's failure to exert appropriate controls over dockets and case progress, and inadequate coordination among government entities that sometimes caused periods of incarceration to end, thereby resulting in a defendant's release from jail before trial. Many human rights groups criticized the Prosecutor General's Office for indicting low-ranking military personnel while avoiding investigations of higher-ranking commanders. The Ministry of Defence relieved from duty eight officers and 19 non-commissioned officers of the armed forces for inefficiency, unethical conduct, corruption, and other causes. Since 2000 at least 581 officers and 1,636 non-commissioned officers and soldiers have been retired from the army for these reasons.39 [53] The above-cited examples specific and concrete references to Colombia's efforts to combat and limit the corruption within the security forces. The government does investigate corruption, as evidenced recently when a report that the commander of the army Unified Action Groups for Personal Liberty (GAULA) in the department of Valle was detained and charged with extortion.40 [54] Concerning the reach and influence of the paramilitary organizations and the FARC, the documentary evidence is mixed, depending on who was consulted. Therefore, I have had to rely on the circumstances concerning this particular case and in relation to the documentary evidence, concerning whether the claimants would be pursued upon their return to Colombia. According to the documentary evidence, this would depend greatly on the value of that individual to the organizations. If the individual is a member of the political elite, business class, academia or professional class and was targeted by the FARC for extortion or coercion to cooperate and provide technical assistance to the FARC, that would render the individual a high-value target to the FARC.41 However, that is not to say that state protection would not be available to such individuals. [55] The documentary evidence indicates FARC has shown considerable resilience in the wake of the government's changed strategies to combat it. It is reported that there were more FARC attacks recorded in 2011 than in any of the previous 15 years, and that there has been a 44% increase in FARC operations between 2010 and 2011, from 167 attacks to 241.42 [56] With regard to military operations, the deputy-commander of the army was quoted as saying that joint military operations with the air force, the police and the navy will concentrate in "[translation] FARC "hot spots" such as the southern departments of Nariño, Cauca, Guaviare, and Putumayo, as well as in Antioquia, Córdoba, southern Tolima, Chocó, Norte de Santander, Arauca, and along the border with Venezuela." In the department of Meta, for example, the army dismantled nine FARC camps, including one that operated its own radio station called the Voice of the Resistance. Sources report that the Colombian police destroyed 24 coca laboratories in the departments of Antioquia, Bolívar and Córdoba; the Antinarcotics Directorate indicated that 10 of the 24 labs belonged to FARC. The police also confiscated 250 bars of explosive material known as pentolite from a courier company delivering the bars to a FARC block operating in San Vincente del Caguán, Caquetá. Sources also report that, in different parts of the country, the army captured FARC members and collaborators. On 20 November, 2011, 13 persons, one of whom was an arms dealer, suspected of collaborating with Front 36 of the FARC were captured in the city of Medellin and the town of Anori, both in Antioquia, and Barranquilla city. Also, there are reports regarding the arrest of the third in command of the Jefferson Cartagena company of FARC's Column 18 and in separate reports there are accounts of the arrest of 12 guerrilla support operatives in the department of Córdoba as they were processing coca paste. Also during the year, one of Cano's security officers was detained along with seven members of the FARC.43 [57] These examples are clear examples of the operational effectiveness of the Colombian government's efforts to combat the FARC. Guerrilla group members continued to demobilize. At the end of October, 2011, according to the Ministry of Defence, 1,314 members of guerrilla groups had demobilized compared with approximately 2,045 during the same period in 2010, a 36 percent reduction in demobilizations.44 [58] On 16 June 2011, the Colombian government issued its national development plan for 2010 to 2014 which established the National Policy for Territorial Consolidation and Reconstruction (PNCRT) to strengthen the state's presence in regions affected historically by illegally armed organizations and illicit crops. This new initiative focuses on combating guerrillas rather than narco-paramilitaries and drug traffickers. Reports indicate that the plan has successfully neutralized the threat posed to Bogota, the central zone, and the oil regions of the departments of Meta and Casanare, but it has not managed to