Citation: 2020 RLLR 27
Tribunal: Refugee Protection Division
Date of Decision: October 23, 2020
Panel: Bjorn Einarson
Counsel for the Claimant(s): Leonardo Jose Di Leone Velasquez
Country: Colombia
RPD Number: VB8-06573
Associated RPD Number(s): VB8-06586, VB8-06592, VB8-06593
ATIP Number: A-2021-00540
ATIP Pages: 000157-0000165
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claims of [XXX] (the “principal claimant”), [XXX] (“the associate claimant”, his wife), [XXX] “the second associate claimant, their daughter), and [XXX] (“the minor claimant”, their son). The minor claimant claims to be a citizen of Colombia and the United States of America, the second associate claimant a citizen of Venezuela and Colombia, the associate claimant a citizen of Venezuela, and the principal claimant a citizen of Colombia. All claimants are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1
[2] The tribunal designated [XXX] as representative for the minor children included in the claim, being [XXX].
ALLEGATIONS
[3] The totality of the claim is contained the claimants’ Basis of Claim forms and corresponding narratives.2
[4] The risk to the claimants began in 2014. After living temporarily in the United States, the family moved to Colombia in 2012. In 2014, when political tensions in Venezuela were rising, the associate claimant traveled to her home country for three months to engage in political activism against the Maduro regime on behalf of the VOLUNTAD POPULAR political party. While in Venezuela she engaged in street protests and served as organizer for her political party in her local municipality of Lagunillas. She was involved in numerous efforts to encourage people to vote and to protest against the Maduro regime. After three months of these political activities, she was beaten by state agents and was visited at her home by state agents, which caused her to return to Colombia to live with her family. Because the agent of harm in this case was the Maduro regime, and because the agent of harm was motivated by the associate claimant’s political activity, the associate claimant sought to leave Venezuela.
[5] Approximately four years passed, and the associate claimant continued her support to her political party remotely from Colombia. In [XXX] 2018, the principal claimant began to receive a series of approximately fifteen threat-related phone calls from the EJÉRCITO DE LIBERACIÔN NACIONAL (ELN), which has close operational ties with the Maduro regime in Venezuela. The principal claimant received the calls from the ELN between [XXX] 2018 and the family’s departure to Canada on [XXX], 2018. At first the ELN appeared motivated by extortion, demanding payment, but as it became clear that the principal claimant did not have much money to extort, the nature of their threats shifted towards issuing death threats against the entire family for the associate claimant’s political activism against their ally, the Maduro regime.
[6] Because the associate claimant is a political opponent of both the Maduro regime in Venezuela and its operational proxies in Colombia, the ELN, the associate claimant fears she will be harmed anywhere she resides in either country. Although the principal claimant and second associate claimant are not themselves political activists, they fully support the political activities of the associate claimant. Because of their familial association with the associate claimant, and their support of her political activism, the other claimants claim they would be regarded by the ELN or the Maduro regime as having the same political opinions as the associate claimant.
[7] With respect to the minor claimant, no claim against the United States of America is being made.
DECISION
[8] I find that, with the exception of the minor claimant, all claimants are refugees, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should they return to Colombia or Venezuela, on account of their political opinion or imputed political opinion.
[9] The minor claimant has not advanced any claim against the United States of America and has not presented any evidence about the risks he may face in the United States of America. Therefore, I cannot find that he faces a serious possibility of persecution, or on a balance of probabilities, a risk of s. 97 harm in the United States of America. Accordingly, his claims for protection are rejected.
Nature of the harm
[10] I have examined this claim under section 96 of the IRPA, as I conclude that the risk the claimants – apart from the minor claimant – described constitutes persecution based on at least one of the grounds prescribed in section 96, specifically their political opinion or their imputed political opinion.
Identity
[11] I find that the principal claimant’s, the second associate claimant’s, and the minor claimant’s identities as nationals of Colombia, and the associate claimant’ s and the second associate claimant’s identities nationals of Venezuela, and the minor claimant’s identity as a national of the United States of America is established by the documents provided, namely their passports.3
Credibility
[12] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.4 However this presumption does not apply to inferences (conclusions drawn from facts) or speculation (for which there is no evidentiary basis).
[13] There is no evidence before me to rebut this presumption.
