MB8-03926

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: MB8-03926 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montreal, Quebec Appel instruit à Date of decision July 31, 2019 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the person who is the subject of the appeal Me Jane G. Rukaria Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX is a citizen of Colombia. He appeals a decision of the Refugee Protection Division (RPD) rendered on December 12, 2017 rejecting his claim for refugee protection. [2] The Appellant claims to fear a risk to his life from the paramilitary group Urabeños1 if he returns to Colombia, stemming from his former job as a XXXX XXXX. [3] The RPD found that the Appellant was credible but did not establish a well-founded fear of persecution related to a Convention ground pursuant to s. 96 of IRPA. In assessing whether the Appellant is a person in need of protection within the ambit of s. 97 of IRPA, the RPD rejected the claim, finding that the Appellant did not establish the identity and affiliation of his agents of harm as being anything more than privately motivated individuals. Moreover, the RPD determined that the Appellant did not establish a personalized, forward-looking risk to his life or of cruel and unusual treatment or punishment. [4] On appeal to the Refugee Appeal Division (RAD), the Appellant submits that the RPD erred by failing to assess his claim as an Afro-Colombian with a nexus to a Convention ground under s. 96 of IRPA. Moreover it is submitted that new evidence submitted on appeal establishes that the agents of harm are members of the Urabeños who personally subject him to a risk to his life or a risk of cruel and unusual treatment or punishment. [5] After considering the evidence, I allow the appeal, finding that the Appellant is a person in need of protection pursuant to s. 97(1)(b) of the IRPA. II. BACKGROUND [6] The Appellant is an Afro-Colombian from Buenaventura who was born in 1986. [7] In XXXX 2007, the Appellant relocated to his aunt's home in Cali after being threatened to join the FARC. He returned to live in Buenaventura after the person who threatened him was killed. [8] In XXXX 2010, the Appellant began working as a XXXX XXXX XXXX. In 2015, he and his colleagues became unionized. He quit his job in XXXX 2015 given threats to union members. [9] In XXXX 2015, the Appellant began working as a XXXX XXXX XXXX. In XXXX 2016, he witnessed a fellow worker be fatally shot at the XXXX XXXX where he worked. The neighbourhood became increasingly more dangerous with rival armed groups intimidating and threatening people. After witnessing the murder of his colleague, the Appellant relocated to a different neighborhood. [10] In XXXX 2016, three armed men approached the Appellant and threatened him. One of the men blamed the Appellant for issuing him an XXXX XXXX when the Appellant was working as a XXXX XXXX. [11] In XXXX 2016, the Appellant returned home to live with his mother and sister. [12] In XXXX 2016, the Appellant was standing on a street corner in a different neighbourhood when he was approached by two men on a motorcycle. One of the assailants pointed a gun at the Appellant's head and threatened him with death, alleging that he lost his motorcycle because of the Appellant. At that point, the other assailant intervened, stating not to shoot as "the Appellant is XXXX son". After pushing down and kicking the Appellant, the two men left. [13] Following this incident, the Appellant was informed by his friend that the two assailants are named "XXXX" and "XXXX XXXX", and they are members of the Urabeños. [14] On XXXX XXXX, 2016, the Appellant's sister contacted the Appellant to inform him that armed men had come to the house looking for him. Fearful for his life, the Appellant made his way to his brother's home in Palmira. On XXXX XXXX, 2016, he made a police report and then travelled to the USA. He arrived in Canada on September 14, 2016 where he claimed refugee protection. [15] The Appellant testified that in XXXX 2017, two men inquired about his whereabouts at the XXXX operated by his mother in Colombia. [16] The Appellant fears being harmed or killed by the Urabeños if he returns to Colombia. The RPD decision [17] The RPD concluded that the Appellant was credible with respect to his fear of those who have threatened and assaulted him, including "XXXX" and "XXXX XXXX" whom he believes are members of the Urabeños. [18] Next, the RPD found that that the Appellant did not establish a nexus to a Convention ground. While noting that the Appellant is an Afro-Colombian, the events leading the Appellant to flee Colombia are not based on his race or ethnicity. Rather, he fled Colombia because he was threatened and assaulted by his assailants who blamed him for the confiscation of a motorcycle during the period that he worked as a XXXX XXXX. [19] The RPD then assessed whether the Appellant is a person in need of protection within the ambit of s. 97 of IRPA. The RPD found that the Appellant did not establish on a balance of probabilities that he will personally face a risk to his life or of cruel and unusual treatment or punishment if he returns to Colombia. [20] In reaching this finding, the RPD acknowledged that the objective evidence establishes that criminal organizations (referred to as New Armed Groups (NAGs)) are a significant problem in Colombia and that the Urabeños is a criminal organization which is especially powerful in Buenaventura. However, in the present case, there is insufficient reliable evidence to establish that the two persons who threatened and assaulted the Appellant in XXXX 2016, or the persons who came looking for the Appellant in XXXX 2016 and XXXX 2017 belong to the Urabeños, or any other significant criminal group. The claimant has no first-hand knowledge of the identities or possible criminal affiliation of those he fears.2 [21] The RPD also found that the Appellant did not establish a personalized, forward-looking risk in Colombia and did not provide reliable evidence of any continued interest in the Appellant by the purported agents of harm. Although Buenaventura is dangerous, the RPD found that the Appellant did not establish that he personally faces more than a generalized risk of crime compatible with that faced by others. III. DETERMINATIVE ISSUE [22] The Appellant has raised several issues on appeal. I find the determinative issues are as follows: - Did the Appellant establish that his agents of harm are members of Urabeños? - Did the Appellant prove that the agents of harm have a continued interest in him and that he faces a personalized forward-looking risk of harm in Colombia? IV. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [23] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that the Appellant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. If the new evidence meets the test for admissibility in ss. 110(4), then the RAD is required to further analyze the content of the document which requires an assessment of the credibility, relevance and newness of the evidence.3 [24] The Appellant requests to submit the following documents as new evidence on appeal: - Item 1: Affidavit from XXXX XXXX XXXX XXXX, January 22, 2018;4 - Item 2: Affidavit from XXXX XXXX, January 22, 2018.5 [25] For the reasons that follow, I find that Item 1 and Item 2 are admissible on appeal. Item 1: Affidavit of the Appellant's sister XXXX XXXX XXXX XXXX, January 22, 2018 [26] During the RPD hearing, the Appellant testified that it was his friend XXXX XXXX who informed him that his agents of harm are "XXXX" and "XXXX XXXX" and that both men are members of the Urabeños. Despite his best effort, he was unable to locate XXXX XXXX prior to the RPD hearing. [27] Item 1 is a sworn affidavit from the Appellant's sister in Colombia which post-dates the RPD rejection of the claim (December 12, 2017). Item 1 specifies the multiple efforts made by the Appellant's sister to contact XXXX XXXX prior to the RPD hearing and explains how she eventually managed to contact XXXX XXXX at the home of his mother in XXXX 2018 when he returned to Colombia from Chile. The Appellant's sister also specifies that the two armed men who presented at their home looking to find the Appellant in XXXX 2016, made reference to motorcycles. [28] The sworn affidavit clearly establishes that the Appellant's sister was only able to make contact with XXXX XXXX in XXXX 2018 following his return to Colombia from Chile. As such, I find that Item 1 was not reasonably available prior to the rejection of the claim. [29] I note further that the affidavit is relevant to the present case since it provides important context explaining why important evidence from XXXX XXXX (which speaks to the identity and affiliation of the agents of harm) was only available following the rejection of the claim by the RPD. As such, Item 1 is admissible on appeal. Item 2: Affidavit from the Appellant's friend XXXX XXXX [30] The affiant has provided a sworn statement that he has known the Appellant since childhood. He personally knows "XXXX XXXX" and "XXXX" and attests to the fact that they are both violent and ruthless. The affiant XXXX XXXX XXXX XXXX XXXX XXXX XXXX and they personally informed him that they are members of Urabeños. Moreover, he confirms that criminal groups operating in Buenaventura have their own informants and networks to find people. [31] After closing his XXXX XXXX, the affiant moved to Chile. While he was away, his family did not advise him that the Appellant's sister was trying to make contact with him. He only returned to Colombia in XXXX 2017. [32] I am satisfied that the information contained in the sworn statement was not reasonably available at the time of the rejection of the claim given that the affiant was living in Chile and he was unreachable until he returned to Colombia and met the Appellant's sister in XXXX 2018. The information contained in the affidavit is credible, relevant and new, clarifying the identity and affiliation of the agents of harm. As such, I admit Item 2 as new evidence on appeal. V. ORAL HEARING BEFORE THE RAD [33] Section 110(3) states that the RAD proceeds without a hearing, on the basis of the RPD record, and may accept documentary evidence and submissions from both the Minister and the person subject of the appeal. [34] Section 110(6) stipulates that the RAD may hold an oral hearing if, in its opinion, there is documentary evidence referred to in subsection (3) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; that is central to the decision with respect to the refugee protection claim; and, if accepted, would justify allowing or rejecting the refugee protection claim. The RAD hearing is limited to the examination of the new evidence. [35] While I have admitted Items 1 and 2 as evidence on appeal because it establishes the identity and affiliation of the agents of persecution, the affidavits do not raise a serious issue with respect to the Appellant's credibility. It bears noting that the credibility of the Appellant was accepted by the RPD and the Appellant's credibility is not an issue in the present