2023 RLLR 223

2023 RLLR 223 Citation: 2023 RLLR 223 Tribunal: Refugee Protection Division Date of Decision: December 5, 2023 Panel: Catherine Bruce Counsel for the Claimant(s): N/A Country: Colombia RPD Number: VC3-06908 Associated RPD Number(s): VC3-06909 ATIP Number: A-2024-01133 ATIP Pages: N/A DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX (XXXX), and his mother XXXX XXXX XXXX XXXX (XXXX) citizens of Colombia, seek refugee protection under s. 96 and s. 97 of the Immigration and Refugee Protection Act (the “IRPA”). SUMMARY OF ALLEGATIONS [2] XXXX was kidnapped by the guerilla group, the ELN. After five months in captivity he escaped. XXXX was repeatedly told in captivity that if he escaped, he and his family members would be considered “military” targets by the ELN. As a result, XXXX and XXXX both fear for their lives. [3] Following his escape, XXXX provided testimony to Colombian authorities about the identity and roles of junior and senior members of the ELN involved in his kidnapping. As a result of his testimony some of the more junior members of the ELN have been arrested; the commanders however remain at large. XXXX’s collaboration with the Colombian authorities leading to the arrest of some of those involved, and ongoing investigations in relation to the commanders, further exacerbates the danger that XXXX is in. DETERMINATION [4] I find that XXXX and his mother XXXX are persons in need of protection in Canada under s. 97 (1) (b) of the IRPA as their removal to Colombia would subject them personally to a risk to their lives. I therefore accept their claims under s. 97 (1) (b) of the IRPA. [5] However, I find that the claimants are not being targeted for a Convention related reason. As the claimants lack the necessary nexus to a Convention ground, I find that they are not Convention Refugees. Their claims under s. 96 of the IRPA are therefore denied. DETAILED ALLEGATIONS [6] XXXX is a young XXXX XXXX from Bogota, Colombia. He worked for a XXXX XXXX, XXXX XXXX. [7] On XXXX XXXX 2021, after completing a work assignment in Boyaca department, XXXX set off home, accompanied by three technicians and a health and safety inspector from XXXX XXXX. As they were travelling through Arauca Department, their car was intercepted by a van. Armed men jumped out of the van. They were from the ELN. They took XXXX and his colleagues hostage. [8] The men were informed by the ELN that they were being held hostage because XXXX XXXX had not paid the ELN’s required war taxes. [9] On XXXX XXXX 2021 the ELN made XXXX record a video asking XXXX XXXX to negotiate with the guerillas to secure his release. [10] On XXXX XXXX XXXX 2021, the ELN released the three technicians who had been travelling together with XXXX and XXXX. XXXX and XXXX, the health and safety inspector, were not released. [11] XXXX, XXXX’s mother had been in contact with XXXX by telephone at 7pm on XXXX XXXX, 2022, just prior to his abduction. The following day, when XXXX did not come home, XXXX became worried. Using GPS she was able to obtain information that the car that XXXX was driving in had stopped on the road the night before for several minutes, before taking off in an unknown direction. XXXX’s heart sank. She immediately suspected that her son had been abducted. [12] For eight days XXXX’s mother had no news of her son’s whereabouts. Then on XXXX XXXX, 2021 she received a copy of the video that the ELN had taken of XXXX in which he asked XXXX XXXX to negotiate with the ELN to secure his release, [13] XXXX XXXX responded immediately. They said that they were not responsible for the situation. They had no intention of participating in negotiations with the ELN. [14] XXXX decided to travel to XXXX to see if she could enlist the help of local organizations and the police to try to secure her son’s release. They were not able to assist. [15] On XXXX XXXX, 2021, while she was still in XXXX, XXXX began to receive text messages through What’s App from the ELN. The ELN had located her in XXXX. They told XXXX that if she wanted her son released, she needed to come and meet a designated representative of the ELN. XXXX contacted the police. The police told her not to go; the chances were very high that if she did, she too would be kidnapped. XXXX did not go to meet the ELN representative. [16] Shortly afterwards the ELN texted XXXX to demand a ransom of approximately XXXX XXXX pesos (approximately XXXX XXXX XXXX Canadian dollars) otherwise they would kill her son. XXXX’s mother did not have this kind of money. She texted back to explain this, and to beg for their compassion. [17] Over the ensuing days, the ELN continued to send What’s App messages to XXXX saying that her son’s life was in her hands, that they could only keep her son alive for a few more days, that if she did not have the money to pay the ransom herself she should get the money from XXXX XXXX, and if XXXX XXXX would not pay up and XXXX died, she should sue the company. The last text that XXXX received from the ELN was on XXXX XXXX XXXX 2021. The ELN wrote to say that they would lower the ransom being demanded to approximately XXXX XXXX pesos (approximately XXXX XXXX XXXX Canadian dollars). XXXX did not have that kind of money; she did not pay them. [18] XXXX was held in captivity for five months before he was finally able to escape. [19] During the initial period of their abduction XXXX and XXXX were moved from camp to camp and from