1412686 (Refugee)

[2015] AATA 3664

1412686 (Refugee) [2015] AATA 3664 (13 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412686

COUNTRY OF REFERENCE:                  Colombia

MEMBER:David Corrigan

DATE:13 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 13 November 2015 at 12:54pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Colombia, applied for the visas [in] September 2013 and the delegate refused to grant the visas [in] July 2014.

3. The applicants appeared before the Tribunal on 12 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

15. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration and has done so.

    Member of the same family unit

19. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. I have before me material which includes:

    ·Application for protection visa with statement of claims;

    ·Copies of the applicants’ passports;

    ·Interview with delegate dated [in] June 2014;

    ·Copies of translated reports of the kidnapping of the first named applicant’s (the applicant) [Relative A’s] kidnapping;

    ·Copies of translated reports by [a government office], dated [in] 2013 and [later in] 2013.

21. The applicants’ claims can be summarised as follows.  The applicant was born in [Colombia] in [year].  He first arrived in Australia as the secondary holder of a [temporary] visa granted to the applicant father’s partner.  His parents are no longer together and his mother lives in Colombia.  The applicant father was born in [year] in Colombia and had first arrived in Australia in [2007] on [temporary] visa.

22. In October 2008, the applicant’s [Relative A] (a wealthy merchant) was kidnapped and held for ransom.  Although the army managed to rescue him, the [government office] advised that the victim’s family still faced risks as not all of the kidnappers had been apprehended.  The applicant’s family sent the applicant to live with his applicant father in Australia.

    Country of reference

23. The applicants claim to be Colombian nationals.  Based on the copy of their passports, I find that Colombia is their country of nationality for the purposes of the Convention and also their receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Assessment of claims

24. Both applicants presented as credible witnesses at the hearing and both have given consistent evidence.  Their claims as to the kidnapping of the applicant’s [Relative A] are supported by media reports and submitted translated copies of reports from the [government office].

25. I accept in October 2008, the applicant’s [Relative A] (a wealthy [merchant] and landowner) was kidnapped and held for ransom.  I accept that the kidnappers threatened to kill [Relative A] but he was rescued by the authorities after [a period] of captivity.  I accept that [some] of the kidnappers were arrested and are currently imprisoned and that [some] others have not been arrested but been sentenced to imprisonment in their absence.  I accept that the applicant was close to [Relative A] and would visit him and stay with him in [Relative A’s] home town of [name].  I accept that [Relative A], one to two years later, received condolence cards (of his own death).  I accept that after the kidnapping incident, [Relative A] employed a body guard.  I accept that after the incident, the applicant’s [family] restricted the applicant’s movements and moved him around from houses out of concern for his safety and that still concerned for his safety sent him live with the applicant father in Australia.  I accept and have taken into account that the [government office] have recently advised that some of the individuals responsible for the kidnapping are currently free and represent a risk for the relatives of [Relative A].

26. Taking into account all of the above, I find that the chance or risk that the applicant in the reasonably foreseeable future will be targeted or seriously harmed or significantly harmed by the kidnappers (or any associated group including the National Liberation Army (NLA), the Revolutionary Armed Forces of Colombia (FARC) or BACRIM (Spanish for “criminal band”[1])) or anyone else is remote. I do so because seven years has now passed since the kidnapping incident and the kidnappers and these groups have not attempted to harm [Relative A] or any other family member. Whilst, I accept that the condolence cards sent to [Relative A] were a threat, these were sent around five years ago and [Relative A] and other family members have not been targeted or harmed since. The applicant continued to reside and went to school in Colombia and the general area for a long period of time after the kidnapping incident before coming to Australia in [2011]. The lack of threats or attempts to harm the applicant and other family members indicates that the kidnappers and their associated group are not interested in targeting or harming the applicant for any reason including extortion or revenge. The applicant father told the Tribunal that he was not concerned for his own safety.

    [1] Insight Crime, Colombia’s BACRIM expand as FARC talks peace, 5 November 2014,

27. In making these findings, I have taken into account all the country information submitted by the applicants and that contained in the delegate’s decision.  I accept that kidnappings are as a significant problem in Colombia; however country information such as the submitted United States Department of State, Overseas Security Advisory Council, Colombia 2013 Crime and Safety Report: Bogota indicate that the number of kidnappings fell dramatically over the previous 10 years.  The United States Department of State Country Reports on Human Rights Practices for 2014, Colombia state that according to the NGO Fundacion Pais Libre, between January 1 and June 30 2014, a total of 135 persons were kidnapped, 61 percent of which was for extortion.  However, this needs to be seen in the context that Colombia has a population of 46,000,000.[2]

    [2] Central Intelligence Agency, The World Factbook – Colombia,

28. I have also had regard to the recent UNHCR Eligibility Guidelines for Colombia[3] and the potential risk profiles identified.  The UNHCR advise that depending on the particular circumstances of the case, they consider that persons in professions susceptible to extortion, including but not limited to agricultural workers and small landowners, peasant farmers, persons involved in informal and formal commerce such as tradesmen, public transport workers, taxi drivers and street vendors may be in need of international refugee protection.  I have accepted that the applicant’s landowning [Relative A] has been kidnapped but given all the particular circumstances, I still consider it remote that the applicant will be seriously or significantly harmed.

