MB7-08741

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 File No. / N° de dossier de la SAR: MB7-08741 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 Appeal considered at Montreal, Quebec Appel instruit à Date of decision August 16, 2019 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the person who is the subject of the appeal Ali Yusuf Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Kamal Gill Conseil du ministre REASONS FOR DECISION I. INTRODUCTION [1] The Respondent, XXXX XXXX XXXX XXXX, is a citizen of Colombia who fears being killed by the criminal group XXXX XXXX after refusing to join their organization. [2] This is an appeal by the Minister from a re-determination of the RPD granting the claim for refugee protection on the basis that the Respondent is a person in need of protection pursuant to s. 97(1)(b) of IRPA. [3] On appeal to the Refugee Appeal Division (RAD), the Minister submits that the RPD erred in finding that the Respondent faces a specific prospective risk in Colombia; erred by failing to address whether the risk faced by the Respondent is a generalized risk similar to the risk faced by others; and erred in finding that the Respondent cannot avail himself of an internal flight alternative (IFA) in Colombia. [4] After conducting my own analysis of the record, I dismiss the appeal, finding that the Respondent is a person in need of protection. II. BACKGROUND AND OVERVIEW [5] The Respondent is an Afro-Colombian originally from XXXX. In 2009, he relocated to Bogota where he worked as a XXXX and part-time XXXX. [6] In XXXX 2015, the Respondent returned to live with his grandmother in XXXX after she became ill. [7] In XXXX XXXX XXXX 2015, two men approached the Respondent who was seated outside his grandmother's home. The men wanted the Respondent to join the criminal group XXXX XXXX XXXX When the Respondent expressed his refusal to join, the men promised that he would be killed. [8] The Respondent knew that XXXX XXXX is a powerful organized armed group that is active in XXXX and affiliated to paramilitary groups and powerful business financiers throughout Colombia. Fearing certain death from members of XXXX XXXX, the Respondent decided to flee Colombia. [9] At first, the Respondent returned briefly to Bogota where he learned that members of XXXX XXXX were looking for him in XXXX and keeping watch on his grandmother's home. [10] The Respondent was already in possession of a visa for the USA given that his XXXX group had previously been invited XXXX XXXX in Texas in 2014. On XXXX XXXX, 2015, the Respondent left Colombia and went to Miami. On XXXX XXXX, 2015, he made his way to Canada and claimed refugee protection. Chronology of the proceedings [11] On November 30, 2015, an initial hearing took place before the RPD (RPD#1). The Minister intervened by providing documents only. The RPD determined that the Respondent is a person in need of protection pursuant to s. 97(1)(b) of IRPA. The RPD found that the Respondent credibly established that he is targeted as a victim of crime and personally threatened by members of XXXX XXXX. Moreover, the RPD determined that the Respondent rebutted the presumption of adequate state protection and that he cannot avail himself of an IFA in Bogota as a XXXX man facing endemic racism in employment, housing and state services. The Minister appealed the decision to the RAD. [12] On April 5, 2016, the RAD (RAD#1) allowed the Minister's appeal and returned the matter to the RPD for redetermination, finding that the RPD failed to provide adequate reasons to support the decision. The RAD instructed the RPD to conduct a complete analysis of the issue of IFA. [13] On April 25, 2017, the file was returned to the RPD (RPD#2) for redetermination. The Respondent was unrepresented and the Minister did not participate. The RPD#2 determined that the Respondent is a person in need of protection pursuant to s. 97(1)(b) of IRPA based on the following: - The Respondent is a credible witness who established that he is personally targeted as a victim of crime by members of XXXX XXXX. - Documentary evidence including several affidavits, corroborated the credibility of the threat against the Respondent. He provided credible testimony that forced recruitment by gangs is not limited to children but also includes adults; - The nature of the threat against the Respondent is generally consistent with objective evidence regarding how criminal or former paramilitary groups operate in Colombia. - The neighbourhood where he was targeted is marked by XXXX XXXX. His opposition to the gang means that he has become an enemy. He is well aware of what happened to others who have been targeted and who defied the group. The group specifically targeted the Respondent by entering his grandmother's property and told