dwelling to dwelling every 5 to 6 days so as to avoid being located by the authorities. However, in XXXX 2022, intense clashes between dissident factions of the FARC and the ELN broke out in the areas where XXXX and XXXX were being held captive. As a result, XXXX and XXXX were moved to the jungle. [20] To prevent them escaping, the ELN bound their captives’ hands and feet together with military knots. Sometimes they were chained to trees. They were given water from stagnant wells, and food in various stages of decomposition. There were snakes, scorpions, mosquitos and parasites in the jungle. XXXX was injured during his captivity, developed infections and became ill. [21] XXXX was desperate to escape. He spent many days figuring out how to untie the military knots that his hands and feet were bound with. He figured out a way. [22] On XXXX XXXX, 2022 at nighttime, XXXX made his escape, under cover of a heavy rainfall. He walked for ten hours before he came to a hamlet with a road running through it. He was able to flag down a motorcycle and was driven to the town of XXXX in XXXX. [23] While XXXX escaped, XXXX did not. [24] After arriving in XXXX, XXXX went straight to the XXXX Police department. On XXXX, 2022 the police transported him by helicopter to meet his mother. From there, XXXX and his mother travelled back to Bogota. [25] In Bogota, XXXX was hospitalized for medical and psychiatric examinations and treatment. He was diagnosed with Post Traumatic Stress Disorder and placed on short term disability. [26] After his escape from captivity XXXX provided critical eyewitness testimony to identify the key actors in the ELN who had been involved in his capture. On XXXX XXXX, 2023 he went to the XXXX, a specialized force composed of personnel from the national police and the armed forces trained in rescuing kidnapping victims and dismantling of criminal groups, to perform facial recognition on ELN members involved in his abduction. He also gave the XXXX detailed accounts of the locations of the dwelling places where he was initially held, the names, alias’, ranks and responsibilities of those involved in his abduction, including the names of top military commanders in the ELF. He was able to do this because he had interacted with ELN members and commanders them over the 5 months he was in captivity, and during this time he had closely observed what was going on around him. [27] XXXX had hoped that he would be safe in Bogota. However, shortly after he arrived in Bogota, he was informed by security guards in the apartment complex that he and his mother were staying in, that unknown men had been asking whether he and his mother lived in the complex. Fearing that the ELN had located them, XXXX and XXXX left the city the following day. [28] Over the following months, XXXX and XXXX moved 5 times to five different cities to avoid being found by the ELN. They were advised to keep moving by the authorities, as moving frequently would make it more difficult for the ELN to track them. They were advised not to follow routines; following routines would make it easier for the ELN to locate them. They never took public transport believing it was unsafe to do so. They also repeatedly changed their cell phone numbers. Despite doing so they continued to receive ongoing threatening calls. [29] XXXX sought protection for himself and for his mother from the National Protection Unit. When he was being held captive, he had been repeatedly told by his captors that if he were to escape, he and his family would become military targets; no one made a mockery of the ELN. The threat was even greater now that he was providing key testimony to the authorities as to the identity of prominent ELN members. He was told that the authorities could provide him with a bullet proof vest and a cell phone, but nothing more. He was told that no protection would be offered to his mother. [30] XXXX and XXXX felt unsafe. The final straw came on XXXX, 2023 when the ELN publicly announced its presence in Calli, Medellin and Bogota, by setting off explosions and hoisting ELN flags in all three cities. [31] Believing that there was no where in Colombia that they would be safe, XXXX and XXXX fled Colombia for Canada on April 23, 2023. They made their refugee claim upon arrival. [32] Since being in Canada, XXXX has continued to provide testimony to the XXXX by video link in. As a result of his testimony, several lower ranking members of the ELF involved in his abduction have been arrested. However, the commanders he identified as being involved in his abduction remain at large. [33] XXXX and XXXX believe that is they return to Colombia it is only a matter of time before they are killed or disappeared. ANALYSIS Identity [34] XXXX’s identity was established through his credible testimony. His testimony was corroborated by his personal identity documents, including a copy of his passport and a copy of his Colombian citizenship card. [35] XXXX’s identity was similarly established through her credible testimony. Her testimony was also corroborated by her identity documents, including a copy of her Colombian passport and a copy of her Columbian citizenship card. [36] Documents issued by a competent foreign government are presumed to be genuine unless there is reason to doubt that presumption. I have examined the claimants’ citizenship cards and passports and I find there is no reason to doubt their authenticity. I find that XXXX and XXXX have both established their personal and their national identity. Credibility [37] When a claimant swears to the truth of allegations this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.