1502103 (Refugee)

1502103 (Refugee) [2016] AATA 4740 (23 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1502103
COUNTRY OF REFERENCE:                  Colombia
MEMBER:John Cipolla
DATE:23 November 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 23 November 2016 at 1:27pm

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Colombia, applied for the visa [in] March 2014 and the delegate refused to grant the visa [in] February 2015.
The applicant appeared before the Tribunal on 4 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father and [brother].
The applicant was represented in relation to the review by his lawyer who is also a registered migration agent.
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Tribunal
Information in his application for protection indicates the applicant is [an age] year old Colombian national who was born in Bogota Colombia on [date].
The applicant arrived in Australia as the holder of a [temporary] visa [in] November 2012 which was valid until [April] 2013. The applicant then applied for a further [temporary] visa [in] April 2013. [In] June 2013 the applicant applied for a [different temporary] visa on the basis of his dependency on his father who had been granted a [visa] on the basis of his de-facto [relationship]. [In] June 2013 the applicant withdrew his application for [the first temporary] visa. The applicants [second temporary] visa application was refused by a delegate of the Department [in] September 2013 on the basis that the delegate could not be satisfied that the applicant was a dependent member of his father’s family unit. The applicant sought merits review of the Departmental refusal of the [second temporary] visa to the then Migration Review Tribunal and that Tribunal (differently constituted) affirmed the decision of the Departmental delegate on 28 February 2014. As noted the applicant made an application for the visa that is the subject of this review [in] March 2014.
A summary of the claims made in his application are as follows: the applicant claims to have been the participant in a large number of protests in Colombia regarding a range of issues that include government corruption, university privatisation, bull fighting, free trade deals with the United States, and ‘falsos positivis’, a series of events in which Colombian civilians were killed by Colombian Armed Forces and recorded in official reports as being members of the Revolutionary Armed Forces of Colombia (FARC). The applicant did not organise the protests but was merely a participant. The applicant claims to have known the organisers of these protests. The applicant claims that as a result of this knowledge he has been targeted in Colombia. The applicant claims that he started receiving death threats in Colombia. The applicant claims that in December 2008 he was stopped by three plainclothes men who asked him for identification. The applicant claims that he realised that these men were part of the Colombian paramilitary and they tried to force the applicant into a van threatening him with a gun. The applicant was able to evade these men and returned home. The applicant claims that whilst he was escaping he was hit [and] as a result he now bears a scar. The applicant claims that in September 2011 he was attacked from behind by some people, one of whom the applicant claims recognised him from the above-mentioned incident. The applicant claims that this group started attacking him with sticks, knives and a bottle which was broken over [him]. The applicant claims that the man that he recognised from the previous incident threatened to kill him. The applicant claims the group fled when a security guard from a nearby building fired shots into the air and a woman from the local community threatened to call the police. The applicant claims that his attackers threatened him once again before they fled the scene. The applicant claimed that he had other interactions with the police in which the police tried to entice him to react against them.
REVIEW HEARING
The Tribunal conducted a hearing on 4 October 2016. The applicant attended the hearing along with his [representative] and 2 witnesses. The witnesses were his [father] and his [brother]. The applicant, the witnesses and the Tribunal were assisted by an accredited Spanish interpreter.
At the outset of the hearing the Tribunal advised that it was conducting a review of the decision of the Department of Immigration to refuse the applicant a protection visa. The Tribunal noted that the applicant had lodged a protection visa application with the Department on the basis of him having a well-founded fear of persecution for a Convention based reason and that the Department of Immigration considered the applicant’s claims against both the Refugees Convention and the complimentary protection considerations found in the Migration Act and determined that the applicant was not owed protection obligations by Australia. The Tribunal noted that its task was to conduct a de-novo review of the decision of the Department of Immigration. The Tribunal noted that this required consideration of the evidence submitted with the claims for protection to the Department of Immigration, evidence provided at the review stage and evidence provided at the review hearing.
The Tribunal noted that having regard to the 1951 Refugees Convention, a refugee was a person who owing to a 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. The Tribunal noted that the applicant’s claims also required assessment against the complimentary protection criterion contained in s.36(2)(aa) of the Migration Act. This required satisfaction that the applicant is only owed protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk that they will suffer significant harm. The Tribunal noting that the applicant was legally represented asked the applicant whether his representative had explained these considerations to him and he advised that she had. The Tribunal asked the applicant whether he understood the preliminary comments made by the Tribunal and the relevant considerations the Tribunal needed to turn its mind to in determining the applicant’s claims for protection and he advised that he did.
The Tribunal advised the witnesses that they would need to leave the room and would be called in due course to provide evidence. The Tribunal asked the applicant for his name and date of birth. The Tribunal noted that the applicant would be turning [age] in November and he confirmed this. The Tribunal asked the applicant what age he was when he started school and he advised he was 5 years old. The Tribunal asked the applicant what age he was when he completed his school education and he advised around [age range]. The Tribunal asked how many primary and high schools that the he attended and he advised 2 primary schools and 2 high schools. The applicant advised that he attended a second primary school when his family moved house and that he changed high school when he was around [age range] because he was being discriminated against in the first high school that he attended.