him that the alternative was death if he refused to join. - While the Respondent did not seek out state protection prior to leaving Colombia, he was well aware that the level of operational effective state protection was limited in XXXX, particularly for XXXX XXXXColombians. The objective evidence points to widespread violence and impunity of XXXX XXXX and XXXX XXXX and continuing alliances and connections between the various criminal paramilitary groups, their infiltration into State agencies, and the lack of operationally effective assistance. - The Respondent could not avail himself of an IFA in Bogota. The existence of an internally displaced person's camp in Bogota is not a reasonable or viable option for an IFA. Moreover, the objective evidence shows that paramilitary criminal groups operate throughout Colombia thus supporting the Respondent's fear that the criminal group has the capacity to target them and kill them throughout Colombia. Moreover, given his success as a XXXX, he is easily recognizable on the street or elsewhere in Bogota. Finally, his ethnic identity as an Afro-Colombian presents certain challenges for him anywhere in the country given widespread discrimination in Colombia against XXXX-Colombians. III. DETERMINATIVE ISSUE [14] On appeal to the RAD, the Minister submits that RPD#2 erred in finding that the Respondent faces a specific prospective risk in Colombia and erred by failing to find that the nature of the risk faced by the Respondent does not extend beyond the risk that is faced generally by a vast majority of the population. Moreover, it is submitted that RPD#2 erred in finding that the Respondent does not benefit from an IFA in Colombia. [15] The Respondent submits that the principle of Res Judicata and issue estoppel applies to the present case meaning that the Minister is barred from raising issues previously decided by RAD#1. The Respondent further submits that the RPD did not err in finding that he is a person in need of protection in Colombia. IV. SCOPE OF THE RAD APPEAL [16] The RAD reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.1 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.2 Unless specifically stated below, I have applied the correctness standard in the present case. V. ANALYSIS 1. The doctrine of issue estoppel does not apply to the present case [17] A central issue raised by the Minister in the present appeal is that the risk faced by the Respondent in Colombia is a generalized risk and that he is not a person in need of protection. [18] The Respondent contends that the Minister is attempting to re-argue the issue of generalized risk even though this was already settled during the first appeal when RAD#1 found in favour of the Respondent. It is argued that the doctrine of res judicata and issue estoppel prevents the Minister from re-arguing or relitigating an issue already settled by RAD #1 given that the law seeks finality to litigation. [19] It is true that the law has adopted various doctrines in order to limit relitigation. One such doctrine is estoppel.3 [20] In Danyluk, the Supreme Court of Canada sets out three preconditions for the application of issue estoppel: (1) that the same question has been decided in earlier proceedings; (2) that the earlier judicial decision was final; and (3) that the parties to that decision or their privies are the same in both the proceedings.4 [21] I find that the doctrine of estoppel does not apply in the present case given that all of the preconditions set out in Danyluk have not been met. [22] As noted above, RPD#1 determined that the Respondent is a person in need of protection. RAD#1 allowed the Minister's appeal and returned the matter to the RPD for re-determination on the basis that the RPD#1 reasons are unclear and insufficient. The RAD#1 also instructed the RPD#2 to conduct a fulsome and adequate analysis of the issue of IFA. [23] While the Respondent submits that the RAD#1 decision already implicitly determined that the risk he faces in Colombia is not faced generally by others,5 I disagree. Rather, my review of the RAD#1 decision reveals that no specific findings were made as to whether the Respondent established a personalized or generalized risk in Colombia. Moreover, the RPD did not make any determination with respect to whether the Respondent is a Convention refugee or a person in need of protection. Rather, RAD#1 disposed of the appeal by returning it to RPD#2 for redetermination. This was the context in which RPD#2 re-heard the claim on April 25, 2017 and rendered a fresh decision granting the Respondent's request for refugee protection which is now the subject of the present appeal. [24] Considering that RAD#1 did not specifically determine whether the Respondent faces a personalized or generalized risk in Colombia and made no final decision regarding the merits of the refugee claim; and considering that RAD#1 referred the matter back to the RPD for redetermination, I find that the preconditions set out in Danyluk are not fully satisfied and the principle of issue estopped does not apply in the present case.6 Rather, the Minister is simply exercising his right to appeal the decision of RPD#2. 