[1] [38] XXXX and XXXX both testified. I found them to be highly credible witnesses. In accordance with Guideline 8, recognizing that XXXX has been diagnosed with PTSD, and in consideration of appropriate procedural accommodations, I did not ask XXXX about his experiences when he was kidnapped. To do so would have been deeply traumatizing for him, and for his mother. Moreover, there was absolutely no need to do so, as their claim was extremely well documented. [39] The documents submitted by XXXX and XXXX included the following: 1. Documentation from the Comprehensive Victim Assistance and Reparation Unit, dated XXXX XXXX 2022, and signed by the Technical Director of Registration and Information Management, providing information about the context in which XXXX’s kidnapping occurred. According to the Comprehensive Victim Assistance and Reparation Unit, the Department of XXXX where XXXX was kidnapped, is a “strategic zone … serving as a mobility corridor … for the transfer of flights from the Venezuelan border, arms trafficking … … [Its] status as an international border … and the installation of important road and energy infrastructure make it an attractive target for ELN guerilla groups … They conduct terrorist attacks against oil, road, and military infrastructure, as well as extortion, cattle rustling, kidnappings, illegal detentions, roadblocks, … threats and homicide of people protected by International Humanitarian Law. … Historically they have made this corridor of the XXXX foothills a zone of high risk and violent dispute.” 2. Documentation from the Office of the Specialized Prosecutor for XXXX XXXX, dated XXXX XXXX 2023, on letterhead, with the logo of XXXX, signed by the Specialized Third Prosecutor, certifying that: · The Prosecutor’s office was actively investigating the ELN for Kidnapping and Extortion in relation to XXXX’s abduction; · XXXX had provided information to assist with the prosecution of the perpetrators of the crime, including photograph recognition of some of the perpetrators; · Orders for the capture of some of the perpetrators would be requested “soon”; · As a result, the Prosecutor was requesting “special attention” to assess appropriate protective measure for XXXX and his family. 3. A letter from the Eastern War Front of the ELN, bearing the stamp of the ELN, to XXXX XXXX, dated XXXX XXXX, 2021, confirming that: · the ELN had abducted XXXX XXXX employees because of the company’s involvement in oil projects in various departments in Colombia; · XXXX’s release and XXXX’s release depended on the company’s prompt negotiations with the ELN. 4. A transcription of the video that XXXX was forced to record on XXXX XXXX XXXX 2021 requesting that XXXX XXXX negotiate for his release with the ELN, together with a copy of the photograph that was taken of XXXX by the ELN at the time. 5. Documentation corroborating the various overtures XXXX’s mother made to government and non- governmental organizations to try to obtain their assistance in securing the release of her son, including: · A copy of a letter from the office of the Ombudsman bearing the Ombudsman’s seal and signed by the XXXX Regional Ombudsman, dated XXXX XXXX 2022, confirming that XXXX had enlisted the Ombudsman’s help in securing XXXX’s release but that the Ombudsman had no current information about XXXX’s whereabouts. · A copy of a letter from the Office of the High Commissioner for Peace, dated XXXX XXXX XXXX 2022 confirming that XXXX’s family had reached out to the Office with the objective of seeking humanitarian assistance to facilitate XXXX’s release from captivity · A copy of a letter from the International Committee of the Red Cross, on letterhead, dated XXXX XXXX, 2022 confirming that it opened a case to search for XXXX on XXXX XXXX, 3032. 6. Screen shots of the What’s App conversations between the ELN and XXXX commencing XXXX XXXX 2021, in which the ELN: state that they are aware that XXXX is in XXXX, ask her to go to XXXX to meet with their designated representative, first demand a ransom of XXXX million pesos and later reduce this to XXXX million pesos, tell XXXX to make arrangements to have XXXX XXXX help her come up with this money and tell XXXX that she can sue XXXX XXXX if they do not come up with the money and her son dies. 7. A copy of the contemporaneous handwritten notes taken by the Commander of XXXX Police station in relation to XXXX’s appearance at the police station on XXXX XXXX 2022. In these notes, XXXX reports both his kidnapping and his escape. 8. A verbatim copy of the statement XXXX gave to the Judicial Police on XXXX XXXX, 2022. In this statement XXXX identifies those involved in his abduction, provides their names and alias, including the names and alias of commander of the ELN who he interacted with, gives details of their specific roles according to his observations and provides details about the houses and locations where he was taken during his captivity. He also states that he can recognize all of the individuals he has identified because he interacted with them physically and verbally. 