The applicant advised the Tribunal that when he was around [age range] he embraced punk rock and punk music. The Tribunal asked the applicant to name some of the bands that he listened to at that point in time and he advised The Ramone’s, The Clash, Eskoubuto, who were a Spanish punk band and Ira, a Colombian punk band. The applicant advised that punk rock allowed him a vehicle for self-expression. The Tribunal asked the applicant how this manifested itself and the applicant stated he began to wear boots to school instead of shoes, he amended his uniform and modified it which caused him to be targeted by the school principal. The applicant stated that he was not allowed to come to school unless he was properly attired, that if he was inappropriately attired he would be locked in a classroom, that his bags were checked for inappropriate clothes, the applicant stated that when he embraced the punk rock movement and began to dress like a punk rocker that he faced a lot of problems.
The applicant stated that his family were against many political and traditional practices in Colombia. He advised his family were against bullfighting, that it was not fair to the animals, that his family were animal liberationists. The applicant stated that when he was a child he was exposed to a bullfight in Bogota in which animals were hurt and this fired up his activism further.
The Tribunal asked the applicant how his opposition to bullfighting manifested itself for example through what actions. The applicant stated that he wore T-shirts with slogans against bullfighting and he also had buttons on his bag stating that he was against bullfighting.
The Tribunal asked the applicant the reason for him leaving his first high school. The applicant stated that the Principal targeted him and threatened to expel him because of the way he looked and his alteration of his school uniform. The applicant stated that this was a private school and that his parents paid for school lunches and that the applicant was dissatisfied with the quality of food that was being provided by the school authorities. The applicant stated that it was a small school that had a soccer ground, there was no art or music, there were no shared instruments, the applicant stated that he expected a better quality teaching environment and better quality food given that his parents were paying for the schooling. The applicant stated that as a consequence he remained in the school for 2 years and then changed to a public school. The applicant stated that at this private school the school fees went up over the time that he was a student and that the owner of the school was [removed] and the owner’s [relative] took control of the school which led to a further deterioration in the quality of the school.
The applicant stated that he attended a second high school in Bogota called [name]. He advised that the school was named [origin of name].
The applicant stated that he worked from a young age to supplement his parent’s incomes as they always struggled. The applicant advised that he sold Colombian [products] on the street with his mother. He advised that his mother had lost her job at that point because she wanted to join a union and her employer sacked her. The applicant stated that his [brother] was diagnosed with [a medical condition] and the medication and medical costs were expensive and the family had to supplement their incomes with extra jobs in order to pay for the [required] medication and that the family did not get any help from the government and this led to the applicant identifying further social disparity in Colombia.
The Tribunal noted that the applicant had managed to attend primary and high school in Colombia and had gone on to study at university for a period of time. The Tribunal noted that the applicant had then been supported by his family to travel to Australia on a student visa and that the applicant’s father had at some point travelled to Australia. The Tribunal asked the applicant how his family were able to raise the funds for this and asked the applicant whether he would describe his family as middle-class or wealthy. The applicant stated that he would describe his family as poor to middle-class and that his parents had borrowed money to enable him to come to Australia on a student visa.
The Tribunal asked the applicant what made him come to Australia to study and the applicant stated that in September 2011 he was attacked in Colombia, that he did not choose to come to Australia voluntarily. The applicant stated that because of what transpired in September 2011, his father who had at this time relocated to Australia and his mother in Colombia felt that it was in his best interests that he leave Colombia for his own protection. The applicant stated that his father contacted his mother in Colombia and she explained the situation to him and that is why the student visa was applied for. The Tribunal asked the applicant whether he explored the options of studying in any other countries and if so which countries. The applicant reiterated that he was not looking to study outside Colombia and that the events that occurred in September 2011 in Colombia precipitated the need for his family to look for options to get him out of Colombia. The applicant advised that this event stemmed from his political activism in Colombia.

The Tribunal asked the applicant what problems he encountered in Colombia because of his punk attire and his hairdo and piercings. The applicant stated that in September 2010 when his [specified relative] passed away he was refused permission to enter her funeral because of his attire and the applicant described Colombia as being a very conservative Catholic country. The Tribunal asked the applicant whether because of his hairstyle and his clothes he stood out from the crowd in Colombia. The applicant reiterated that Colombia was a conservative Catholic country and he described the population as being extreme Catholics. The applicant stated that the church was involved with conservative politicians. The applicant stated that when he first started dressing in punk attire from around 2002 he was very different from everybody else and it made him stand out and that if he walked down the street people would cross the street to avoid him.