2. The RPD#2 did not err by finding that the Respondent is a person in need of protection pursuant to s. 97(1)(b) [25] Subsection 97(1)(b) of the IRPA confers protection to those facing a risk to life or a risk of cruel and unusual treatment or punishment. An individual claiming to be a person in need of protection must prove on a balance of probabilities that he is in Canada; his return to his country would personally subject him to a risk to life or to a risk of cruel and unusual treatment or punishment; the individual would face that personal risk in every part of his country; and the personal risk is not faced generally by other individuals in or from that country.7 [26] The analysis of a claim for protection under s. 97(1)(b) of IRPA requires an individualized assessment based on a two-step analysis of the claim. First, there must be an analysis of the Respondent's personal risk in Colombia, on a prospective basis. If a specific prospective risk exists, then the second step is to determine whether the identified risk is one faced generally by other individuals in or from that country.8 The Respondent established a personal prospective risk in Colombia [27] In the present case, the RPD#2 found that the Respondent's credible evidence proved a specific prospective risk in Colombia based on the following: ...The claimant fears that XXXX XXXX will interpret his refusal in opposition to them and their activities and, therefore, consider him an enemy. His description of the fear and panic he has experienced when he was approached by thugs from XXXX XXXX was most compelling. The claimant described the neighbourhood where he grew up in XXXX and where he was approached by thugs as territory that had been marked by XXXX XXXX and he was well aware of what had happened to others who had been targeted by them. In this case, the claimant was specifically targeted by the group who entered his grandmother's property for the specific purpose of demanding that he join them or face the alternative which would be death. Accordingly, and based on the totality of the evidence, I find the claimant has established that he faces a personal risk to his life or cruel or unusual treatment or punishment if he returns to Columbia.9 [Emphasis added] [28] It is clear from the Respondent's credible evidence that he was seated outside his grandmother's home in XXXX in XXXX 2015 when members of XXXX XXXX approached him for the purpose of recruiting him to their organization. When the Respondent refused, members of XXXX XXXX stated that he would be killed. [29] While the Minister appears to characterize the risk faced by the Respondent as a risk of recruitment, I find that this is in error. As noted by Counsel for the Respondent, his client is past the risk of being recruited. Rather, he faces a personal risk of being murdered after defying the group. As such, I find that the Respondent has established a personal risk to his life in Colombia. [30] In assessing the prospective nature of the Respondent's risk, the Minister emphasizes that the Respondent's encounter with XXXX XXXX occurred in 2015. As such, it is inconceivable that XXXX XXXX would have any continued interest in him following their initial contact, especially since the Respondent is no longer the primary age for gang recruitment and the gang's existence has been diminishing. [31] I disagree. [32] First of all, it bears repeating that following his encounter with XXXX XXXX in XXXX in XXXX 2015, the Respondent immediately fled to Bogota because he knew that other individuals who had defied the group had disappeared or were murdered. He understood from his experience living in Colombia that those who defy XXXX XXXX face certain death based on revenge. [33] The Respondent's testimony is compatible with the objective evidence. One report describes XXXX XXXX as a powerful paramilitary successor group in XXXX which "restrict residents' movements; recruit their children, extort their businesses, and routinely engage in horrific acts of violence against anyone who defies their will." [emphasis added]10 Moreover, sources report the existence of "chop-up houses" where the Urabenos and XXXX XXXX torture, slaughter and dismember their victims.11 [34] This is not the case of a petty criminal whose interest in the Respondent might wane over time. This is a criminal organization motivated to kill, based on revenge. While the Minister suggests that that it