control other localities contemplated in the PNCRT. There are reports that Colombian president Juan Manuel Santos replaced the Minister of Defence in August 2011 due to concerns that security in the country was deteriorating after attacks by the guerrillas had increased and that Santos ordered a review of territorial control in the country to deal with changes to the guerrilla's tactics and announced that the Unified Action Groups for Personal Freedom (Grupos de Acción Unificada por la Libertad Personal, GAULA) would join in the fight against criminal bands and guerrilla militias. The president has also announced a new strategy to fight the guerrillas called Operation Sword of Honour to evaluate FARC's fronts and militia structure, and will, accordingly, intensify operations of high strategic importance. The strategy plans to use the air force for surveillance in the south-eastern part of the country, as well as navy intelligence along the Pacific coast to prevent drug trafficking. The Board's documents also indicate that the police in Colombia have had many recent successes against the FARC, particularly in Bogotá and Cali and that many additional FARC Fronts have been impacted by Colombia's security response against them.45 [59] There is further documentary evidence which indicates that the FARC and other guerrillas have been "hit hard" and "contained" by the Colombian government, but that they still have about 8,000-10,000 members. The following indicates that: under the weight of the state offensive, the organizational structure has loosened, because: (a) The group's communication system was intercepted; (b) it lost several key cadres, and the information they held; (c) several structures were disarticulated, but even with these factors, FARC's command structure still has not collapsed. Former President Alvaro Uribe had pursued a "predominantly military approach" to ending "Colombia's generations of armed conflict." As a result, the military has re-established security along most main roads in the country, increased the presence of police in most municipalities to the extent that urban security has increased dramatically in the last 8 years and, as has been mentioned throughout, weakened the FARC, although it is acknowledged that there has been a strong impact on the civilian population in the more external areas of the country. The documents also indicated that 2,128 individuals voluntarily demobilized in 2009, 2,009 for 2010, and 339 for 1 January to 7 March 2011, although admittedly the government has not had as much success in integrating these demobilized individuals into the workforce.46 [60] Quite tellingly, the documentary evidence indicates the story of how Colombia was able to reverse this decline by taking control of previously ungoverned areas of the country and providing security to a far larger portion of its citizens may offer important lessons for other imperilled states (this was done with significant funding and assistance from the US). The reversal of this decline, which took place over the course of a decade, has brought Colombia to a point where its national security is no longer threatened by illegal armed groups or criminal elements.47 [61] In determining whether protection is adequate, it is important to analyze not merely whether a legislative and procedural framework for protection exists, but also whether the state, through the police or other authorities, is able and willing to effectively implement that framework.48 A state must engage in serious efforts to protect its citizens at the operational level.49 Although the documentary evidence for Colombia shows that there exists some level of tolerance by the police for some of the illegal groups in Colombia in certain situations, I find that there is insufficient evidence to indicate that this would be the case for these particular claimants. Summary [62] Upon review of the totality of the evidence, I find that there is insufficient persuasive evidence before me that the claimants would face persecution or, on a balance of probabilities, face a risk to life, or of cruel and unusual treatment or punishment, or a danger of torture, if they returned to Colombia. I find that the claimants are not Convention refugees pursuant to section 96 of the IRPA, nor are they persons in need of protection pursuant to sections 97(1)(a) and 97(1)(b) of the IRPA. CONCLUSION [63] Accordingly, the Refugee Protection Division rejects their claims for refugee protection. (signed) 'Patricia Greenside' Patricia Greenside March 13, 2014 Date 1 IRPA S.C. (2001), c. 27 as amended. 2 Exhibit R/A-2. 3 Exhibits C-1, C-2, C-3 and C-4. 4 Rivera, Jesus Vargas v. M.C.I. (F.C., no. IMM-5826-02), Beaudry, November 5, 2003, 2003 FC 1292; Borges, Antonio Luiz De Mello v. M.C.I. (F.C., no. IMM-2995-04), von Finckenstein, April 12, 2005, 2005 FC 491; Gilgorri, Ruben Dario Modernell v. M.C.I. (F.C., no. IMM-5423-05), Short, May 4, 2006, 2006 FC 559; Torres, Edison Colorado v. M.C.I. (F.C., no. IMM-7630-05), Harrington, July 27, 2006, 2006 FC 927; Mejia, Dario Edgardo Rodriguez v. M.C.I. (F.C., no. IMM-396-06), Mactavish, September 13, 2006, 2006 FC 1087; Sainnéus, Elange Bully v. M.C.I. (F.C., no. IMM-3777-06), Martineau, March 5, 2007, 2007 FC 249. 