The Tribunal asked the applicant to outline all the problems that he faced because of him embracing punk rock and his attire and hairstyle. The applicant stated that the school principal used to demean him and would accuse him of being a druggie, or of becoming a terrorist or could end up dead. The applicant stated that his father was quite conservative and was unhappy about his look and choice of dress. The applicant advised that his mother on the other hand was more tolerant. The applicant stated that he was told by people that he was evil and a demon and a devil. The applicant stated that he had ongoing problems in school because he did not wear a proper uniform and he was told that his ethics were bad. The applicant stated that if you became a Muslim in Colombia you would not be allowed to study.
The applicant stated that there are a lot of divergent groups in Colombia, right-wing groups, militant groups, fascist groups, and these groups were involved with paramilitary groups such as are Aguilas Negras which translated to the The Black Eagles. The applicant stated that he pierced his tongue and was forced to remove the piercing by his school principal. The applicant stated that his hair and clothes caused problems for him in terms of his ability to find work but the applicant stated that his clothing and his hair and piercings showed who he really was, he advised that punk music often contained political messages. He also advised that there were different elements of punk rock such as the skinheads who were often nationalist fascists and others that had more leftist leanings. The applicant stated that he did not fall into this camp and considered himself more of a leftist/socialist, he was against the abuse of animals, he was against poverty, and he was all for equality.
The Tribunal asked the applicant what information he needed to provide to the Australian government to support his student visa application. The applicant stated that he needed to provide evidence of his academic records and these indicated that he was a good academic student. The Tribunal asked the applicant about tertiary studies in Colombia and he advised that he enrolled in a [course] after completing high school however he only completed [number of] years of this [duration] course before things became difficult for him in Colombia and he and his family looked at options of him leaving the country. The applicant stated that he also needed to provide evidence of the financial capacity to pay for the course and meet the cost of living requirements in Australia. Given the applicant’s description of his family struggling financially and having to borrow money to enable the applicant to travel to Australia, the Tribunal asked the applicant how he was able to convince the Australian government that he had the requisite funds to meet expenses in Australia. The applicant stated that prior to his father coming to Australia in 2007 he was sacked from a company in Colombia where he had worked in [an occupation]. He advised that his father borrowed money to enable the applicant to travel to Australia and that he arrived in Australia as the holder of a student visa in November 2012.
The Tribunal asked the applicant about his study history in Australia and he advised that he undertook some English-language courses. The applicant stated that when he came to Australia he learned [of his father’s situation] and that he was in shock as a result of this and this impacted upon his study in Australia. The Tribunal noted that based on the evidence before it the applicant applied for a further student visa in Australia but withdrew the visa application. The Tribunal asked about the circumstances pertaining to this.
The applicant stated that in 2013 when he applied for a further student visa that he had extreme difficulty securing any work in Australia. He advised that he attended many interviews without success. He advised that his father and his father’s partner paid for his fees and that his mother was supporting his brother in Colombia and struggling financially as well. The applicant stated that he was very angry with his father after learning of his [situation] and his relationship with his [partner]. The applicant stated that he was desperate to obtain a further student visa in Australia and knew that the family would have trouble convincing the Department of Immigration of their financial capacity to meet course fees and cost of living expenses. The applicant stated that he met a guy at the school that he was studying at that advised that he could obtain fake bank documents. The applicant obtained these documents because he was desperate to remain in Australia and had a fear of returning to Columbia. He advised that he did this without the knowledge of his father or mother. The applicant stated that when the documents were checked by the Department of Immigration it became apparent that they had been fraudulently obtained because the Department had called the financial institution and the applicant as a consequence withdrew his student visa application.
The applicant stated that over time his relationship with his [father’s partner] and father improved. The Tribunal noted that after the withdrawal of the student visa application the applicant made an application to the Department as a dependent member of [the] family unit. The Tribunal noted that this application was refused by the Department of Immigration and that the Departmental decision was affirmed by the then Migration Review Tribunal on review. The applicant confirmed that this was the case. The applicant advised that around the time of the review application before the Migration Review Tribunal his father and his father’s partner were experiencing financial difficulty and the applicant obtained some work at this time. The applicant advised that because of this fact he could no longer be considered a dependent member of his father and [partner]’s family unit and that he was open with the Tribunal at review about this fact, knowing that it would lead to an unsuccessful review application. This led to the Departmental decision being affirmed.
The Tribunal asked the applicant about his mother’s current circumstances, where she was residing and what she was doing in Colombia and whether she had a new partner. He advised that his mother had been residing in Bogota but had recently relocated to [another location] in February 2016. He advised that his mother had experienced problems because of his political profile as a student activist and as a punk rocker in Colombia.
The Tribunal asked the applicant about his siblings. He advised that he only had a [brother] who was now a temporary resident in Australia having been found to be a dependent member of a [temporary entrant’s] family unit, namely his father and [the partner]’s family unit. The applicant stated that his [brother] experienced significant problems in Colombia because of the applicant’s profile as a student activist and punk rocker and that this is why the family were keen to attempt to get the applicant’s [brother] out of Colombia for his own safety.