9. A copy of documentation from The Victim Assistance and Reparation Department, dated XXXX 2022, signed by the Technical Director of Registration and Information Management, which includes a verbatim statement made by XXXX in relation to his kidnapping and his treatment while detained. In this statement XXXX refers to the fact that he was repeatedly threatened while in captivity that if he escaped his whole family would become military targets of the ELN. 10. Copies of numerous detailed medical reports from Colombia. These reports include the names and qualification of reporting doctors and provide details of the tests conducted on XXXX and the medication and treatment prescribed. These reports corroborate that XXXX was diagnosed with post- traumatic stress disorder and was placed on short term disability as a result. These reports also confirm that had to have surgery and medical treatment to address injuries sustained while he was in captivity. [40] All of these documents were written in Spanish, and were translated to English, with appropriate affidavits of translation. I have looked carefully at each document. I have no doubt that all of the documents are genuine. All the documents are of high probative value. I therefore afford them full weight. [41] Although I did not question XXXX with respect to his abduction and his time in captivity, I did question XXXX about his attempts to seek state protection after he had escaped, about the evidence XXXX had given to the authorities in relation to his capture, about the trigger that led to the decision to flee Colombia, as well as about his ongoing assistance to the XXXX since his arrival in Canada. There were no inconsistencies or contradictions in his statements. I found his testimony highly credible. [42] Regarding the fact that XXXX and XXXX did not leave Colombia until 13 months after XXXX managed to escape captivity, I have taken into consideration the fact that XXXX required significant psychiatric and medical treatment upon his escape from captivity as a result of the trauma that he had suffered. As a result, I find on a balance of probabilities that, upon his release, he was likely in no condition to make decisions about the need to flee and leave behind his homeland forever. However, when the ELN brazenly announced its presence by hoisting flags and setting off explosions in Colombia’s capital as well as in two other cities in XXXX 2023, XXXX and XXXX accepted that given the power of the ELN they would never be safe in Colombia. XXXX and XXXX fled Colombia within two weeks of these events. In these circumstances I do not find that their delay in leaving Colombia undermines their credibility. [43] In short, on the basis of their credible testimony, which is corroborated by the personal documents they have submitted, I have no doubt that the allegations that XXXX and XXXX have made are true. On a balance of probabilities, and in accordance with the presumption of truth given to sworn testimony, I therefore accept all of their allegations. No nexus to a Convention ground [44] The ELN purports to be a Marxist-Leninist guerilla group; however it is currently more focused on illicit activities including drug trafficking, extortion, kidnapping and controlling cocaine production.[2] Bearing the current focus of the ELN in mind, I find, on a balance of probabilities, that the ELN’s motive in kidnapping XXXX was financial and not political. In this regard, I note that there was no evidence that the ELN indicated to XXXX that there was a political motive behind his abduction. Rather, they indicated that they were holding him hostage because the oil company that he worked for had not paid the required war tax. I also note that the ELN asked XXXX for a ransom of almost XXXX million pesos and told her that if should seek the assistance of XXXX XXXX to pay this money; I find on a balance of probabilities they targeted an employee of an oil company because they believed that the company had deep pockets and could, and would, meet the ELN’s financial demands. [45] I find as a result that there is no nexus to a Convention ground in relation to XXXX’s claim. I find that XXXX is being targeted because she is part of XXXX’s family. However, since XXXX, the anchor relative, is not being targeted for a Convention reason, XXXX’s claim also has no nexus to a Convention ground. As a result, I find the claimants are not Convention refugees. Their claim under s. 96 of the IRPA is therefore denied. [46] However, for the reasons that follow I find that XXXX and his mother XXXX are persons in need of protection in Canada under s. 97 (1) (b) of the IRPA as their removal to Colombia would subject them personally to a risk to their lives. s. 97 claim: On a balance of probabilities, the claimants would face a risk to life or a risk of cruel and unusual treatment and punishment. [47] To be a person in need of protection under s. 97 (b) of the IRPA claimants must demonstrate on a balance of probabilities that they face personally a risk to life or a risk of cruel and unusual treatment and punishment, that is not generally faced by other individuals in their home country.[3] This necessitates an individualized inquiry, which is to be conducted on the basis of evidence adduced by the claimants “in the context of present or prospective risk.” A two- stage approach is required. The first stage involves an analysis of the risk faced by the claimants. The second stage involves determining whether the risk is generally faced by others. This involves comparing the degree of risk faced by the claimants with the nature and degree of risk faced by other individuals.