5Hevia, Emma Grizzel Diaz v. M.C.I. (F.C., no. IMM-4803-09), Near, April 29, 2010, 2010 FC 472; Rodriguez, Carlos Alberto Servillon v. M.C.I., (FCTD, no IMM-2815-01), Beaudry, March 20, 2002, 2002 FCT 292; Caballero, Fausto Ramon Reyes v. M.E.I. (F.C.A., no. A-266-91), Marceau, (dissenting) Desjardins, Létourneau, May 13, 1993. 6 Exhibit R/A-1, National Documentation Package (NDP) for Colombia (May 3, 2013). 7 Canada (Attorney General) v. Ward, [1993] S.C.R. 689. 8 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.). 9 Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.). 10 Canada (Attorney General) v. Ward, [1993] S.C.R. 689. 11 Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007, 2007 FCA 171 [Hinzman-Hughey]. 12 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 13 Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.). 14Hinzman-Hughey, Supra., footnote 11, at para. 46. 15 Exhibit R/A-1, item 2.1, US Department of State (DoS), Country Reports on Human Rights Practices for 2012, April 19, 2013 p. 1. 16 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 17 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.); Sanchez, Valentin Quintero v. M.C.I. (F.C., no. IMM-4478-10), Near, April 28, 2011, 2011 FC 491. 18Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.). 19 Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996. 20 Judge, Gurwinder Kaur v. M.C.I. (F.C., no. IMM-5897-03), Snider, August 9, 2004; 2004 FC 1089; Kim, Eun Mee v.M.C.I. (F.C., no. IMM-8191-04), Phelan, August 17, 2005; 2005 FC 1126; Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 21 Ramirez, Leticia Lizet Del Rio v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008; 2008 FC 1214. 22 Dorado, Raul Daniel Martinez v. M.C.I. (F.C., no. IMM-7491-05), Harrington, July 27, 2006, 2006 FC 928; Soto, Luis Angel Trejo v. M.C.I. (F.C., no. IMM-282-05), Pinard, December 20, 2005, 2005 FC 1654. 23 Exhibit C-6. 24 Exhibit C-6, item 8. 25 Exhibit C-6, item 11. 26 Dorado, Raul Daniel Martinez v. M.C.I. (F.C., no. IMM-7491-05), Harrington, July 27, 2006, 2006 FC 928; Soto, Luis Angel Trejo v. M.C.I. (F.C., no. IMM-282-05), Pinard, December 20, 2005, 2005 FC 1654. 27 Flores, Nubia Victoria Suarez v. M.C.I. (F.C., no. IMM-4613-07), Mosley, June 9, 2008, 2008 FC 723; Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.). 28 Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996. 29 Exhibit R/A-1. 30 Exhibits R/A-1 and C-5. 31 Exhibit R/A-1, item 2.1, item 2.2, item 7.5, item 9.6, item 10.3 [as stated by counsel at hearing]; and Exhibit C-5. 32 Exhibit R/A-3, NDP for Colombia (June 4, 2012), item 2.1, United States Department of State, Country Reports on Human Rights Practices for 2011, May 24, 2012, p. 1. 33 Exhibit R/A-1, item 2.1, p. 1. 34 Exhibit R/A-3, item 2.1, p. 1. 35 Hercegi, Jozsef v. M.C.I. (F.C., no. IMM-4225-11), Hughes, February 22, 2012, 2012 FC 250. 36 Bautista, Claudia Jacqueline Garcia v. M.C.I. (F.C., no. IMM-5647-08), Beaudry, February 8, 2010, 2010 FC 126. 37 Jaroslav, Spacil v. M.C.I. (F.C., no. IMM-3214-10), Kelen, May 31, 2011, 2011 FC 634. 38 Exhibit R/A-1, item 10.2, Response to Information Request no. COL104012.E, April 10, 2012. 39 Exhibit R/A-3, item 2.1, p. 7-8. 40 Exhibit R/A-1, item 10.2, Response to Information Request no. COL104012.E, April 10, 2012. 41 Exhibit R/A-1, item 14.7, Internal Displacement Monitoring Centre, Colombia: Improved Government Response Yet to Have Impact for IDPS, December 29, 2011. 42 Exhibit R/A-3, item 4.5, IHS Jane's, "FARC's Strategic Evolution", February 6, 2012. 43 All previous para. from Exhibit R/A-1, item 4.2, Response to Information Request COL103910.E, January 6, 2012. 44 Exhibit R/A-3, item 2.1, p. 15. 45 All previous para. from Exhibit R/A-1, item 7.4, Response to Information Request no. COL104013.E, April 11, 2012. 46 Exhibit R/A-1, item 7.5, Response to Information Request, number COL103709.E, April 5, 2011. 47 Exhibit R/A-3, item 10.1, Center for Strategic and International Studies, Countering Threats to Security and Stability in a Failing State: Lessons from Colombia, September 2009. 48 Elcock (Milkson), Joan Theresa v. M.C.I. (F.C.T.D., no. IMM-2985-98), Gibson, September 20, 1999; Torres, Betsabe Del Calmen Balmaceda v. M.C.I. (F.C., IMM-2009-04), Pinard, May 10, 2005, 2005 FC 660; Wisdom-Hall, Tanesha v. M.C.I. (F.C., no. IMM-4581-07), Hughes, May 28, 2008, 2008 FC 685. 49Velazquez, Rafael Sotelo v. M.C.I. (F.C., no. IMM-6581-10), Near, June 27, 2011, 2011 FC 775; Williams, Mishka Matika v. M.C.I. (F.C., no. IMM-735-11), O'Reilly, October 6, 2011, 2011 FC 1134. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : Error! No document variable supplied. RPD.29.1 (August 31, 2012) Disponible en français RPD File No. / N° de dossier de la SPR : TB1-16999 TB2-09519 TB2-09548