VC0-01374

RAD File / Dossier de la SAR : VC0-01374 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 / heard at Ottawa, ON Appel instruit / entendu à Date of decision July 9, 2020 Date de la décision Panel Alison Kennedy Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal. XXXX XXXX XXXX XXXX (Principal Appellant) is a citizen of Colombia. He is appealing the decision of the Refugee Protection Division (RPD) that he is not a Convention refugee or a person in need of protection. He is asking the Refugee Appeal Division (RAD) to substitute the RPD's decision with a positive decision recognizing that he is a Convention1 refugee or a person in need of protection, or to send the matter back to the RPD for redetermination. DETERMINATION [2] My role is to look at all the evidence and decide if the RPD made the correct decision.2 I find that the RPD erred in determining that the Appellant has a viable IFA in Bogota, and I find that he faces a serious possibility of persecution if he returns to Colombia. Therefore, I allow the appeal and find that the Appellant is a Convention refugee. BACKGROUND Appellant's allegations [3] In 2002, the Appellant XXXX XXXX XXXX XXXX XXXX XXXX. The Revolutionary Armed Forces of Colombia (FARC) forced the Appellant - XXXX XXXX XXXX XXXX XXXX XXXX - to grow coca plants. The Appellant moved to Bogota in 2005, but returned to XXXX XXXX XXXX XXXX 2012 as he believed that the situation had improved. At this time, the Appellant became a community leader, helping to organize meetings to inform residents of the coca crop eradication program, protesting the Hidroltuango project, and urging the government to support and protect farmers who were transitioning to new crops. [4] The Appellant was threatened by the Autedefensas Gaitanistas De Colombia (AGC) in June 2018, when he was told he needed to start planting coca again. In August of the same year, the Appellant was threatened with death if he did not leave his land. In December, the AGC declared the Appellant a military objective, and posted a notice throughout the community stating that the Appellant was a "military objective regardless of [his] whereabouts". After these threats, the Appellant's spouse moved with her children to Bogota. The Appellant sought state protection, but was not assisted by the authorities. He then came to Canada to claim refugee protection. RPD's determination [5] The RPD determined that the Appellant was credible and accepted the facts as alleged by the Appellant. However, the RPD determined that there was insufficient evidence that the AGC had an ongoing interest in the Appellant, given that he had complied with the various demands of the AGC and that it had occupied XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The RPD also noted that there had been no further threats against the Appellant since February 2019, and his spouse and children had been able to live without difficulty in Bogota. Appellant's arguments [6] The Appellant argues that community leaders such as himself are often the target of violence in Colombia. He presented much new evidence to this effect, including several articles on the targeting and murder of community leaders in Colombia. The Appellant argues that his situation is much like those of the murdered community leaders, given that he coordinated with two social leaders to work on eradication of coca crops, to mitigate potential negative effects of Hidrotuango, and to protect farmers.3 The Appellant alleges that the men he coordinated meetings with were killed in May 2018, and that he too risks being killed if he returns to Colombia.4 [7] The Appellant also provided additional evidence on appeal regarding other similarly situated social leaders who were killed because they promoted crop restitution, questioned the Hidroltuango project, and supported the eradication of coca plants.5 The Appellant argues that he will be at risk as a result of his work as a social leader, as well having been declared a military objective. [8] With regard to state protection, the Appellant argues that his previous efforts to obtain police assistance failed to result in any protection being offered. He further argues that there is impunity for crimes against social leaders.6 He alleges that these failed attempts rebut the presumption of state protection.7 NEW EVIDENCE The evidence presented by the Appellant is accepted in part [9] The Appellant submitted nine new documents on appeal. For ease of reference, I have grouped these documents as follows: a) 5 articles about the killing of social leaders in Colombia (pre-dating the RPD decision) b) 2 articles about the killing of social leaders in Colombia (post-dating RPD decision) c) Letter from the Appellant's diocese d) Affidavit from Appellant's spouse [10] According to the law,8 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [11] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.9 [12] I do not find that the Appellant has satisfactorily explained why the documents included in group (a), which pre-date the RPD decision, were not reasonably available or could not reasonably have been expected to have been provided to the RPD before