[14] I find that the associate claimant’s profile as a dissident against the Maduro regime to be credible in light her testimony and the documentary evidence before me, namely an official letter and registration card certifying her membership and participation in the VOLUNTAD POPULAR political party.5
[15] By establishing this credible profile with her testimony and documentary evidence, the profile of the principal and second associate claimant are likewise supported along with their own credible testimony. Through credible testimony from the principal claimant and the second associate claimant to the effect that they fully support the associate claimant in her political activism, I find that these claimants have credibly established their profile as persons who would be perceived as having imputed political opinions similar to the associate claimant.
Objective basis
[16] Given that there are no serious credibility issues with respect to the allegations, coupled with the documentary evidence set out below, I find that, with the exception of the minor claimant, the claimants have established a prospective risk of being subjected to the following harm: namely that they would face judicial or extra-judicial violence on the part of the Maduro regime or its proxies within Venezuela or violence on the part of the ELN in Colombia. As highlighted in the documentary evidence, this extra-judicial violence amounts to persecution.
[17] This risk is corroborated by the following documents in the National Documentation Package (NDP).6
Are opponents of the Madura regime persecuted in Venezuela?
[18] While the documentary evidence specifically focused on the VOLUNTAD POPULAR in the NDP is dated to 2014, it nevertheless establishes on a balance of probabilities that the VOLUNTAD POPULAR is viewed by the Maduro regime as its opponent and that even as early as 2014 they received persecutory treatment by the Maduro regime in the form of extra-judicial raids, arbitrary detention, political manipulation of the judicial system, and other forms of political intimation.7 The state of political conflict has significantly intensified since 2014 when that document was published, and even more so since 2018 and 2019 when the Maduro regime came into intensified conflict with the competing regime of Juan Guaido, president of the National Assembly. In this heightened environment of conflict, opponents of the regime and those perceived to be opponents of the regime are subjected to “unlawful or arbitrary killings, including extrajudicial killings by security forces of the [… ] Maduro regime, including colectivos (regime-sponsored armed groups); forced disappearances; torture by security forces; arbitrary detention by security forces; harsh and life-threatening prison conditions; political prisoners; unlawful interference with privacy; and lack of judicial independence.”8 US State Department reporting notes that in the current climate, the Maduro regime uses the “judiciary to intimidate and prosecute individuals critical of regime policies or actions.”9
[19] The US State Department also notes that in “many cases, particularly regarding the political opposition, regime-aligned authorities searched homes without judicial or other appropriate authorization, seized property without due process, or interfered in personal communications. FAES and other security forces regularly conducted indiscriminate household raids. Media reports documented raids by security forces on the homes of at least 10 opposition party politicians during the year.”10
[20] These actions extend also to perceived opponents: “[r]egime-aligned intelligence agencies, which lacked independent oversight, conducted surveillance for political purposes. Courts relied on evidence obtained from anonymous patriotas cooperantes (cooperating patriots) to harass perceived opponents [emphasis added] of the[…] regime, and senior[… ] Maduro regime-aligned officials used personal information gathered by patriotas cooperantes to intimidate regime critics and human rights defenders.”11
Does the ELN act as a proxy of the Madura regime in Colombia?
[21] Recent country countries reported in Exhibit 6 demonstrate a clear operational connection between the Maduro regime and the ELN. On July 5, 2019, the Washington Post reported that some analysts are now describing the ELN as a “Colombo-Venezuelan rebel army” given the strong operational links between the two. Reuters, citing Colombian military intelligence sources, reported June 5, 2019 that 45% of the ELN’s fighters – including its commanders – are hiding in neighboring Venezuela and receiving protection from the Maduro regime. On September 12, 2019, the Washington Post reported on Venezuelan intelligence leaks to a Colombia newspaper Semana that describe “Venezuela’ s relationship to Colombian “red groups” [like the ELN] as something close to Iran’s relationship with Hezbollah.” The reporting states that “The documents leaked to Semana imply Venezuela is mainstreaming ELN and the resurgent FARC into its intelligence systems, relying on the groups to help identify high-value military targets inside Colombia.” Recent reporting in January 2020 from InSight Crime highlights that while the Maduro regime does not officially recognize the ELN as a formal ally, the two entities share a significant covert operational relationship.12
[22] Given this considerations, I find that there is sufficient country condition reporting to conclude that, on a balance of probabilities, the ELN is sufficiently operationally enmeshed with the Maduro regime that an intelligence-sharing relationship exists such that the disclosure of the associate and principal claimant’s identities and activities to the ELN could be facilitated. In this sense, the claimants’ allegation of fear regarding the ELN targeting the family in Colombia because of the associate claimant’s activities and political profile in Venezuela is well-founded in objective country conditions.