The Tribunal asked the applicant when his father came to Australia for the first time and he advised it was in 2007 as the holder of a [temporary] visa and that his parents split up around this time. The Tribunal asked the applicant whether he was aware of the reason for his parent’s marital breakdown and he advised there were lots of problems, things had been fractured because of the applicant’s embracing of punk rock, his student politics, and the fact that he had come to the adverse attention of paramilitary groups in Colombia.
The Tribunal made reference to folio 69 of the Departmental file a photograph of the applicant with a [specific hairstyle] in black attire with a [specific style] jacket and the applicant advised that this was taken in Bogota in Colombia when he was much younger. The applicant once again stated that he began to dress in this fashion from about the age of [age] or [age] and that he intended to continue to dress like this.
The Tribunal asked the applicant about the area that he grew up in and whether it was conservative. He advised that it was a poor to middle-class area of the city and that most people in the area were against punks. Once again the applicant described Colombia as being a conservative Catholic country.
The Tribunal asked the applicant whether because of his hair and dress choices he stood out. The applicant stated that he did stand out in the community and at University and at high school. The Tribunal asked the applicant whether his choice of hair and dress styles made him the target of police in Colombia. The applicant stated that he was targeted by the police because of the way that he looked and he advised that if the police want to kill you and make you disappear in Colombia this will happen. The applicant mentioned the case of Alfredo Devia who was the leader of a neo-Nazi group. The applicant stated that he met this person on one occasion.
The applicant advised he had been involved in a [specific event] to try to raise donations for poor kids in Bogota. He also tried to raise non-perishable food items and toys for the poor communities. The applicant stated that he was friends with leftist groups in Bogota that worked towards providing support to poorer communities. The applicant advised that due to his activities he was targeted by neo-Nazis that showed him a knife. The applicant stated that they were in outfits with Nazi signs. The applicant stated that he was with his [brother] and that he begged these people not to kill him in front of his family. The applicant stated that he did not report this incident to the police because he was of the view that they would take no action. The applicant stated that this incident occurred in around December 2009. The applicant stated that he was targeted by neo-Nazis because of his socialist activities.
The Tribunal asked the applicant about the levels of student activism at his university. The applicant stated that there was a lot of student activism at his university in Bogota. He advised that his university was called [name] in Bogota. The applicant advised that there are a number of groups active in his university that included [groups] which was a group of nationalist students. He also identified another student [group] which stood for [a] group in his local area. The Tribunal asked the applicant about the basis of student activism at his university. The applicant stated that many students were randomly killed in Colombia and that the security of students was poor in Colombia. The applicant stated that he was attracted to student activism in Colombia in response to these deaths and disappearances. He was concerned about injustice in Colombia and the rights of people. The applicant advised this stemmed from the difficulties that his own parents faced in Colombia particularly with regard to access to medication for his brother’s [medical condition]. He advised that student activists were looking for a better future for the children of Colombia, and better standards of living across the country.
The Tribunal asked the applicant given that he was aware of students being arbitrarily killed and students disappearing in Colombia why he decided to engage in student activism and put his own life at risk. The applicant stated that he saw his own mother killing herself at work to try to support the family. He had witnessed and read about many crimes in Colombia, the corruption of the government in Colombia and because of the class differences that existed in Colombia.
The Tribunal noted that the applicant in his claims for protection advised that he had been involved in a number of student protests. The Tribunal asked the applicant how many he had been involved with and he advised more than 50.
The Tribunal asked the applicant where these protests were held and he advised in different parts of the country and that another issue that caused concern to student activists was the poor treatment of Colombia’s indigenous population, their removal from their traditional lands and the development of these lands by corrupt officials and developers. The Tribunal asked how many people would attend student protests and the applicant advised it varied from the hundreds to the thousands and they occurred all over the country. The Tribunal asked the applicant whether the police or military attended any of the protests and he advised that they had a big presence at any student protests in Colombia.
The Tribunal noted that the applicant in his claims stated that some of the events that he attended were to protest against the deaths of innocent civilians at the hand of FARC. The applicant stated that just today, the date of the hearing the people of Colombia had voted not to accept a peace deal with FARC and that FARC were ostensibly a Communist revolutionary group, involved in selling drugs and randomly killing innocent people.
The Tribunal noted the applicant in his claims for protection and in his interview with the Department of Immigration stated that he engaged in student protests and was not involved in their organisation. The Tribunal asked the applicant whether this was correct. The applicant stated that he was involved in organising [specific events]. The Tribunal asked for an example of [these events] that he organised and he stated one was called [name] in which a number of [groups contributed]. The applicant advised that he [carried out specific roles] and this led to him having a higher profile. The applicant stated that he [participated] in [specific events] across Colombia and the applicant believed that these [events] would have been the subject of surveillance in Colombia.