its decision was rendered. For this reason, I find that these documents do not meet the threshold for the admission of new evidence set out in subsection 110(4) of IRPA. [13] I accept the articles contained in group (b) into evidence on appeal, given that these articles were written after the RPD rendered its decision. Furthermore, I find that these articles are new, given that they deal with country conditions that arose after the RPD rendered its decision. I find that these articles are also credible as they originate from credible news sources. I also find these articles to be relevant as they address the prevalence of the murder of social leaders, including those similarly situated to the Appellant, throughout Columbia. [14] I do not accept document (c), that being the letter from the Appellant's diocese. While I accept that this letter post-dates the RPD's decision, I find that the Appellant has failed to explain why this letter could not reasonably have been produced and submitted prior to the RPD rendering its decision. As such, I find that subsection 110(4) of IRPA has not been met. [15] Finally, I accept document (d), that being the affidavit provided by the Appellant's wife into evidence on appeal. While the information contained in this affidavit was known by the affiant prior to the RPD's decision being rendered, I accept, on a balance of probabilities, the affiant's explanation that she decided not to inform the Appellant about the additional threats she and her children were facing in Bogota as a result of a fear of creating additional stress for the Appellant while he was in Canada and unable to assist her. Consequently, based on the Appellant's wife's affidavit on this point, I find that this information was not reasonably available to the Appellant at the time of the decision, and that he could not reasonably have been expected, in the circumstances, to bring this evidence to the RPD before its decision was rendered, given that this information was unknown to him at that time. I also find that this evidence is new for this reason, and also relevant to the risk the Appellant and his family face in Bogota. I also find, on a balance of probabilities, that this information is credible. Consequently, I admit this affidavit into the appeal record. ORAL HEARING [16] Given that I have admitted new evidence on appeal, I must consider whether an oral hearing is necessary under subsection 110(6) of IRPA. Having reviewed the new evidence and the record before me, I find that an oral hearing is not required in this case because the Appellant's claim is proven on the basis of the evidence before me. ANALYSIS The Appellant has shown a nexus to the Convention [17] In this case, the RPD found that the Appellant did not have a nexus to the Convention. While the RPD accepted that the Appellant was a community leader, it nevertheless found that the Appellant primarily feared that he would be targeted by the AGC to prevent him from reclaiming his land. [18] However, the Appellant provided much evidence during the RPD hearing about his work as a community leader, including his work to eradicate coca plants, to support farmers, and also publicly questioning the Hidroltuango project. He then provided additional evidence on appeal regarding the targeted killing of many community leaders throughout Colombia who were active community leaders like himself. [19] Based on the Appellant's testimony and evidence, I find that the Appellant has proven that he has a nexus to the Convention as a result of him being a social leader in Colombia due to his work on the coca eradication program, his concerns about the Hidroltuango project, and also urging the government to support and protect farmers who were transitioning to new crops. Consequently, I must consider whether the Appellant faces a serious possibility of persecution upon his return to Colombia. The Appellant has demonstrated a serious possibility of persecution [20] In reaching my decision in this case, I adopt several facts as being proven by the Appellant, on a balance of probabilities: that he was a community leader in Colombia; that the Appellant was threatened by the AGC on several occasions; that the Appellant was declared a military target by the AGC in 2018; and that the Appellant sought help from the authorities on two occasions. [21] I find, based on the Appellant's evidence and testimony, that he has demonstrated that he faces a serious possibility of persecution if he returns to Colombia, including in Bogota. In determining that the Appellant did not face a risk in Bogota, the RPD failed to consider that the Appellant was marked as a military objective by the AGC in 2018. I find that the fact that that he was made a military objective suggests that the AGC would indeed be willing to use its contacts and resources to track the Appellant throughout Colombia. This is also supported by the documentary evidence which states that relocation for those identified as a military objective is not an option, as paramilitary groups have large networks and extended vertical organizations throughout the country.10 [22] Given that the RPD noted no credibility issues