is inconceivable that the XXXX would still be motivated to harm him despite the passage of time, this is a plausibility finding which is not supported by the facts. [35] The Minister also submits that XXXX XXXX is a criminal group that has weakened with the passage of time. It is true that the situation has evolved in Colombia since the Respondent was threatened with death by members of XXXX XXXX in 2015. For example, more recent information indicates that at least 700 members of criminal groups, including two leaders of XXXX XXXX and Banda Local have been apprehended in XXXX in 2017.12 One source from 2016 suggests that XXXX XXXX seems to be disappearing with the arrival of XXXX XXXX XXXX in XXXX.13 [36] This being said, XXXX XXXX continues to exist and is now described as a criminal group affiliated with XXXX XXXX in order to control drug trafficking in XXXX and the XXXX. While the Ministry of Defence states that XXXX XXXX has been mired in internal disputes over the past three years and dismantled, the National Ombudsman's Office and INDEPAZ recorded activities from the XXXX in 2016. They were active in 59 municipalities and 18 departments in Colombia. According to the INDEPAZ report from 2017, XXXX XXXX is described as a drug-trafficking organization and transnational crime syndicate that interferes at the national level.14 [37] In sum, the RPD did not err in finding that the Respondent's credible evidence establishes that he faces a personalized prospective to his life in Colombia. The Respondent was personally threatened with death by members of XXXX XXXX after he defied their order to join their group. After fleeing XXXX, members of XXXX XXXX kept watch on the home of his grandmother, in an attempt to find him. Despite the passage of time and evolving nature of criminal groups in Colombia, the Respondent still faces a prospective risk from XXXX XXXX. The profile of this group is that they are motivated to kill those who defy them as revenge. The group which continues to exist, operates in XXXX and is affiliated with XXXX XXXX which operates at the national level. Based on the nature of the threat, the profile of XXXX XXXX and their affiliation to XXXX XXXX, I find there is no evidence to suggest that the risk to the Respondent from XXXX XXXX is diminished merely by the passage of time. The Appellant's personal risk is not one faced generally by individuals in or from Colombia [38] The next step of the analysis is to determine whether the specific prospective risk to the Respondent in Colombia is one that is faced generally by others. [39] I agree with the Minister that the RPD#2 erred by failing to address whether the personal risk faced by the Respondent is one faced generally by others in or from Colombia. I turn now to correct the error by conducting my own analysis of this issue based on the entirety of the record. [40] The Minister submits that the risk faced by the Respondent is generalized in nature which means that he is not a person in need of protection. The Minister states the following: Given the prevalence of gang activity in Colombia the RPD failed to conduct any analysis of whether the risk, recruitment into the gang and threats, faced by the Respondent is not faced generally by other individuals in or from that country. The purpose of gang recruitment is to bring other individuals into the gang. Although recruitment into the gang is personal it does mean that the risk is personal. In Colombia gang recruitment and threats is equally experienced by other individuals.15 [41] In support of this submission, the Minister relies on Perez, a Federal Court decision involving a young Honduran who was intimidated by gang members who wanted him to join them and who feared being harmed by the gangs should he return to Honduras. The Federal Court concluded that the risk is generalized given that a large subset of the population (all young men) are at risk of recruitment strategies similar to that alleged by the refugee claimant.16 [42] The Minister submits that Perez is similar to the present case. The fact that the Respondent was approached to join XXXX XXXX and threatened is insufficient to show that what he experienced is more than what others in Colombia who face gang recruitment and threats face. It is argued that while the Respondent's risk is more personal than most, it is still a generalized risk as it is experienced by a subset of the population. [43] I am not persuaded by the Minister's submission based on the factual presentation of this case. [44] First of all, as noted in Guerrero, it is an error to conflate the reason for the risk with the risk itself.17 In the present case, the Respondent does not just fear a specific criminal group called XXXX XXXX who wanted to forcibly recruit him. He is past the risk of being