[4] Analysis of prospective risk faced by XXXX and XXXX [48] XXXX was repeatedly told by the ELN that if he escaped, he and his family members would become military targets of the ELN. XXXX did escape. By doing so I find, on a balance of probabilities, that he and XXXX have become military targets of the ELN. [49] Designation as a military target by an armed group is the “highest informal threat that someone can receive”; the threat is “very serious.”[5] According to the documentary evidence “most” such designations “end with people being murdered”.[6] The documentary evidence also corroborates that the threat of being murdered in relation to being designated as a military target applies not only to the person of principle interest, but also to their family members[7]. [50] I find that as a result of being designated military targets, XXXX and XXXX face a prospective risk to their lives. I also find, on a balance of probabilities, that the prospective risk to XXXX is especially grave because XXXX possesses highly sensitive information about the identity of key actors in the ELN. Moreover, XXXX has shared, and is sharing, this information with authorities in Colombia. The documentary evidence indicates that witnesses who provide such evidence are prime targets of illegal groups such as the ELN. [51] In finding that the claimant’s face a prospective risk to their lives if they were to return to Bogota, Colombia, I have taken into consideration the fact that, in June 2023, talks between the Colombian government and the ELN resulted in a six- month ceasefire between the government and the ELN, effective as of August 2, 2023.[8] However, for the reasons explained below I find on a balance of probabilities that this ceasefire does not negate the prospective risk the claimants face. [52] First, the ELN has been fighting the Colombian state. The ceasefire relates to an agreement that the ELN will not engage in military activities against the government. There is no evidence that the ceasefire includes an agreement that the ELN will cease and desist from its other illegal activities, including targeted assassinations of those who pose threats to it. Indeed, earlier peace negotiations with the ELN broke down in 2019 because, even while involved with peace negotiations, the ELN continued with its illicit activities including bombings and kidnappings. [53] Second a ceasefire is a temporary and not a permanent arrangement. As such, there is no evidence of durable change at this time. A change must “substantial, effective and durable” in order for the panel to find that a change of circumstances has occurred.[9] As the ceasefire does not meet these criteria, I find that the ceasefire does not negate the prospective risk faced by the claimants. The claimants face personalized and not generalized risk [54] There are currently seven non-international armed conflicts in Colombia; a conflict between the Government and the ELN; a conflict between the government and the Autodefensas Gaitanistas de Colombia (Gaitanist Self-Defence Forces of Colombia – AGC); a conflict between the Government and post-FARC-EP irregular armed groups; a conflict between the ELN and the AGC; a conflict between post-FARC-EP irregular armed groups and Segunda Marquetalia; a conflict between post-FARC-EP irregular armed groups and Comandos de la Frontera; and a conflict between post-FARC-EP irregular armed groups.[10] [55] In the context of this security situation, violence in Columbia is widespread, and is having a “devastating” impact upon the civilian population[11] who face threats, homicides, massacres, targeted assassinations, kidnapping, hostage taking, and disappearance. [56] These acts occur with alarming frequency. By way of example, in 2021 there were 13,362 homicides involving citizens in Colombia; similar numbers were murdered in 2022. Meanwhile, a new disappearance case was reported every second day in Colombia in 2021 [12] [57] Despite the general risk of violence from illegal armed groups that the civilian population in Colombia faces, the risk faces by XXXX and XXXX is different to the risk faced by others in Colombia. While the general population faces a possible future risk of being caught in the crossfire of illegal armed activity, XXXX and XXXX have been declared military targets by the ELN. Moreover, XXXX faces an especially grave risk because he possesses highly sensitive information about the ELN’s activities and is providing this to the Colombian authorities. [58] In view of the above, I find, on a balance of probabilities, that the claimants face a personalized, crystalized risk that is not generally faced by other individuals in Colombia. State Protection [59] States are presumed capable of protecting their citizens[13]. This presumption of state protection can only be rebutted with clear and convincing evidence.