[23] Considering the totality of the allegations and the country conditions of both Venezuela and Colombia, I find that there is an objective basis for the allegations the associate claimant faces persecution in both countries for her political activities and associations in Venezuela. I find further that the principal claimant and the second associate claimant, because of their relationship to the associate claimant, would face a serious possibility of persecution in both countries because of imputed political opinions; they would be perceived by the Maduro regime or the ELN as liable for the same political offences as the associate claimant and thus face a serious possibility of persecution.
State protection
[24] Whereas – insofar as Venezuela is concerned – the agent of persecution is the state, I find that adequate state protection would not be reasonably forthcoming in this particular case.
[25] Insofar as Colombia is concerned, and the ELN is the agent of persecution, I find that as per reporting in NDP 7.23, the ELN has the capacity to monitor targets across Colombia.13 That the ELN has the capacity to conduct surveillance operations across Colombia leads me to find that there is a serious possibility they could mount kinetic operations if sufficiently motivated. The same reporting notes that state protection against this threat actor is “very limited” and the “measures in place do not yet meet the needs on the ground and are not adapted to living conditions in the areas where most violence has been reported.”14 As such, I find that adequate state protection in Columbia would likewise not be reasonably forthcoming.
Internal flight alternative
[26] I have considered whether a viable internal flight alternative exists for the claimants.
[27] With respect to Venezuela, on the evidence before me and given that the agent of persecution is the state, and the state has effective control over the entire country, I find that there is a serious possibility of persecution throughout Venezuela.
[28] With respect to Colombia, given the above considerations regarding the capacity of the ELN to monitor its targets anywhere in Colombia, I find that there is a serious possibility of persecution throughout Colombia.
CONCLUSION
[29] In light of the preceding, I conclude that the principal claimant, the associate claimant, and the second associate claimants are refugees, pursuant to section 96 of the IRPA. Accordingly, I accept their claims.
[30] The minor claimant did not establish that he faces a serious possibility of persecution, or that, on a balance of probabilities, he faces s. 97 harm in the United States. His claims are rejected on that basis.
(signed) Bjorn Einarson
October 23, 2020
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Exhibit 2.1, 2.2, 2.3, 2.4.
3 Exhibit 1.
4 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.).
5 Exhibit 4.
6 Exhibit 3.
7 Exhibit 3, National Documentation Package, Venezuela, 30 September 2020, tab 4.11: The political party Voluntad Popular, its structure, as well as its main positions and officials; the conditions to become a party member, including a description of the membership card; the treatment reserved for members of this political party… Immigration and Refugee Board of Canada. 24 September 2014. VEN104949.FE.
8 Exhibit 3, National Documentation Package, Venezuela, 30 September 2020, tab 2.1: Venezuela. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. p. 2.
9 Exhibit 3, National Documentation Package, Venezuela, 30 September 2020, tab 2.1: Venezuela. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. p.11.
10 Exhibit 3, National Documentation Package, Venezuela, 30 September 2020, tab 2.1: Venezuela. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. p. 13.
11 Exhibit 3, National Documentation Package, Venezuela, 30 September 2020, tab 2.1: Venezuela. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. p. 18.
12 Exhibit 6.
13 Exhibit 3, National Documentation Package, Colombia, 12 June 2020, tab 7.23: The National Liberation Army (Ejército de Liberación Nacional – ELN), including number of combatants and areas of operation; activities, including ability to track victims; state response and protection available to victims (2016-April 2018). Immigration and Refugee Board of Canada. 23 April 2018. COL106085.E. p. 8.
14 Exhibit 3, National Documentation Package, Colombia, 12 June 2020, tab 7.23: The National Liberation Army (Ejército de Liberación Nacional – ELN), including number of combatants and areas of operation; activities, including ability to track victims; state response and protection available to victims (2016-April 2018). Immigration and Refugee Board of Canada. 23 April 2018. COL106085.E .. p. 10.