recruited and threatened. Rather, he now faces being killed after he defied their request to join the organization. The risk of death has now materialized.18 [45] For greater certainty, the Respondent's personal situation is different from a sub-group of Colombians who are subject to the generalized risk of initiation and gang recruitment. Rather, the nature of the risk faced by the Respondent has changed, since the risk is now murder after he defied the group. The Respondent is specifically and personally targeted with death which is non-generalized in nature. [46] As noted in Guerrero, "where a person is specifically and personally targeted for death by a gang in circumstances where others are generally not, then he or she is entitled to protection under s. 97 of the Act if the other statutory requirements are met."19 Internal Flight Alternative (IFA) [47] It is settled law that the onus is on the Appellant to demonstrate that it is unreasonable for him to seek refuge in a different part of his country before resorting to international protection.20 [48] This assessment is based on a two-prong test. First, the RPD must be satisfied that the Appellant does not face persecution or that he is not personally subjected to a risk to life or a risk of cruel and unusual treatment or punishment in the identified IFA. Secondly, the conditions in that part of the country must be such that it would not be unreasonable in all the circumstances, including those particular to the Appellant, for him to seek refuge there.21 [49] For the reasons that follow, I find that RPD#2 did not err in finding that the Respondent cannot avail himself of an IFA in Colombia. Based on the documentary evidence, it is more probable than not that the Respondent would face a risk to his life throughout Colombia. [50] The Minister submits that even if it is determined that the Respondent was personally targeted and therefore at heightened risk more than those who face gang recruitment and threats, then the Respondent can relocate safely elsewhere in Colombia as he has an IFA in Bogota, Cali or Medellin. More specifically, the Minister argues the following: - There is no evidence that XXXX XXXX has a national presence or reach. It is not one of the prominent gangs currently operating in Colombia. Therefore their ability to track the Respondent some three years after the alleged threats, in Bogota, Cali or Medellin is unlikely. - Objective evidence does not list XXXX XXXX as part of the organization of criminal bands (BACRIM) nor is XXXX XXXX one of the most important post-FARC drug trafficking gangs. - While XXXX XXXX allied with XXXX XXXX, XXXX XXXX is less significant than in previous years with the arrival of Clan de Golfo and they continue to disappear. - Moreover, the Respondent could reasonably relocate to the IFA without undue hardship. He has work experience in welding, construction and music. He previously lived and worked in Bogota and lived in an upper-middle-class neighbourhood. As an XXXX XXXXColombian he has not faced barriers to employment and housing. [51] With respect, I am not persuaded by the Minister's submission. [52] First of all, I note that the RPD#2 only raised the possibility of Bogota as an IFA in this case and questioning was restricted to this region. On appeal, the Minister submits that the Respondent could also safely relocate to Cali or Medellin but this issue was not canvassed by RPD#2 at the hearing with the Respondent. [53] Next, I have considered the Minister's submission that XXXX XXXX lacks the motivation to track down the Respondent in Colombia given the passage of time. After he fled to Bogota in XXXX XXXX XXXX 2015, members of XXXX XXXX kept watch on the grandmother's home in XXXX looking for the Respondent. I have already found that this group is motivated to kill the Respondent for revenge after the Respondent defied their order to join their organization. This is compatible with the profile of this group which is reported to routinely engage in violent acts towards anyone who defies their organization. [54] With respect to the capacity of XXXX XXXX to track down the Respondent in Colombia, I am mindful of the report prepared by the UNHCR which found evidence of serious and widespread human rights abuses by armed groups throughout Colombia. The UNHCR considers that an IFA is not available in areas where new armed groups, guerrilla groups or other non-state actors have a strong presence.22 [55] In the present case, the Minister emphasizes that XXXX XXXX is not a prominent group. I note that XXXX XXXX is described as a violent, local criminal organization based in XXXX which essentially operates as a branch of the XXXX XXXX.23 XXXX XXXX is described as a narco-paramilitary group which remains active at present and interferes at the national