The applicant stated that student activists would often wear masks at protests because of a fear of being killed or fear of disappearance at the hand of paramilitary groups and other groups in Colombia.
The Tribunal asked the applicant whether he was arrested at the student protests that he attended and if so when and where this happened and about the arrest. The applicant stated that he was arrested on a number of occasions but that he was held for questioning but not jailed. The applicant stated that there was not enough proof of insurrection. The applicant stated that sometimes he was arrested because of the way that he looked and at other times he was arrested because of his involvement in a protest. The applicant advised that all the arrests occurred in Bogota.
The Tribunal asked the applicant whether his personal details were recorded at the times that he was arrested in Colombia and whether he had a police record. The applicant stated that his personal details were recorded and that his identification was taken. The applicant advised that on one occasion his wallet was taken and on another occasion his ID was retained. The Tribunal asked the applicant whether he needed to have a character check or police clearance at the time that he applied for a student visa to Australia. The Tribunal noted that if a police record existed in Colombia this would have been picked up during a character check. The applicant was invited to comment on this. The applicant stated that he could not remember whether he underwent a character check, he did remember undertaking a health check. The applicant stated that he was never jailed for an offence and possibly if you were jailed you would have a record.
The Tribunal asked the applicant why he would have received individual hand written death threats pertaining to his student activism. The applicant stated that he had worked with [a political party] to protest against the government. The applicant advised that student activists were involved in different causes and that this created a profile for these groups of students which was dangerous in Colombia. The applicant stated that he was involved in protests where loudspeakers were used to raise the profile of the issues being pushed by the students. The applicant stated that the only way that the position of poor people in Colombia could change was if they had equitable access to education. The applicant stated that it was these causes that he was involved in. The applicant stated his student activism combined with his punk profile brought him to the adverse attention of the authorities.
The Tribunal asked the applicant about credibility issues raised by the Departmental delegate pertaining to the written threats. The Tribunal noted that in particular the delegate was concerned about one of the threats which contained the [promotional material] of a [punk] [band], and their [album]. The delegate concluded that there was a remote chance that paramilitary groups in Colombia would locate such [promotional material] by a remote punk band based in [location] and that to locate the album on the internet to required a number of searches. The delegate concluded that the applicant concocted this evidence to support his claims for protection and that the applicant because he was part of the punk sub-culture would have known of this band. The applicant was invited to comment on this. The applicant advised that he had never heard of this punk band, that he was not involved in the manufacture of evidence to support his claims and that his mother was living in fear in Colombia because she had been the recipient of these written threats. The applicant stated that his family in Colombia namely his mother was still receiving these threats in his absence and that is why she had left the family home and relocated to [another location]. The applicant stated that he would not give the Department false documents to support his claims for protection. The applicant stated that he attempted to give very specific details to the Department to support his claims and that his mother had kept the letters of threat, because they were real. The applicant stated that these paramilitary groups may be able to find images from the album on websites. The applicant reiterated that he had never heard of this band and that he did not speak English prior to coming to Australia.
The Tribunal made reference to country information including information provided by the applicant’s representative to the Department of Immigration in support of the protection visa application. This information indicated that it was only student activists with a high profile that were targeted by paramilitary groups in Colombia such as Aguilas Negras and persons such as politicians, lawyers and journalists who may be targeted. The Tribunal indicated that the country information suggested that those students who were merely involved in the protest movement were not targeted in the absence of having a high profile. The Tribunal made reference to the profiles of some of the students that had been killed according to country information provided by the applicant at time of application to the Department noting that they all appeared to have high profiles. The applicant advised that there were people that had been targeted without a high profile. The applicant stated that his student activism, along with the [specific events] that he engaged in led him to be targeted and gave him a profile outside an ordinary student protester or activist.

The Tribunal noted that the applicant had provided concocted documents to support his student visa application that he later withdrew and suggested that this indicated he would provide falsified documents to support a protection visa application. The applicant stated that for the reasons explained earlier in the hearing he had provided falsified financial statements to support a student visa application because of his parent’s parlous financial situation. The applicant stated he was desperate to remain in Australia because of his fears of returning to Colombia and that is why he went to those lengths. The applicant stated that once the Department came to the realisation that these documents were falsified he did not persist with the application but withdrew the application at the first available opportunity.
The applicant added that when he applied to be a dependent member of the family unit of his father and his father’s [partner], that he was dependent at the time of application, however because of errors in the completion of the application form the application was not successful. The applicant confirmed that he appealed that decision to the then Migration Review Tribunal who affirmed the Departmental decision. The applicant stated that at the time of the review hearing he had been forced to undertake work because of the financial difficulties that his father and his father’s partner were experiencing at that point in time and he freely admitted to this at the review hearing which led to adverse findings by the Tribunal with regard to his dependency.