[14] [60] XXXX and XXXX have taken multiple steps to seek state protection. However, as noted below adequate protection has not been forthcoming. [61] When XXXX was kidnapped, XXXX sought the assistance of the police, and multiple other governmental organizations to try and secure XXXX’s release and the capture of those who had kidnapped him. These attempts yield no results; during the 5 months that he was held in captivity neither the police, nor any of the other organizations from whom XXXX sought assistance, were able to locate XXXX. In the end it was XXXX had to rely entirely on his own wits to escape from captivity. [62] After escaping XXXX collaborated with the XXXX. He provided key witness testimony pinpointing the locations of where he had been held, by whom, and detailing the names, alias and roles of ELN personnel from minor actors through to ELN commanders. Aware that providing such witness testimony was extremely dangerous, XXXX went to the National Protection Unit to request special protection measures. However, the only protection measure he was offered was the supply of a bullet proof vest and a cell phone to allow him to communicate directly with the authorities if he felt he was under threat. He was not offered security detail. He was not put under surveillance. He was not relocated. He was not offered the possibility of an identity change. Moreover, no protection whatsoever was offered to XXXX even though she too was a military target of the ELN. XXXX did not appeal the very limited protection that was being offered to him, and the absence of protection offered to XXXX. He testified that he didn’t trust the National Protection Unit; he was afraid of corruption within the unit and of potential collusion between its members and members of illegal armed groups, including the ELN. [63] XXXX’s evidence of inadequate state protection is corroborated by the documentary evidence. Multiple sources, including the United Nations High Commission for Refugees, report that the protection that is provided to witnesses of crimes is inadequate. [15]According to the documentary evidence, the National Protection Unit is “overwhelmed” “overburdened” and deeply corrupt.[16] Due to the limited protections it offers and delay in providing even limited protections, sources report that declared military targets will “disappear, be killed … because the danger is too high”[17] [64] Consistent with XXXX’s testimony, the documentary evidence also corroborates that corruption of security forces, including both the military and the police, remains an entrenched problem; there is evidence that military and police personnel are susceptible to being bribed by armed groups to provide them with intelligence and “tip offs.”[18] [65] Furthermore, impunity for abuses committed by illegal armed actors and other criminals is described as “high”[19] “endemic”[20] “entrenched”[21] and “the norm”[22]. For example, in XXXX, the Colombian Attorney Generals Office has secured convictions for only eight killings committed since 2017, out of a total of more than 400 under investigation. None of the eight people convicted was a member of an armed group.[23] [66] The panel acknowledges that according to XXXX’s evidence, the XXXX has made some arrests of those responsible for his abduction. However, only the more minor actors have been arrested and none to date, have been convicted. Moreover, although it has been 21 months since XXXX escaped captivity, and over two years since he was first abducted, none of the more senior members of the ELF who he has identified have yet been arrested, despite the detailed identity evidence that XXXX has provided. As XXXX explained, it is the more senior personnel who pose the greatest risk to XXXX and to XXXX, and it is they who remain at large. [67] Considering this evidence in its totality, I find that the claimants have rebutted the presumption of state protection with clear and convicing evidence. I find, on a balance of probabilities, that at an operational level, adequate state protection is not available to XXXX and XXXX in relation to the risks that they face. Internal Flight Alternative (“IFA”) [68] Claimants are expected to seek protection in another part of their own country, if it is available, before they seek refuge in Canada.[24] The notion of an IFA is inherent in the definition of a Convention refugee because refugee protection is a form of surrogate protection.[25] Accordingly, claimants bear the onus to demonstrate that there is a serious possibility of persecution throughout the country, including in the area identified as an IFA. [69] The analysis for assessing an IFA has two parts according to the Federal Court in Rasaratnam.[26] The panel must first determine whether there is a serious possibility that the claimants will be persecuted, or whether the claimants face, on a balance of probabilities, a risk to their life, torture, or cruel and unusual treatment or punishment in the proposed IFA. Secondly, the panel must also be satisfied, after considering the claimants’ individual circumstances and the conditions in the proposed IFA, that it would not be unreasonable to seek refuge in the IFA. An IFA will only be viable if both criteria are met. [27] [70] With respect to the first prong of the test, an IFA analysis requires a contextual approach, looking at the profile of the agents of persecution, their motivation to look for the claimants, and their ability to find the claimants. The first prong of the test is met only where the agents of harm have both the “means and the motivation” to locate the claimants.[28] The Profile of the Agent of Persecution. [71] The agent of persecution is the ELN. According to Insight Crime the ELN is currently “the most powerful criminal group in Colombia” having rapidly expanded after the FARC-EP disbanded.