level.24 Considering the alliance between XXXX XXXX and XXXX XXXX XXXX I find that the RPD did not err in finding that the objective evidence supports the Respondent's fear that they have the capacity throughout Colombia to target him and to kill him. In addition, he is an easily recognizable person who can be identified on the street as a result of exposure that he has received from his music performances. [56] Given this finding it is not necessary to consider the second prong of the IFA test. State protection [57] My review of the record is compatible with the RPD#2: the Respondent cannot expect adequate state protection in Colombia. [58] While the Respondent fled Colombia without seeking assistance from the authorities, he states that he did not approach the authorities for assistance because he was well aware that operationally effective state protection was limited in XXXX and Bogota, particularly for XXXX XXXXColombians like himself. The Respondent testified that he knew gangs had infiltrated the police and any information he reported would be communicated back to the gang which threatened him. [59] The objective documentation is compatible with the Respondent's testimony. For example, when the Respondent fled Colombia in 2015, XXXX XXXX was reported to be a violent and ruthless gang and the small number of people who actually made police complaints noticed a lack of investigation and there were no convictions.25 [60] State protection is a forward-looking assessment. While the objective evidence reveals that there have been some efforts in the state response to protection of victims of non-state actors including NAGS and guerilla groups,26 according to one source consulted in 2017, Colombia is still challenged by armed non-state actors who engage in illegal activities including unlawful killings. Sources consulted in a 2017 report speak to continued collusion of state actors (including security forces) with paramilitary successor and new criminal groups. Narco-paramilitary groups have infiltrated official institutions and forced alliances with public servants including the Armed Forces, the police; the Attorney General and local governments.27 Despite their efforts, the authorities have failed to curb the power of various criminal groups. The Respondent rebutted the presumption of adequate state protection in Colombia. [61] In sum, on a balance of probabilities, I conclude that the Appellant faces a personalized and prospective risk to his life or a risk of cruel and unusual treatment or punishment in every part of Colombia. This is a specific, personal risk faced prospectively by the Appellant as opposed to an indiscriminate or random risk faced by the Appellant and others. VI. REMEDY [62] Pursuant to ss. 111(1)(a) of the IRPA, I dismiss the appeal and confirm the decision of the RPD that the Respondent is a person in need of protection. Patricia O'Connor Me Patricia O'Connor August 16, 2019 Date PO/lp 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), paras 78, 103 [Huruglica]. 2 Ibid., paras 58, 59 and 70. 3 Penner v Niagara (Regional Police Services Board) 2013 SCC 19, para 28. 4 Danyluk v Ainsworth Technologies, 2001 SCC 44, para 18. 5 The Respondent is referring to the RAD#1 decision, para 18. 6 Sonkoue v Canada (Minister of Citizenship and Immigration) 2018 FC 1173, para 17, the RAD referred the matter back to the RPD for re-determination. The Federal Court determined that from that standpoint, the RAD decision was not final so the doctrine of res judicata did not apply. 7 Guerrero v Canada (Citizenship and Immigration) 2011 FC 1210, para 26 [Guerrero]. 8 Ibid, paras 27-28. 9 RPD#2 decision, p. 4. 10 XXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXX 11 Ibid, p. 11. 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXX X 13 Tab 7.2 Paramilitary sucessor groups and criminal bands [...] COL105773.E IRB. 24 April 2017, p. 8. 14 Tab 7.24, supra note 12, p. 5. 15 Appellant's Memorandum of Appeal, para 7. 16 Perez v Canada (Citizenship and Immigration) 2010 FC 345, paras 36-37. 17 Guerrero, supra note 7. 18 Respondents Memorandum of Appeal, para 21. 19 Guerrero, supra note 7, para 34. 20 Momodu v. Canada (Citizenship and Immigration), 2015 FC 1365, para 6; Abdalghader v. Canada (Citizenship and Immigration), 2015 FC 581, para 22. 21 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No 1172, [1994] 1 F.C. 589 (F.C.A); Rasaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1256, [1992] 1 F.C. 706, 140 N.R. 138 (F.C.A). 22 Tab 1.7 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia, UNHCR, September 2015, Fn 21. 23 Tab 1.7, Ibid, Fn 21. 24 Tab 1.7, Ibid, Fn 21. 25 Tab 7.15, supra note 10. 26 Tab 1.7, supra note 22, p. 19. 27 Tab 7.2 supra note 13, p. 16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-08741 15