The Tribunal noted that the applicant claims to have been assaulted on a number of occasions in Colombia and the Tribunal asked for greater detail about these incidents and when they occurred. The applicant stated that in December 2008 he was hit [with] the butt of the gun and he advised that people acting like police attempted to place him in a van. He advised that he was approached by [men] who asked him for identification and this occurred at [night]. The applicant advised that he had been working at the University and the van pulled up and asked him for identity and checked his wallet. The applicant stated that the occupants of the van attempted to put him into the van and that the applicant felt that if he was placed in the van he would be killed. The Tribunal asked the applicant how he was able to get away from these men. The applicant stated that when he was hit [he] heard a lady who had witnessed the incident scream and that he started screaming. The applicant stated that a passer-by called an ambulance, the men in the van fled, that the police showed up and the applicant told the police that these men hit him [and] he showed the police the wound, and the applicant claims that he was harassed by the police.
The Tribunal asked the applicant to relate the September 2011 incident. The applicant stated that he had been attending university and was returning home. The applicant stated that he felt somebody smash something over the back of his head and he did not see what it was. The applicant stated that as a consequence of the assault he fell to the floor and that when he was on the ground some men surrounded him and were kicking him. The applicant stated that he was dizzy, that he cut his arm and that these guys were armed with baseball bats and knives. The applicant stated that once again passer-by’s intervened and the applicant was taken to the hospital and the doctor that treated the applicant suggested he report the incident to the police. The applicant stated he had no faith that the police would intervene on his behalf.
The Tribunal, noting that the applicant had not studied in Colombia since his departure to Australia in 2012 and that he had not studied in Australia since April 2013, asked the applicant why he would be imputed with an adverse student profile if he returned to Colombia. The applicant stated that he was convinced that he would be harmed upon returning because of the ongoing threats to his family. The applicant stated that when he was in Colombia he referred threats that had been made to him to [a department] at the university. The applicant stated that it would be not safe for him to return to Colombia. The applicant stated that he had studied for [number] years at university but because of problems he had in Colombia was not able to continue his studies.
The Tribunal noted that more often than not a person involved in activism will keep their activism up when they relocate to another country. The Tribunal noted that the applicant had advised the Department of Immigration that he had not been involved in any activism in Australia or remotely in Colombia. The Tribunal noted that once again this raised questions about why the applicant would face a real chance of persecution for a Convention based reason if he returned to Colombia. The applicant was invited to comment on this. The applicant stated that he could not do anything in Australia. He could not write an article about the security situation in Colombia. The applicant stated the reason for this is that his mother was still in Colombia and he would not want to raise his profile which could have an adverse effect on his mother. The applicant stated that he had a lot of problems in Colombia prior to his departure.
The Tribunal noted that many refugee applicants who arrive in Australia will lodge an application for protection quite soon after arriving when they find out about the potential to do so. The Tribunal noted that the evidence before it indicated that the applicant was familiar with the immigration system in Australia and noted that the delay in the lodgement of his protection visa application suggested a lack of urgency. The Tribunal noted that the applicant prior to lodging the protection visa application made an application for a student visa which he later withdrew and he then made an application for a dependent visa as a member of the family unit with his father and his father’s partner. The Tribunal noted that it was only after that application was refused at merits review that the applicant lodged a protection visa application. The Tribunal indicated that this suggested that the applicant had been visa shopping prior to lodging the application for a protection visa and this diminished the well-foundedness of his fears. The applicant was invited to comment on this. The applicant stated that he thought that his absence from Colombia would be temporary. He advised that he thought that that there could be a way to return to Colombia in the future. The applicant stated that he cared very much about his family and was concerned about his mother given that she had been the recipient of ongoing threats directed at the applicant. The applicant stated that he knew from university that if a person applied for protection that their family in the home country can be targeted. The applicant stated that he was concerned about what may happen to his family in Colombia if he applied for protection in Australia. The applicant stated that he advised the Departmental officer at interview of these concerns.
The Tribunal took evidence from the applicant’s brother. The witness gave his name and date of birth and advised that he was currently [age] years old. The Tribunal asked the witness what year he came to Australia from Colombia and he advised that he arrived here [in] February 2016. The witness advised that he was sponsored to Australia by his father as a dependent member of his father and his father’s partner’s family unit and that he had ongoing temporary residence in Australia.
The Tribunal noted that the applicant came to Australia in 2012 and asked the witness why his brother came here. The witness advised that his brother came here because he had been persecuted in Colombia in 2011 and that he was hit and injured and that he had to hide in the family home. The Tribunal asked the witness whether he knew who was persecuting his brother and he advised that it was right-wing paramilitary groups that he believed had tried to kill his brother because of his activism.