[29] The ELN has a “Central Command” and operates eight active war fronts across Colombia, and has between 2,4000 to 4,000 active combatants among its network.[30] It has expanded is presence and location in municipalities over the past several years following the FARC peace accord.[31] In 2020 the ELN was present in 207 municipalities across 23 out of 32 departments in Colombia.[32] The ELN also has an undetermined number of militias and support networks.[33] The motivation of the Agent of Persecution [72] The documentary evidence indicates that irregular armed actors are highly motivated to find those who have been identified as military targets, and highly motivated to silence persons who could provide information to the authorities that would “make the group’s operation less effective.” At particularly high risk are those providing information to the state about the activities of irregular armed actors. [34] [73] Prior to his escape, XXXX was repeatedly told by the ELN that if escaped he and his family members would be declared military targets. The documentary evidence confirms that it is not only the principle military target who risks assassination; family members of the principle military target are at risk of assassination too. [74] As noted earlier, over the course of the five months that XXXX was held in captivity, XXXX came into contact with many ELN members from junior members to senior commanders. As a result, XXXX possess highly sensitive information pertaining to the ELN, its members, and its operations. He has shared this information with XXXX and an investigation is ongoing. The information that XXXX has provide has already resulted in the arrest of some of its members of the ELN. In the light of these facts and in view of the documentary evidence confirming that the ELN targets witnesses to crimes, the panel finds, on a balance of probabilities that the ELN is highly motivated to track XXXX. This finding is consistent with the claimants’ testimony that the ELN continued to threaten them by phone until they left Colombia. Means to locate the claimants [75] The documentary evidence indicates through the use of social media, contacts in intelligence services and the army, and criminal networks, illegal armed groups in Colombia have the capacity to locate and murder individuals wherever they are in Colombia, provided they are motivated to do so. The larger the illegal armed group, and the greater its national presence, the easier it is for the group to locate a target. [35] [76] The ELF is “the most powerful armed group” currently in Colombia, with a significant presence in the majority of states. As the most powerful illegal armed group currently in Colombia, I find on a balance of probabilities, that the ELN has the means to track XXXX and XXXX if they return to Colombia. [77] In so concluding I have taken into consideration the fact that in the year from XXXX’s escape to XXXX and XXXX’s departure to Colombia there were threats, but no assassination attempts on their lives. I note that an assassination attempt is not required for the claimants to be granted protection; threats in and of themselves are sufficient to establish a risk to their lives. Furthermore, I note that after XXXX’s escape, he and his mother took significant measures to elude the ELN, including moving no less than five times to five different cities, changing their cell phones and number regularly, not taking public transport and not following routines in their day. I find that XXXX and XXXX cannot be expected to take such measures indefinitely to secure their safety. I also find on a balance of probabilities that the ELN is sufficiently powerful to ultimately overcome these impediments to locating XXXX and XXXX. I find that more likely than not, sooner or later, if they return to Colombia, the ELN will locate XXXX and XXXX wherever they are, as the ELN has the motivation and means to do so. XXXX and XXXX do not have an IFA [78] Taking into account the profile, motivation, and means of the agent of persecution, I find on a balance of probabilities that XXXX and XXXX face a risk to their lives throughout Colombia. I find, on a balance of probabilities, that they do not have an internal flight alternative. CONCLUSION [79] I find that XXXX and his mother XXXX are persons in need of protection in Canada under s. 97 (1) (b) of the IRPA as their removal to Colombia would subject them personally to a risk to their lives. Accordingly, their claims are accepted. [80] XXXX and XXXX: welcome to Canada. ——— REASONS CONCLUDED ——— [1] Maldonado v. Canada (Minister of Employment and Immigration), [1979] F.C.J. No. 248 (FCA)(QL), [1980] 2 FC 302 (CA), at para 5. [2] National Documentation Package, Colombia, 31 August 2023, tab 1.24: EASO Country of Origin Information Report. Colombia: Country Focus. . European Union. European Union Agency for Asylum. December 2022 at 5.3.2. [3] Prophete v. Canada (MCI) 2009 FCA 31 [4] Jurisprudential Guide: X (Re), 2021, CanLII 952825 (CA IRB) [5] National Documentation Package, Colombia, 31 August 2023, tab 7.21: Individuals declared a military objective (objetivo militar) (also translated as military target), including issuing authorities; ability to track individuals who are declared military objectives; state response (2021-August 2023) . Immigration and Refugee Board of Canada. 