    [3] United Nations High Commissioner for Refugees, Eligibility Guidelines for Assessing the Protection Needs of Asylum –Seekers from Colombia, Se

29. The UNHCR have also advised that depending on the particular circumstances of the case that children, in particular those from areas where guerrilla groups or New Armed Groups engage in underage recruitment may be in need of international refugee protection.  I consider the chance or risk that the applicant, in his particular circumstances, will be subject to forced recruitment, kidnapping or other forms of serious harm or significant harm at the hands of such groups to be remote.  The applicant resided in Colombia until [2011] without facing any threats or attempts to harm him.  The UNHCR report that human rights abuses mostly affect children associated with artistic and cultural activities that armed groups perceive as threats to social control, children who oppose forced recruitment, children outside of the educational system or students who get involved with income generation activities in the  informal economy – the applicant does not come within any of these categories.  According to the UNHCR, 343 cases of forced recruitment or use of children were reported between 2009 and 2011 with 81 cases being verified by the UN in 2013.  This however has to be seen in the context of Colombia’s large population of 46,000,000.  

30. At the hearing, the applicant father expressed a concern that the applicant would have to undertake or repeat additional years of schooling given he had been studying in Australia. He also feared the applicant may be subject to bullying because of his age.  I find that if the applicant has to undertake any additional years of study, this will not constitute either serious harm or significant harm.  I appreciate the concerns of a father but I also consider it completely speculative that the applicant will be bullied if he returns to the Colombian education system and I note that the applicant is required to study at a lower level he would be older than the other school children in the classes.  I find that the chance or risk that in the reasonably foreseeable future that the applicant will face serious harm or significant harm on account of these matters is remote.

31. Based on his individual circumstances and the country information, I find that the applicant does not face a real chance of persecution on account of his membership of particular social groups consisting of children in Colombia and his family or any other Convention reason or any non-Convention reason, now or in the reasonably foreseeable future from the kidnappers, ELN, FARC, BACRIM or anyone else. 

32. Based on his individual circumstances and the country information, I find that the applicant father does not face a real chance of persecution on account of his membership of particular social group consisting of his family or any other Convention reason or any non-Convention reason, now or in the reasonably foreseeable future from the kidnappers, ELN, FARC, BACRIM or anyone else.

33. Based on their individual circumstances and the country information, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Colombia that there is a real risk that they will suffer significant harm on these bases.

    Crime

34. The applicants have expressed a general fear of the crime (including robbery) in Colombia.  I accept after consideration of the submitted materials (including the DFAT travel advice) that Colombia has a substantial crime rate.  However, neither applicant has claimed that they or any family member (other than the kidnapping of [Relative A]) has been the subject of any crime and I find the chance or risk that they will be seriously or significantly harmed by any criminal act to be remote.  Additionally, considering the country information and their individual circumstances, I find that if they are targeted for any crime such as robbery the motivation for that will be for financial gain rather than their race, religion, nationality, political opinion or membership of a particular social group and will not involve systematic and discriminatory conduct as required by s.91R(1)(c) of the Act and will not therefore constitute persecution.  Considering their individual circumstances and the country information, I further find that there is taken not to be a real risk of significant harm as the real risk is one faced by the population of the country generally and not them personally: s.36(2B)(c) of the Act.

    Unemployment

1. The applicants have expressed a general fear of unemployment with the applicant father telling the Tribunal that there was a lot of corruption in the country and that age could make finding work more difficult.  I accept this, however the applicant was able to work in a [business] for [number] years in Colombia before coming to Australia and he has a Colombian [qualification].  He has worked in Australia in that specific] field.  The applicant is a [age] year old student successfully completing his high school studies and has a well off [Relative A].  The Colombian economy is growing well.[4]  In all these circumstances, I consider the chance or risk they will face unemployment in the reasonably foreseeable future to be very speculative.  I do not accept that they face a real chance in the reasonably foreseeable future of significant economic hardship that threaten their capacity to subsist or a denial of the capacity to earn a livelihood of any kind, where the denial would threaten their capacity to subsist or any other form of serious harm.  I further find that if they are unemployed that this will not involve systematic and discriminatory conduct as required by s.91R(1)(c) of the Act or be for any Convention reason.  I further find that any period of unemployment will not involve significant harm as defined by s.36(2A) of the Act and there is taken not to be a real risk that they will suffer significant harm as this is a real risk is one faced by the population of the country generally and is not faced by them personally: s.36(2B)(c) of the Act.

   Cumulative assessment

   [4] Bloomberg Business, Colombia GDP Grew 3% in Second Quarter, Exceeding Forecasts, 11 September 2015,

2. Considering the applicants’ individual circumstances and the independent country information cumulatively, I find that they do not face a real chance of persecution in the reasonably foreseeable future for any reason (Convention or non-Convention related).  Their fear of persecution is not well-founded. 

3. Considering the applicants’ individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Colombia that there is a real risk that they will suffer significant harm.

   Conclusions

4. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

5. The Tribunal affirms the decision not to grant the applicants Protection visas.

   David Corrigan
   Member