The Tribunal noted that the applicant in his evidence advised that he attended both primary and secondary school in Colombia and then went on to university and asked the witness why his brother would have a fear of harm at the hands of right-wing paramilitary groups in Colombia. The witness advised that his brother was always a leader. He advised that his brother always thought about other people. He advised that one of the first campaigns that his brother was involved with was to try to organise food to be provided for children that were hungry in Colombia. He advised that his brother would give talks and organised [specific events] to raise money for the underprivileged in Colombia.
The Tribunal asked the witness why his brother would be targeted by right-wing paramilitary groups if he was attempting to help the poor. The witness stated that paramilitary groups in Colombia operated in such a way as to create fear amongst ordinary people and that they benefited from this. He advised that paramilitary groups were involved in randomly killing in Colombia.
The Tribunal asked the witness whether there was any further evidence that he wanted to provide. The witness stated that he had lived in Colombia until relocating to Australia in 2015. The witness stated that he had been a witness to his brother being attacked and this had both a psychological and physical effect on both he and his brother. The witness stated that there were members of left-wing groups that had disappeared in Colombia. The witness stated that he had clear memories of the threats that his mother would receive pertaining to his brother and that his brother had maintained a low profile in Colombia prior to his departure to Australia.
The Tribunal asked the witness whether he believed his brother was targeted because of his punk dress and his [haircut]. The witness stated that his brother was discriminated because of his student activism and was further discriminated because he had a [specific hairstyle] and he wore boots instead of shoes at school. The witness stated that when his brother was at university he started giving talks and organising [specific events]. The witness stated that punks were not crazy people they are linked to a way of thinking and living and that part of the punk subculture is to change the way that things are. The witness stated that paramilitary groups in Colombia were trying to spread fear all around Colombia and that they made people disappear. The witness stated that he did not believe that what happened to his brother in Colombia was because of the fact that he was a punk but more because of his way of thinking and the groups that he associated with in Colombia.
The Tribunal asked the witness whether he went to university and he advised that he used to study a [course] but was not able to complete the course because of what was happening to his family in Colombia. The witness stated that he had to stop attending his course because of the threats that his mother was receiving pertaining to his brother. The witness stated that he had to go places by taxi because of the fact that his brother had been targeted on an ongoing basis and his mother held fears for him. The witness stated that prior to coming to Australia in November 2015 he was close by his house and that he was watching some friends play football and that he was not participating because he was not good at football and a group came past on their motorbikes looking for the applicant. They stated that if they found the applicant they would kill him, the witness stated that he was attacked by one of these men and hit [and] they then fled on their motorbikes.
The Tribunal took evidence from the applicant’s father. The witness advised that he came to Australia in August 2012. He advised that he travelled to Australia on a [temporary] visa. The Tribunal asked the witness why he would leave his wife and [age]-year-old son and [age]-year-old son in Colombia and come to Australia [in] 2007. The witness stated that he and his former wife were not happy in their marriage and that he chose Australia as a place that he could [visit] to determine his future. He advised that Australia caught his attention. [Details deleted].
The Tribunal noted that it must have been a costly proposition to leave his wife and 2 dependent sons in Colombia for a year to [come to] Australia given the costs involved and asked the witness what provisions he made for his family. The witness stated that he applied for a bank loan and finance in Colombia and that he used the line of credit to facilitate his [stay] in Australia and to support his family left back in Colombia. The Tribunal asked the witness whether he owned a property in Colombia and he advised that he did not and that his ex-wife owned a property in Colombia. The Tribunal asked the witness whether his ex-wife still resided in this property and he advised that she does not live in the property currently and had relocated as a consequence of problems that she had experienced as a result of their sons activism in Colombia.
The Tribunal asked the witness how he managed to remain in Australia after his [visa] expired. The witness stated that he had been in a relationship, a de facto relationship [and] was sponsored as the partner of that person.
The Tribunal noted that statutory declarations had been provided to the Tribunal the day before the hearing which was a public holiday. The Tribunal noted that it would be having due consideration to the statutory declarations provided in any decision it made. The Tribunal asked the witness whether there was anything in the statutory declaration that he provided that he had not raised at the hearing and wanted to discuss. The witness stated that basically all of the information in the statutory declaration contained most of the information that was needed. The witness stated there were only two things that he could not express strongly enough and that is a fear of his son returning to Colombia because he runs 100% risk of being in danger. He advised that secondly because of the way his son dresses and his adherence to the punk subculture that he was targeted and attacked because of his appearance. He advised that his son had embraced punk a long time ago and that he had initially objected to his son dressing in this style. The witness stated that he believed that his son was committed to the punk subculture. He advised that he had heard from his former wife that the applicant was attacked in 2011.