11 August 2023. COL200922.E. [6] National Documentation Package, Colombia, 31 August 2023, tab 7.21: Individuals declared a military objective (objetivo militar) (also translated as military target), including issuing authorities; ability to track individuals who are declared military objectives; state response (2021-August 2023) . Immigration and Refugee Board of Canada. 11 August 2023. COL200922.E. [7]National Documentation Package, Colombia, 31 August 2023, tab 7.21: Individuals declared a military objective (objetivo militar) (also translated as military target), including issuing authorities; ability to track individuals who are declared military objectives; state response (2021-August 2023) . Immigration and Refugee Board of Canada. 11 August 2023. COL200922.E. [8] National Documentation Package, Colombia, 31 August 2023, tab 1.24: EASO Country of Origin Information Report. Colombia: Country Focus. . European Union. European Union Agency for Asylum. December 2022 at 2. [9] Karasu v. Canada (Citizenship and Immigration) 2023 FC 654 Can Lii [10] National Documentation Package, Colombia, 31 August 2023, 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 at 3 [11] National Documentation Package, Colombia, 31 August 2023, 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 [12] National Documentation Package, Colombia, 31 August 2023, 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 at page 84-100 [13] Canada v. Ward [1993] 2 S.C.R. 689 [14] M.C.I. v. Flores Carillo FCA No A-225-97 [15] National Documentation Package, Colombia, 31 August 2023, 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 at page 63 [16] National Documentation Package, Colombia, 31 August 2023, tab 7.21: Individuals declared a military objective (objetivo militar) (also translated as military target), including issuing authorities; ability to track individuals who are declared military objectives; state response (2021-August 2023) . Immigration and Refugee Board of Canada. 11 August 2023. COL200922.E. [17] National Documentation Package, Colombia, 31 August 2023, tab 7.21: Individuals declared a military objective (objetivo militar) (also translated as military target), including issuing authorities; ability to track individuals who are declared military objectives; state response (2021-August 2023) . Immigration and Refugee Board of Canada. 11 August 2023. COL200922.E. [18] National Documentation package, Colombia, 31 August 2023, “Calming the Restless Pacific: Violence and Crime on Colombia’s Coast” International Crisis Group, 8 August 2019. [19] National Documentation Package, Colombia, 31 August 2023, tab 1.8: Colombia: Fact-Finding Mission Report: Conflict Dynamics in the Post-FARC-EP Period and State Protection. Immigration and Refugee Board of Canada. March 2020. [20] National Documentation Package, Colombia, 31 August 2023, tab 1.22: Colombia. Civic Freedom Monitor. International Center for Not-for-Profit Law. 5 January 2023. [21] National Documentation Package, Colombia, 31 August 2023, tab 1.23: Protecting Colombia’s Most Vulnerable on the Road to “Total Peace.” Latin America Report N° 98. International Crisis Group. 24 February 2023. [22] National Documentation Package, Colombia, 31 August 2023, tab 10.3: “The Guerrillas Are the Police”: Social Control and Abuses by Armed Groups in Colombia’s Arauca Province and Venezuela’s Apure State. Human Rights Watch. 22 January 2020. [23] National Documentation Package, Colombia, 31 August 2023, tab 10.3: “The Guerrillas Are the Police”: Social Control and Abuses by Armed Groups in Colombia’s Arauca Province and Venezuela’s Apure State. Human Rights Watch. 22 January 2020. [24] Canada (Attorney General) v. Ward, [1993] 2 SCR 689 at 752 [25] Thirunavukkarasu v. Canada ( Minister of Employment and Immigration ), [1994] 1 FC 589 [26] Rasaratnam v. Canada (Minister of Employment and Immigration), 1992 1 FC 706 [27]Calderon v. Canada (Citizenship and Immigration), 2010 FC 263 at para. 10 [28] Nimako v. Canada (Citizenship and Immigration), 2013 FC 540 at para. 7; Mayorga Gonzalez v. Canada (Citizenship and Immigration), 2012 FC 987 at para. 3 [29] National Documentation Package, Colombia, 31 August 2023, tab 1.24: EASO Country of Origin Information Report. Colombia: Country Focus. . European Union. European Union Agency for Asylum. December 2022. [30] National Documentation Package, Colombia, 31 August 2023, tab 1.24: EASO Country of Origin Information Report. Colombia: Country Focus. . European Union. European Union Agency for Asylum. December 2022. [31] National Documentation Package, Colombia, 31 August 2023, tab 1.24: EASO Country of Origin Information Report. Colombia: Country Focus. . European Union. European Union Agency for Asylum. December 2022. [32] National Documentation Package, Colombia, 31 August 2023, 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 at 3 [33] National Documentation Package, Colombia, 31 August 2023, 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 at 3 [34] National Documentation Package, Colombia, 31 August 2023, tab 1.24: EASO Country of Origin Information Report. Colombia: Country Focus. . European Union. European Union Agency for Asylum. December 2022. [35] National Documentation Package, Colombia, 31 August 2023, tab 7.21: Individuals declared a military objective (objetivo militar) (also translated as military target), including issuing authorities; ability to track individuals who are declared military objectives; state response (2021-August 2023) . Immigration and Refugee Board of Canada. 11 August 2023. COL200922.E.