with the Appellant's status as a military objective, which is supported by both his testimony and his documentary evidence, I find that the RPD erred in failing to consider how this status would affect the AGC's motivation to track him throughout Columbia. Furthermore, the objective documentary evidence suggests that those identified as a military objective - like the Appellant - would be able to be tracked throughout the country as a result of the large networks of paramilitary groups, suggesting that the AGC also has the means to locate him in throughout the country, including in Bogota. [23] Furthermore, the Appellant's evidence of being declared a military objective must be considered in the context of the events that were occurring around him at the time. The Appellant testified - and provided evidence - that the two people he worked with to convene meetings were killed in May 2018. In the months following, the Appellant was then threatened and labeled a military objective. From there, the Appellant provided evidence about several other farmers from his area being killed by the AGC around this time. [24] The Appellant has also provided new evidence on appeal regarding community leaders who have been targeted and killed as a result of their community work on the same issues canvassed by the Appellant in his work. Indeed, the Appellant has also provided new evidence regarding several community leaders in Colombia who were killed because of their promotion of crop restitution, a list of social leaders killed because they publicly questioned the Hidroltuango project, as well as a list of those killed because they were focused on the eradication of coca plants and crop substitution. [25] I find that the Appellant has provided evidence that those in a similar situation have been targeted and killed for acting in a similar leadership capacity he undertook while in Columbia. Furthermore, while not determinative in this case, I note that the Appellant's wife has provided new evidence regarding the ongoing risks and threats she faces living in Bogota. I find that the Appellant's evidence and testimony in this instance - in combination with the documentary evidence suggesting that relocation for those identified as a military objective is not an option - means that the Appellant faces a serious possibility of persecution throughout Colombia, including in Bogota. For this reason, I also find that the Appellant has demonstrated that there is no internal flight alternative available to him in Colombia. The Appellant has rebutted the presumption of state protection [26] I find that the Appellant's testimony and evidence prove that he attempted on two occasions to obtain state protection in Colombia prior to leaving, including after he was named a military objective. However, despite approaching the police on two separate occasions, the police failed to provide any protection to the Appellant, or even open a file regarding the threats against him. [27] The documentary evidence suggests that the government's ability to provide protection is highly limited because of a lack of presence and capacity, as well as issues of corruption and complicity by local and regional authorities.11 Furthermore, I am mindful of the documentary evidence provided by the Appellant demonstrating that the Columbian government has failed to protect social leaders - like the Appellant - on many occasions.12 I have also considered the documentary evidence provided by the Appellant stating that the rate of impunity for killing human rights defenders in Colombia is a staggering 95%.13 [28] Considering the documentary evidence before on the difficulties associated with obtaining state protection in Colombia, in additional to the Appellant's credible testimony regarding his own unsuccessful attempts to seek state protection in Colombia, I find that he has provided clear and convincing evidence that Colombia would be unwilling or unable to provide him protection upon his return. As such, I find that he has rebutted the presumption of state protection. CONCLUSION [29] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) "Alison Kennedy" Alison Kennedy July 9, 2020 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Exhibit P-2, Appellant's Record, Memorandum at p. 47. 4 Ibid. 5 Ibid. at p. 49. 6 Ibid. at p. 43. 7 Ibid. at p. 44. 8 Subsection 110(4) of the IRPA. 9 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 10 RAD-1, NDP for Colombia, 12 June 2020, Tab 7.21: What it means to be a 'military objective' (objetivo militar), including who executes these threats and methods of issuing them; whether there is an internal flight alternative for someone who has been issued a threat; state response, Immigration and Refugee Board of Canada, COL105118.E. 11 RAD-1, NDP for Colombia, 12 June 2020, Tab 1.7: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia, United Nations High Commissioners for Refugees, HCR/EG/COL/15/01. 12 See, for example, Exhibit P-2, Appellant's Record, supra note 2, at pp. 60 - 88. 13 Ibid. at p. 85. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-01374 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français