appeal. As such, the RAD must proceed without an oral hearing. VI. SCOPE OF THE RAD APPEAL [36] The RAD reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.6 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.7 I have applied the correctness standard in the present case. VII. ANALYSIS The Appellant has proven the identity and affiliation of the agents of harm [37] The RPD found that the Appellant proffered credible evidence that he was assaulted and threatened in Colombia by "XXXX" and "XXXX XXXX" and that he credibly established that he feared his agents of harm. This being said, the RPD found that the Appellant did not provide sufficient evidence to establish the identity and affiliation of the agents of harm as members of the Urabeños. [38] As noted above, I have authorized new evidence on appeal confirming the identity and affiliation of the agents of harm as "XXXX" and "XXXX XXXX" who are both members of the Urabeños. I retain from the evidence that the Appellant has credibly established that he was assaulted and threatened by members of the Urabeños stemming from his former work as a XXXX XXXX in Colombia. The Appellant has established that the agents of harm have a continued interest in him and that he faces a personalized forward-looking risk or harm in Colombia [39] The RPD found that there is insufficient evidence that the agents of harm have a continued interest in the Appellant. More specifically, the RPD determined that there is no clear sign of anyone trying to find the whereabouts of the Appellant since he left the country over a year ago; while the Appellant fears that his agents of harm have connections to the police, there was no apparent reaction from them after he filed a police report; and there is no evidence that his remaining family members have faced any pressure to disclose his whereabouts since he left Colombia.8 [40] Here, I agree with Counsel that this finding is unsustainable. [41] First of all, the Appellant is a XXXX XXXX XXXX XXXX from the city of Buenaventura. After doing this work for XXXX years, he quit his job in XXXX 2015 following threats made to him and other XXXX XXXX. Once he quit his job, he became self-employed as a XXXX XXXX XXXX. [42] When asked by the RPD why the agents of harm in Colombia would still want to harm him, the Appellant testified that the risk he faced is clearly connected to his previous work as a XXXX XXXX where his duties included XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [43] The Appellant explained that when he worked as a XXXX XXXX, a motorcycle belonging to a member of the Urabeños was XXXX. More specifically, when he was assaulted and threatened at gunpoint by members of Urabeños in XXXX 2016, one of his assailants mentioned that the Appellant caused him to XXXX XXXX XXXX XXXX and his XXXX XXXX XXXX. The Appellant explained that the two men were clearly affronted by this turn of events given that they lost the vehicle that they used to make money.9 [44] However, the RPD did not consider the connection between the Appellant's role as a former XXXX XXXX and the current risk that he faces in Colombia. This is an important consideration since objective evidence establishes that XXXX XXXX are persons at risk in Colombia.10 [45] Next, the RPD found that the agents of harm had not contacted the Appellant's family in over a year to make inquiries about his whereabouts which demonstrates that he does not face a personalized forward-looking risk in Colombia. [46] With respect, I disagree with this finding. [47] It is relevant to note that information gleaned from the objective evidence establishes that victims of New Armed Groups (NAGs) in Colombia have the capacity to track people down in Colombia. [48] In the present case, the agents of harm tracked down the Appellant and assaulted him in XXXX 2016, meaning several months after he quit his job as a XXXX XXXX in XXXX 2015. Despite the passage of time, they tracked him down in a different area of Colombia, pointed a gun at his head and threatened him, given that he made them incur a XXXX and their motorbike XXXX XXXX. This shows that there is continued interest in finding him. [49] It is true that at the time of the RPD hearing, members of Urabeños had not directly approached the Appellant's relatives in several months. However, I do not find this to be a major factor in assessing his personalized prospective risk in Colombia considering that the objective evidence found in the NDP for Colombia indicates that the Urabeños do not need to rely on family relatives to track down or locate their victims because they have developed their own networks that inform them in Colombia.11 [50] The RPD also noted that even though the Appellant feared collusion and corruption between the Urabeños and police after he made his police complaint in Colombia, nothing untoward happened to him. However, this finding is unsustainable because it fails to consider that the Appellant made the police complaint in Palmira on XXXX XXXX, 2016-meaning the same day that he fled Colombia. [51] All things considered, I find that the Appellant has demonstrated that his agents of harm are members of the Urabeños who have the motivation and desire to harm him if he returns to Colombia stemming from his former role as a XXXX XXXX in that country. On a balance of probabilities, I find that the Appellant faces a personalized prospective risk to his life if he returns to Colombia. Internal Flight Alternative (IFA) [52] 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.12 [53] 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.13 [54] In the present case, the Urabeños have the motivation to track down the Appellant in Colombia. Indeed, after quitting his job in XXXX 2015 he was approached by three armed men in XXXX 2016 who blamed him for XXXX XXXX; in XXXX 2016 he was threatened at gunpoint after XXXX XXXX XXXX XXXX XXXX XXXX XXXX belonging to a member of the Urabeños, and armed members presented at the home of the Appellant's motor on XXXX XXXX, 2016 on a quest to find the Appellant in connection with their motorcycle. It bears repeating that the Appellant's risk in Colombia must be understood based on his profile as a former XXXX XXXX. [55] I also find the Appellant cannot relocate safely elsewhere in Colombia because the personal risk that he faces from the Urabeños extends to every part of the country. I make this statement noting that the Urabeños have the capacity to track down the Appellant in Colombia. A 2019 Colombia Report14 describes the Urabeños as Colombia's largest illegal armed group with between 3,000 and 7,000 combatants. Another source describes that Urabeños is Colombia's largest illegal armed group with a national reach-meaning that this group is able to operate throughout the country.15 [56] In sum, I am satisfied on a balance of probabilities that the Appellant would be personally subjected to a risk to life or a risk of cruel and unusual treatment or punishment from Urabeños if he relocates elsewhere in Colombia. Given this finding, it is not necessary to consider the second prong of the IFA test. State protection [57] I find the Appellant cannot expect adequate state protection in Colombia. [58] In the present case, the Appellant felt unsafe about making a police complaint given corruption and collusion that prevails between armed groups and the police. Nevertheless, he explained that he still made a complaint on the same day he departed from Colombia on XXXX XXXX, 2016. He testified that he does not have any confidence of ever receiving any protection from the police, noting that corruption is rampant. Moreover, his two brothers were murdered by armed groups in Colombia in 2002 and 2010 and no one was ever charged with the murders. [59] I find that Appellant's testimony is compatible with documentary evidence. As noted above, the Urabeños is described as the largest and most influential illegal armed group in Colombia with a national reach.16 Colombia Reports indicates that some members of the group have been arrested but authorities have failed to curb the power of this group and their continued influence allows them to engage in corruption and collusion with local and regional authorities.17 They claim to have informants in civil society, the military and the political sphere.18 Objective evidence further states that it is normal at the [National Protection Unit] to take a long time to provide protection to threatened people; the vast majority of victims of criminal groups do not receive protection; and the source of the threat is seldom investigated.19 [60] Under the circumstances, I find the Appellant has rebutted the presumption of adequate state protection in Colombia. [61] 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. VIII. REMEDY [62] For all these reasons, I allow the appeal, finding that the Appellant is a person in need of protection pursuant to s. 97(1)(b) of IRPA. Patricia O'Connor Me Patricia O'Connor July 31, 2019 Date PO/lp 1 The criminal group Los Urabeños is a paramilitary group in Colombia also knows as Clan Úsuga or Clan Úsuga David. They refer to themselves as Gaitanist Self-defense Forces of Colombia (the Autodefensas Gaitanistas de Colombia). They are also known by the authorities as Clan del Golfo. See National Documentation Package (NDP) for Colombia, 31 May 2017, Tab 7.2 Paramilitary Successor groups and criminal bands (bandas criminales, BACRIM) areas of operation and criminal activities, including the Clan del Golfo [...] COL105773, IRB, 24 April 2017. 2 RPD decision, para. 15. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 55. 4 Affidavit from XXXX XXXX XXXX XXXX, Record of Appeal, p. 118. 5 Affidavit from XXXX XXXX, Record of Appeal, p. 128. 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), paras. 78, 103. 7 Ibid., paras. 58, 59 and 70. 8 RPD decision, para 17. 9 Audio recording of the RPD hearing at 29:09. 10 Tab 1.7, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia, September 2015, UNHCR identifies certain activities in urban and inter-municipal transport, taxi and motorocycle taxi services are particularly vulnerable to extortion, p. 32. 11 Ibid, p 53, fn 376 states that Urabeños are reported to have nation-wide networks with other armed groups and are able to trace and target individuals anywhere in the country. 12 Momodu v. Canada (Citizenship and Immigration), 2015 FC 1365, para. 6; Abdalghader v. Canada (Citizenship and Immigration), 2015 FC 581, para. 22. 13 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). 14 NDP for Colombia, 31 May 2019, Tab 1.2, Illegal armed Groups' territories, Colombia Reports, 15 March 2019. 15 Tab 7.2, supra note 1, p. 5. 16 Tab 7.15, The Urabeños (also known as Clan Úsuga or Autodefensas Gaitanistas de Colombia) including areas of operation, especially in Buenaventura, criminal activities and state response [...]COL105044.E, IRB Response to Information Request, 6 March 2015. 17 Ibid. 18 Tab 1.2, supra, note 14. 19 Tab 7.15, supra note 16, p. 20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 13 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB8-03926