The Tribunal asked the witness why his son delayed in making an application for protection given the fact that the witness clearly knew his way around the migration system in Australia having successfully obtained temporary residence, and why his son, given his fears in Colombia, didn’t lodge a protection visa application at the first available opportunity. The witness stated that firstly his son applied for a student visa in Colombia because of the risk that he was under in that country. He advised that if his son was to apply for refugee protection from Colombia there could be long delays in that application being processed and it was imperative that his son leave the country. The witness stated that from the time of his son being attacked in Colombia to the time that he came to Australia his life was in danger. He advised that following his arrival in Australia his son was studying in Australia and that because of the cultural differences between Colombia and Australia his son suffered the cultural effects of transitioning to Australian life. The witness stated that his son had always been an independent person and an independent free thinker. He advised that this was clearly expressed in the way that he dressed and wore his hair. The witness stated that he was unaware of the fact that his son had provided falsified financial statements with the student visa application. The witness stated that his son did not raise with him the fact that he was submitting fake documents to try to get a further student visa and that his desperation in doing this was linked to a fear of returning to Colombia. The witness stated there was a degree of ignorance involved in the delay in applying for a protection visa and that after his son failed to obtain a dependent visa as a member of his family unit he decided that it was important that his son get proper legal advice to address his situation. He advised that when he and his partner filled out the form to sponsor his son as a dependent member of their family unit they did it on their own without advice and filled out the form incorrectly which led to the refusal of the visa.
The witness stated that if his son went back to Colombia that paramilitary groups will do two things to silence him. They will make him disappear or they will kill him and that he will never be able to find his son’s body and bury him. The Tribunal asked the witness whether he knew his ex-wife was under threat in Colombia and he advised that his son had been the subject of threats in Colombia and this created psychological problems for his younger son and problems for his ex-wife. He advised that as a consequence of this he had to organise for his younger son to get out of Colombia and thus he sponsored him to Australia. The witness stated that his son’s punk style created additional pressure and threats in addition to his activism.
The Tribunal asked the visa applicant whether there was anything further that he wished to raise. He advised that his family in Colombia namely his mother and his brother prior to his brother’s departure had been the subject of threats including written threats directed at the applicant. The applicant stated that he had a fear that he would face persecution because of his student activism and because of his embracing of punk subculture if he was to return to Colombia.
The applicant’s representative was asked whether there was anything that she wished to add prior to the completion of the hearing. She advised that the applicant had given a consistent and credible account of his situation in Colombia. She advised that the applicant’s lodgement of a second student visa application with false financial documents was a desperate move to try to remain in Australia, and that rather than pursue the application once the documents were identified by the Department the applicant withdrew the application. She advised that with regard to the dependent visa application as a member of his father’s family unit that had the initial application form been correctly completed the applicants visa application would have been successful. She advised that at merits review the applicant acknowledged that he had recently found work to support his family unit in Australia because of financial difficulties and that he did not hesitate to disclose the truth from the decision-maker knowing that it may well lead to the Departmental decision being affirmed.
Independent Information
Colombia has been engaged in an ongoing civil war against the Revolutionary Armed Forces of Colombia (FARC – Fuerzas Armadas Revolucionarias de Colombia) and the National Liberation Army (ELN – Ejercito de Liberacion Nacional) since the 1960s. The Colombian conflict, which has killed more than 220,000 people and displaced six million, has over the years drawn in right-wing paramilitaries, drug traffickers and several leftist rebel groups, of which the FARC is the oldest and largest remaining.
According to the US Department of State (USDOS) in 2014, FARC and ELN committed numerous abuses, including: political killings; killings of members of the public security forces and local officials; widespread use of land mines and improvised explosive devices (IEDs); kidnappings and forced disappearances; sexual and gender-based violence; subornation and intimidation of judges, prosecutors, and witnesses; infringement on citizens’ privacy rights; restrictions on freedom of movement; widespread recruitment and use of child soldiers; attacks against human rights activists; and killings, harassment, and intimidation of teachers and trade unionists.[1]
[1] US Department of State 2014, Country Reports on Human Rights Practices 2014 – Colombia, relocation
137. Whilst the applicant’s previous problems in Colombia have been essentially confined to Bogota, the Tribunal accepts that the applicant would agitate for social justice and human rights wherever he were to be living in Colombia. The Tribunal is also satisfied from the country information set out earlier that, given his profile, the applicant’s persecution risk is prevalent throughout Colombia. The Tribunal has also placed weight on the guidance provided in the UNHRC Eligibility Guidelines that internal relocation is ‘generally not available in Colombia’. In the circumstances, the Tribunal is satisfied that internal relocation to avoid his feared risk of harm is not available to the applicant in this case.
Safe third country
138. There is no evidence before the Tribunal that the applicant has a right to enter and reside in any third country for the purposes of s 36(3) of the Act and, accordingly, the Tribunal finds that he does not have any such right.
CONCLUSIONS
139. The Tribunal is satisfied that the applicant is a person to whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s.36(2)(a) for a protection visa.
DECISION
140. The Tribunal remits the matter for reconsideration with the following directions:
·that the applicant satisfies s.36(2)(a) of the Migration Act.
John Cipolla
Senior Member

21

[2016] AATA 4740

23 November 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice