1502842 (Refugee)

1502842 (Refugee) [2017] AATA 715 (7 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1502842
COUNTRY OF REFERENCE:                  Peru
MEMBER:Meena Sripathy
DATE:7 April 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 07 April 2017 at 12:10pm
CATCHWORDS
Refugee – Protection visa – Peru – Political opinion – Si Cumple political party – Political activist – Land resumption – Legal dispute over land – Threats to family – Internal relocation

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R(1)(b), 499
Migration Regulations 1994 Schedule 2, r 1.12
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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants’ who claim to be citizens of Peru, applied for the visas [in] June 2013 and the delegate refused to grant the visas [in] February 2015.
The issues in this review are whether either or both of the applicants have a well-founded fear of persecution in Peru for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Peru there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The first named applicant (the applicant) is [an age] year old man from [Region 1], Peru. He is in a de facto relationship with the second named applicant, who is [age] years old. The applicants have an [age] year old daughter who resides in Peru. The first named applicant also has [specified relatives] in Peru. The applicants provided several addresses at which they resided in Peru prior to coming to Australia in 2009, including 2 addresses in [Town 1 in] [Region 1] – one from 2002-2005, and the other from May – December 2005 and again from July- September 2009; and an address in Lima from January 2006 to June 2009. The applicant is educated to post secondary level, and worked as [an occupation 1] and in [an industry] prior to coming to Australia in 2009.
·From the beginning of 2003 he started his political life supporting his [Relative A], [named], who was the [Office Bearer] of [Town 2] until March 2005. He was supporting him in his public relationships with the residents of the district as [position 1], since he could not be an employee of the municipality due to his family relationship with the [Office Bearer].
·From August 2006 until the last week of November 2006 he travelled to support the political movement [Movement 1] which is a political movement affiliated to the political party “Si Cumple” led by Keiko Fujimori. He was in charge of [specified] support in the villages of the district leading the youth group to support the [Office Bearer].
·Despite his efforts and dedication in support of the residents of the district, the leaders of the other political parties perceived him as an enemy due to his good performance in the political campaign.
·The political movement that he supported did not win the elections. The elected candidate was [Candidate A] from [Party 2] for a period of four years from [2007] until [2010].
·In preparation for the next political election for [Office Bearer] he again supported the [Movement 1] candidate. During the political campaign the candidate for the [Party 2] political party attacked him personally as an ultra right wing political and capitalist person.
·He started to received threatening phone calls and insults on the street from unknown people and on [a date in] July 2009 as he was returning from [Town 1] from a political meeting he was stopped by a group of men on their motorbikes, they asked for his name and when he did not answer one of them called him by name and told him they had a message for him to leave the campaign or face the consequences. He believes those people were members of the peasants patrols (‘rondas campesinas’) who are connected with emerging revolutionary group MRTA (Revolucionary Movement Tupac Amaru).
·As part of his and his family’s assets he is the owner of land in the urban and rural area of the [district] of [Town 2]. He has been working in the area of [service business] as well as in [products] projects. He was planning to do business, [for services] in [Town 2], but due to the threats, friction and political envy those projects were frustrated.
·He decided to come to Australia with his partner as a change. They arrived in September 2009. His partner was studying and he obtained work using his experience in [products].
·Meanwhile in Peru taking advantage of the applicant’s stay in Australia the [Office Bearer] of [Town 2], [Candidate A] organised an invasion of his [business property] in June 2010. In July 2010 legal documents were provided to the judiciary and the municipality attorney’s office to prove the applicant’s right of possession over the land. Despite this the [Office Bearer] moved [number] families onto the land arguing that the property belongs now to the local government of [Town 2]. The applicant’s mother and lawyers continue to dispute this invasion; in January 2011 the legal process of eviction of those families from their land was continuing but is still pending the final result to date.
·In October 2011 the applicant returned to Peru because of this situation and went to [Town 2] with the intention of dealing with this matter but he encountered problems. He claims his [family members] received threats if he returned to Peru to deal with the land matter and for this reason his mother did not want him to stay in Peru and to save his life as well as their lives he returned back to Australia by [a date in] November 2011.
·[In] January 2012 another part of the land was invaded. It was a political strategy because the [Office Bearer] [Candidate A] had finished his period and the new candidate Mr [Candidate B] used false documents to offer the land to the previous and new families. In this way, [number] families invaded his land.
·In this way the [Office Bearers] of [Town 2] have used the applicant’s land as a political weapon to win the elections, offering poor people his land to build their houses and threatening the applicant if he returns to Peru to resolve his land disputes.
·[In] August 2012 because of the pressure caused by the situation for his family the applicant’s partner went to Peru to help solve the problem, but by this time eviction of the applicant from his land had been completed and the [Office Bearer] twisted the action using the media against the applicant and his family accusing them of being corrupt. During her visit to Peru the applicant’s partner and his daughter had to hide and move from one location to another.
·The applicant claims that to protect his life as well as that of his partner, [and other family members] he cannot go back to Peru.
·In October 2012 the applicant’s employer offered to sponsor him for a work visa. The application was lodged with the Department of immigration in December 2012, but was rejected in January 2013. They applied again for another student visa but it was invalid so they were trapped because they cannot go back to Peru. Then a friend advised them about the protection visa and this is how they came to apply for a protection visa.
[In] October 2013 the applicant’s migration agent submitted a number of documents in support of the above claims. These documents are listed in the delegate’s decision record and are included in the Department’s file at folios 91-154.
Department interview
The applicants attended an interview with a departmental officer [in] October 2013 and the Tribunal has listened to the recording of that interview. They reiterated and expanded on their claims. Details of information provided at the interview are included in the delegate’s decision statement.
Following the interview the applicant’s representative provided a submission and further supporting documents, which are included in the Department’s file.
Evidence to the Tribunal
On 26 July 2016 the Tribunal received a submission from the applicants’ representative enclosing a translated letter from the first named review applicant addressing issues arising in the delegate’s decision and supporting information.
·In his submission the review applicant disputes the delegate’s finding that the occupation of his land was not on the basis of his political orientation. He argues that the action of [Candidate B] was a political strategy by the [Party 2] which signed the documents transferring his land to the ownership of the [Office Bearer’s] office. He argues this was a move by the [Party 2] against the applicant’s [Movement 1] Party, which is the party affiliation of his family for many years. The applicant claims that he has been a victim of persecution by the [Party 2] and this is clearly established in the documents submitted to the Department.
·The applicant provides submissions and information to argue that the [Office Bearer] of [Town 2] and [Representative] for [their region] are affiliated with the [Party 2], and these are political opponents of his [Movement 1] party.
·He claims he cannot return to Peru while those individuals are in power in his area, which is at this time until 2018 as they will not allow him to taint their names in the national media by pursuing his land case against them,
The applicants appeared before the Tribunal on 1 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages. The applicants were represented in relation to the review by their registered migration agent.
Evidence from first named review applicant (the applicant)
The applicant confirmed his address, education and employment history and family composition as provided in the application. The first address provided in [Town 2] was his father’s home, where he grew up and where his mother and daughter presently live. He moved from this address to another address in [Town 2] with his partner and daughter, which is a property owned by his mother in law, who is also still present at this address. He confirmed he lived in Lima from 2005 until mid June 2009, when he was studying and subsequently working. This was a property owned by his partner’s family. They lived there with her grandparents and various other relatives of hers. The applicant explained that during this period he regularly travelled back and forth between [Town 2] and Lima as he was actively engaged in political activities on behalf of his party and his study and work schedule permitted this during this period. His partner and daughter also travelled back and forth between [Town 2] and Lima, although they mostly stayed in [Town 2] with her parents. In this period his main work was his political work. He was studying and working only as a means to financially support his family but his main aim was to make a political career for himself. The Tribunal questioned the applicant about the distance between [Town 2] and Lima and how he was able to travel regularly between these places while also studying and working and supporting a young family. He said it was a [time] flight between these two places, or [time] by car. He said he did the trip regularly, sometimes several times a month, because of his political work.
The Tribunal asked the applicant why he came to Australia in 2009. He said he came for his wife’s study of English and because of problems he was having in Peru. It was an emergency decision and they initially planned to only stay temporarily, which is why they left their daughter behind. The applicant was working in the political campaign of his [Relative A]. He was in charge of organising the youth. They provided support such as vocation and development projects. For example they had a project concerning a [facility] to bring projects to the people. His role was unpaid volunteer work. The party was the [Local unit of Movement 1] which is part of the [Movement 1]. He was a youth delegate. He joined the party in 2003 and worked on campaigns in 2006 for the [Movement 1] candidate. Because of his political work, which was at a peak in 2009, he received a threat from 5 people.
He had previously had 3 threats by phone but he didn’t take it seriously. In July 2009, while coming back by motorcycle, he was stopped and they threatened him to leave politics because he was a danger to his rivals and he had to leave the country. He described that they stood in the middle of the freeway and forced him to stop and they had weapons. They threatened him and also his family. They wanted him out of Peru because he was representative of a powerful party. The Tribunal asked the applicant if he knew who these people who were threatening him were. He said at the beginning he didn’t know but later he found out.
The Tribunal put to the applicant that he did not describe the incident in the same way in his written claims, where he said a group of men stopped their motor bikes and asked his name and then threatened him. He did not mention in his written claims any weapons. In response the applicant said that threats in his country are different to threats in Australia and there would be weapons involved. He is adding details to his original claims, and clarifying what happened to him.
The Tribunal asked why he mentioned in his written claims that these people were associated with the MRTA group – on what basis did he believe this. In response the applicant said the MRTA created the ‘rondas campesinas’ to take justice into their hands. He came to know this later, but in the beginning he was not sure.
The Tribunal asked the applicant if he complained to police about this incident. He said he contacted the police about the phone threats because sometimes it is about extortion. He didn’t tell police when he was physically stopped because he had to leave the country immediately and quietly, and these were the conditions imposed on him.
The Tribunal queried why he would be threatened in July 2009, long after the election and when his party did not win, and there was no election campaign going on. He said they were working on their campaign still as they came second in the previous election and they had a lot of support. They were hoping to win the following election in October 2010.
The Tribunal asked the applicant why he did not consider leaving his area and going to Lima instead of leaving the country. He said in his country when you have problems where you live, it ripples and the problems follow you wherever you go. They wanted him to leave the country and so he left. The Tribunal put to him that it may not accept from what he has described that he was being forced to leave the country as opposed to just the local competition. He said he was an aspiring leader and that is why they were coming after him. When asked if he was seeking the candidature of his party, the applicant confirmed he was not. The candidature went to [Candidate C] who lost again at the next election. When asked if anyone went after him, the applicant said he does not know.
The Tribunal put to the applicant that independent information it has before it indicates the MRTA is not particularly active in his area and it may not accept his claims that they were involved in threatening him to leave the country. In response he said the people who used to be involved in the MRTA are now ‘rondas campesinas’ and they were behind the threats made against him. He was the most active in the party at that time and was an aspiring leader and because he was young he was a long term threat to them. When pressed again about who ‘they” are the applicant said they are the ‘leftists’ who are against people like him who are ‘rightists’. He explained that [Candidate B] of the [Party 2] won the election in 2011 and again in 2014, and is in power now until 2018.
The Tribunal put to the applicant that given, on his own evidence, that the [Party 2] has retained power in the past two elections, since 2011, and his party has lost the last 3 elections, on what basis does he believe he would be a threat to these people now on the basis of his political activity in the period 2006-2009 given the passage of over 7 years and three elections later. In response the applicant stated that the reason his party lost the elections was because he left Peru. He was very strong and the people accepted him. They only lost the elections in 2010 and 2011 by a small number of votes. He claimed that they expropriated his lands as a political strategy to make him unpopular to people. They had two purposes for invading his lands – one was to turn people against him and secondly to buy votes.
In 2009 he came to Australia initially as a temporary measure with a view to returning after things cooled down and to resume his social, political and business work. But then they invaded his land as a way to make sure he did not return.
The Tribunal asked the applicant why he left his daughter behind if he feared for his safety in 2009. He said he had to move silently and quickly at that time and could not with his daughter, and she had to start her study. He left quickly as an emergency measure. At the time he did not think the threats could be carried out and he would be able to return. It was only after his mother started to get threats, and his lands were invaded that things started to get worse. He then clarified that his mother was receiving threats from 2009 until now. They have been against him and his family continuously.
The Tribunal asked the applicant why he returned to Peru in October 2011. He said at that time there had only been one invasion of one property. He returned to try and solve the problem. He held meetings to continue with his political work. But it did not work out because they had an idea he would return to his political work and so he came back to Australia.
In January 2012 they invaded his property again. A large number of families had taken possession of lands owned by him and his mother under the protection of the [Office Bearer] [Candidate B]. The applicant confirmed that his mother had commenced legal proceedings in relation to this matter in 2010. There has been no outcome in the matter as at this date. He is not sure what outcome he will get from the legal proceedings.
The Tribunal put to the applicant that even if it were to accept that there may have been some political motivation for what happened with his land, it still may not accept that he would be at risk of harm now. In response he explained that they would still have problems with him and they would be afraid that he could employ as a strategy donating the land to gain the votes. He claims there is still an interest in keeping him away from the country.
The Tribunal noted that throughout this time, his daughter has remained with his mother, he has been able to return in 2011 and his partner went back in 2012 and this may lead the Tribunal to not be satisfied there is a real chance or real risk he will face serious or substantial harm. In response he said that his mother and daughter have police surveillance, the risks are to him personally not to them, and so the danger is only when he returns and returns to do political work. He has ambitions beyond just the local level to the regional level also.

The applicant submitted [Mr A] is now in the national government and is close to the new President. When asked by the Tribunal on what basis he is claiming that [Mr A] is close to the new President, the applicant said he will submit information about this.
The Tribunal put to the applicant that he has raised a new claim at this hearing regarding his political profile which was not articulated previously in his written application or interview with the delegate. In response he explained that he was doing work to help the leader of his party and for his own political ambitions. He fears harm form people who are against Fujimoris like him.
The Tribunal also put to him that other matters which cause it concern are the fact he left his daughter in Peru, his return to Peru in 2011, and the delay in lodging his application. All of these matters suggest he was not in such fear for his life. It was also put to him that at the Department interview when asked about his return to Peru in 2011 he mentioned business activities. He agreed and said he still has business interests and [service] business there he is still involved in [service projects]. Because he is not there he has given this to [another business] to do this on his behalf. Regarding the delay in lodging the application, he said he did not know about making a protection visa application initially. When he found out about this option he lodged the application.
Evidence from review applicant wife
The applicant wife confirmed her addresses in Peru prior to coming to Australia in 2009. She lived in Lima from when she was young, attended high school there and went back and forth between Lima and [Town 2] from the time that she met the first named applicant, her husband. They were in Lima for one month prior to coming to Australia in 2009. In Lima she lived at a property owned by her parents, which is still in their ownership.
The Tribunal asked the applicant wife why she came to Australia. They came because of the incident that happened to her husband. They thought the issue would go away after a while. She also came to study English. They did not originally plan to stay here permanently. They had left their daughter there and did not know anyone here and did not know the language.
The Tribunal asked the applicant wife when she decided they could not go back. She said it was after the first invasion of their property, when her husband went back to try to resolve the issue in 2011.
The Tribunal asked about her return to Peru in 2012. She said she returned to see her daughter and mother, but then the eviction took place and it became difficult for her to stay. She said no one knew who she was when she turned up at the place of the eviction. The Tribunal asked her why no one would know her if they were such well known people. She said she doesn’t know why, maybe it was because they had been away between 2009 and 2012. She described the incident as aggressive and violent. Police were injured and sticks were used. Neither she nor her mother in law were injured as they left before the violence broke out. The eviction was not able to be carried out. She stayed for 2 days after this incident, then took her daughter to [another town] where she stayed for one month. Then she left her daughter in [Town 2] and returned to Australia.
The Tribunal put to the applicant wife why she would leave her daughter in [Town 2] if they are in fear for their lives there. She said she wanted to bring her to Australia and they had explored being sponsored for a work visa, but in the meantime her husband’s mother had obtained guarantees from the police for themselves so she left her with them. She is taken care of by her husband’s mother. The Tribunal asked why she did not take her daughter to Lima and leave her there. She said she does not have anyone to look after her there, and also Peru is a small country and they could be seen there and be in danger.
The Tribunal asked the applicants why they could not relocate to Lima if they had problems in [Town 2]. The applicant wife responded that [Town 2] is a well known place in Peru and even the President has recognised the ‘good’ things that were done there, noting the provision of land by the [Office Bearer] to people. Connections are very important in Peru and they are on the wrong side of politics at this time.
Following the hearing, on 19 August 2016, the applicants submitted further submissions and evidence in support of their application:
·A submission from their representative addressing why the applicants are unable to relocate to Lima or another part of Peru or any other Latin American country and his claims on the basis of his political opinion.
·A letter from the applicant husband reiterating his claims and seeking to clarify issues that were raised at the hearing. The applicant states he cannot return to Peru because of persecution he faced there. He cannot relocate to Lima because active and powerful members of the [Party 2] work closely with the current government of President Kuczynski from the Party Peranos Por el Cambio. Those who want him out of Peru will use the killing services of the rondas campesinas to kill him in any part of Peru including Lima. He cannot relocate to anywhere in Latin America because most countries are facing social and political unsteadiness and the rondas campesinas can also easily cross the borders to locate him. The applicant restates that he has been involved in politics since he was a young man working for the political movement [Movement 1] in [Town 2], doing logistics for young people in the area to support the movement as well as the major political party Fuerza Popular – known as Fujimorismo. He was actively involved in campaigns for President of the Republic and [Office Bearers] of [their] region and [Town 2]. The applicant states from outside Peru he has continued to be in contact with politicians of his movement who are people involved in Fuerza Popular and gives ideas for strategies and decisions of the Party and he and his family are still financially supporting the Party. He had aspirations to be a leader of his region and plans to one day be a candidate for [various offices] but these ambitions were broken down for others who were less scrupulous and who used his land as a weapon to win voters. The applicant claims that the [Party 2] led by [Mr A] and in [Town 2] by [Candidate B], had political motivations when they appropriated his land. He claims the [Office Bearer] used his power to make false documents to take his land and his life and that of his family’s were threatened. He indicates that he provides evidence of the political connections of his persecutors [Candidate B] who is highly connected by politicians in Peru and who will prevent him getting his land back and taking the name of the [Party 2] to the media. He indicates he has evidence of the status of the lawsuit his mother has initiated regarding the land dispute which indicates that ownership documents have not been provided, which the applicant disputes and which confirms that the present [Office Bearer] of [Town 2] is abusing his power and the applicant is unable to obtain protection in Peru and his life is in danger there.
·Letter from Popular Strength Party confirming the applicant husband’s membership and role in the party since [year].
·Evidence of [a business] handling the [specified projects] owned by the applicant in [Town 2].
·Legal documents relating to the civil proceedings initiated by the applicant’s mother evidencing the exhaustion of administrative channels in this matter. Resolution no [number] dated [in August] 2016, states that the action taker has not presented documents of vital importance – which the applicant disputes. The applicant states that this demonstrates the applicant is unable to obtain protection from the courts in Peru.
·[Social media] pages of [Mr A] indicating his connections with the current power in Peru.
·Various articles regarding the political situation in Peru, including Choosing a New Broom, The Economist, 7 April 016; Freedom in the World 2016 – Peru, Freedom House, 12 August 2016; Latin America 2013: Political Outlook, Cynthia Arnson 3 January 2013.
In November 2016, the Tribunal was provided information purportedly relevant to this matter by the Department. The material was subject to a Notification under s438 issued by the Department regarding disclosure of the information. The notification advised that the information was given to the Department in confidence and in that context the source has an expectation of anonymity and the source or any information that would have the potential to identify the source should not be disclosed.
The Tribunal wrote to the applicants on 17 February 2017 to advise them of the notification issued by the Department. The Tribunal also in this letter put to them the substance of the information and its relevance to the application for review and invited their comments or response. In essence the Tribunal put to the applicants that an allegation was received that their protection claims were false and that the applicant was a businessman running a [service] business in his hometown.
A response was provided to the Tribunal on 2 March 2017. In their response, the applicants confirm that they have declared throughout the process of their application that the first named applicant and his family has a business in [services] and that, since being in Australia they have instructed a [different business] in [Town 2] to [undertake some projects] on their behalf. The Tribunal is referred to the evidence provided previously from [a named business] confirming their instructions from the first named applicant to [conduct his projects]. It is submitted that 40% of the applicant’s [large projects] have been [completed]. The applicant restates his claims that he was subject to political persecution and his life was threatened in Peru and this caused him to flee to Australia. He restates that since coming to Australia his lands were illegally seized by the [Office Bearer] of [Town 2] and given to the community to secure votes for him. The applicant restates his claim that his family in Peru are safe only because he is not in the country and that his life is and could be in danger if he were to return to Peru. The response refers the Tribunal to previous submissions made to the Department and Tribunal.
In relation to the allegation that his protection claims were false, the applicant’s representative submits that the applicants were concerned about how these allegations could be made as only close friends of theirs knew about their protection visa application. They are now worried that they may have an enemy in Australia and are concerned about the implication for their family and daughter in Peru of someone knowing about their protection application here and they now feel unsafe even here. The applicants argue that if their claims are not truthful, they would not be separated from their daughter since 2012, and this is causing them a lot of suffering. It is submitted that the only reason the applicant wife has not returned to her daughter is her fear that her husband would follow her and the whole family would face harm. They would also not be leaving the applicant husband’s mother to deal by herself with the problems with the land. It is submitted his family is only safe because he is not there. The response refers the Tribunal to previous submissions made to the Department and Tribunal.
FINDINGS AND REASONS
The Tribunal has considered all the evidence before it, including the written claims and submissions, oral evidence to the delegate and at hearing before the Tribunal, documents submitted in support of the application and relevant independent information referred to in the discussion below.
In respect of the material covered by the notification under s438, the Tribunal wrote to the applicants disclosing the notification and put the gist of the information to them for comment. The Tribunal has considered their submissions and response, and has determined to give the information no weight, given that the allegations were made by an anonymous source; are based on no probative material; and as the applicants themselves have pointed out, the information that the applicant is a businessman running a [service] business is conceded and has been provided directly by the applicant from the beginning of the application.
Nationality
On the basis of the applicants’ oral claims and passport, and in the absence of any evidence or information to the contrary, the Tribunal accepts the applicants are citizens of Peru and assesses their claims against Peru. It finds that Peru is the country of nationality for the purpose of assessing their claims against the refugee criteria, and it is the receiving country for the purposes of assessing their claims against the complementary protection criteria.
The applicant claims to fear harm from political opponents in [Party 2] who are in power in his home town of [Town 2]. He claims that his political opponents threatened him in the past and since he has been in Australia his lands have been wrongfully and illegally taken possession of and given over to the community to buy votes for the incumbent [Office Bearer]. He claims he received several threatening phone calls and on [a date in] July 2009 he was stopped and threatened on the street by an unknown group of men, whom he believes are associated with the rondas campesinas. He claims the usurpation of his lands was an action targeted at him because of his political ambitions in his home town. He is fearful of return to Peru because he still has political aspirations and he is fearful his political opponents will harm him or his family if he returns and threatens their power.
Credibility and factual findings
The applicant has given details of his claims in writing in his original application, in oral evidence to the delegate and in written submissions and oral evidence to the Tribunal. For the most part he has maintained the substance of his claims, although as discussed further below, the Tribunal considers that he has exaggerated and embellished his claims of the level of political activity and his political aspirations to strengthen his protection claims in his evidence to the Tribunal. The Tribunal makes specific findings on the claims below.
Political affiliation
On the basis of his detailed and consistent evidence about his political activities and affiliations the Tribunal is prepared to accept that the applicant was and is a supporter of the political movement in his home town known as [Movement 1] which is affiliated with the Si Cumple political party of Keiko Fujimori and that he considers himself an adherent of the Fujimorismo political ideology. It accepts that he supported his [Relative A] when he was [Office Bearer] from 2003 to 2005. It accepts that he was involved in the municipal [Office Bearer] election campaigns in 2006 and 2009 on behalf of his political party [Movement 1].
On the basis of the applicant’s evidence and independent information submitted by his representative, the Tribunal accepts that his party was unsuccessful in the 2007 and 2010 elections for [Office Bearer] of [Town 2] that he was involved in and that candidates from different political parties won those elections: [Candidate A] from [Party 1] in 2007 and [Candidate B] from the [Party 2] in 2010. It accepts that [Candidate B] of the [Party 2] was re-elected [Office Bearer] again in elections held in October 2014 and that he is presently in power.
Threats against him in 2009
The applicant claims that because of his political work in these campaigns he made enemies with his political opponents and as a result he received several threatening phone calls and in July 2009 he was stopped on the road by a group of armed men and told to leave politics and the country. The Tribunal has some doubts about the veracity of these claims, for a number of reasons.
Firstly, he significantly failed to mention in his written claims that the individuals who accosted him were armed, but added this detail in his oral evidence to the delegate and Tribunal. When this discrepancy was put to him, he said his written claims were just a summary, and he was now giving more detail. The Tribunal has some doubts about this explanation. If the men were in fact armed, it considers this is a detail he would have mentioned at the outset. Rather, his failure to mention that the men were armed in his original written claims suggests to the Tribunal that he was embellishing the claims by adding this detail in his later evidence. Secondly, while he claims the men who threatened him were rondas campesinas and associated with the MRTA he provided no evidence to support this. When asked more about this at hearing, he confirmed that he did not know who the men were and only ‘believed’ they may be members of the rondas campesinas. However, independent information before the Tribunal indicates that Tupac Amaru Revolutionary Movement (in Spanish Movimiento Revolucionario Tupac Amaru, or MRTA is currently inactive. There are no recent reports found of the MRTA instigating or being involved in violent activities since the late 1990s[1] and the Tribunal considers the applicant may have only included this detail to exaggerate or embellish his claim. Thirdly, the Tribunal is troubled by the fact that the applicant did not report the incident or the threats to the police, but rather fled to Lima and from there to Australia following this one incident, leaving his daughter behind in the place where he allegedly faced a threat. The Tribunal finds this difficult to believe.
[1] ‘(Tupac Amaru Revolutionary Movement (MRTA))’ undated, National Consortium for the Study of Terrorism and Responses to Terrorism, - Accessed 4 November 2011
The Tribunal observes that the applicant’s candidate from the [Movement 1] Party was unsuccessful in both elections that he was involved campaigning for in 2006 and 2009. In this context the Tribunal finds it difficult to accept that he would be considered such a political threat to rival parties as claimed. It also observes that he claims to have fled [Town 2] for Lima following the July incident, but did not arrive in Australia until September of that year, and has not claimed to have suffered any other incidents in that period.
All of these reasons lead the Tribunal to doubt the credibility of the applicant’s claim that he was threatened by phone or in person because of his political activities in the 2009 [Office Bearer] election campaign and for these reasons it does not accept this claim.
Consequently, it does not accept that he fled [Town 2] or Peru for this reason or that he faces a real chance or real risk of harm upon return to Peru in the reasonably foreseeable future on this basis.
Threats received by his mother
The applicant claims that his mother has been receiving threats directed at him continuously since 2009. However he provided no other details or evidence about these threats. He has not articulated what form they have been in, who they are from, and has made no claims of harm directed at her or his daughter as a result of the threats. When asked why, if his mother has received threats, he has continued to leave his young daughter with his mother, he referred to them having police surveillance and the risks being to him personally. He has made no claims of threats or harm directly to his mother or daughter.
On the material before it, the Tribunal does not accept that the applicant’s mother has received threats continuously since 2009 against him and his family.
Political aspirations

The Tribunal also does not accept that the applicant had aspirations to be a political leader in his region and intends to pursue these ambitions if he returned to Peru in future and is at risk of harm in future for this reason. The Tribunal observes that the applicant’s claims regarding his political aspirations have changed in the course of the application. In his original written application, he mentioned being involved in [specified] support and leading youth groups in the campaign of [Candidate C]. In his department interview he did not elaborate in any way on the significance of his political activities in the campaigns or his claimed political aspirations. He stated that his issues were because he was defending his land.
It appears to the Tribunal that it was only after the delegate concluded that the occupation of his land was not related to his political orientation, that he has asserted in his evidence to the Tribunal he was targeted because he was ‘the most active member’ of the party and an ‘aspiring leader’. When asked if anyone went after the party’s candidate, [Candidate C] he said he did not know. When asked if he had sought to be his party’s candidate at the election, he said he had not.
The Tribunal has considered the “Official Certificate” dated [in] August 2016 from [name] of Secretary General of Fueza Popular attesting to the applicant’s involvement and activity in the party in his region since [year]. The Tribunal accepts that this document generally supports that he has been affiliated with, and a supporter of the local Fujimorismo party, which the Tribunal already accepts. Beyond this general confirmation of his affiliation, the letter extracts information about his involvement, including involvement since his departure from the country, that appears to be provided by him, and only asserts that he has ‘always stated and continues stating his political wishes and projection to be a senior leader in his region’. No other evidence of specific logistical or financial support given in the past or since departing Peru in 2009, nor any other evidence of his ongoing political ambitions has been provided. Above the Tribunal has rejected his claim that he was subjected to phone or in person threats to cease campaigning and leave politics. Consequently, it does not accept that he fled Peru in September 2009 because of these threats. The Tribunal considers the applicant’s conduct in leaving [Town 2] and the country in 2009 is not consistent with his claimed political aspirations or commitment.
Having considered the material before it, the Tribunal is of the view that the applicant has exaggerated his position and significance in the Party to strengthen his protection claims. It does not accept that he was the most active person in the party in 2009 as claimed and it does not accept his claims that he was or is an aspiring political leader.
Land issues
The applicant claims to be the owner of land in his home area of [Town 2]. In support of this claim he has submitted various documents certifying ownership of specific parcels of land. He also claims that some of his land was occupied without his permission after he left Peru in 2010 and again in January 2012. He claims that the present [Office Bearer] of [Town 2], [Candidate B] is behind the illegal occupation of his land. The applicant has commenced legal action to assert his legal ownership of these lands, and has provided certain documentation about these proceedings. The applicant claims he is being targeted for illegal occupation of his land because of his political views and affiliations and that the [Office Bearer’s] involvement in the land issue is motivated for political purposes to encourage villagers to vote for him by giving them the applicant’s land.
Having carefully considered the applicant’s claims and documentation provided in support, it accepts that he owns lands in [Town 2]. It accepts that he believes certain of his lands have been the subject of invasions and occupations in July 2010 and again in January 2012, that he considers to be unlawful. It accepts that he has initiated legal proceedings against the [representatives of Town 2] in respect of these actions. Some documents and partial translations have been provided to the Department and Tribunal in support of these claims, and the Tribunal’s findings above are made on the basis of this evidence. However, the Tribunal considers it is unable to make more specific findings about the status of the proceedings regarding the land in question solely on the basis of the documents and translations submitted, as they do not give a complete picture of the case. As conceded by the applicant himself, in his most recent submissions, resolution No. [number] of the [named court] made on [a date in] August 2016, is somewhat confusing in its terms. It is not clear to the Tribunal, on the basis of documents and partial translations submitted, what is the full story of the legal proceedings the applicant is involved in or its final outcome, if in fact it is finalised. However, sufficiently for present purposes, the Tribunal accepts that the evidence presented demonstrates that the applicant asserts wrongful usurpation of his lands and has had access to, and has utilised, a legal process for resolution of his dispute with the [town representatives], even if he is not ultimately satisfied with the outcome.
In respect of the incident he claims occurred in August 2012, the Tribunal has considered the evidence of an incident of an attempted ‘eviction’ that turned violent which took place in August 2012, allegedly on the lands he claims had been wrongfully usurped, which occurred while the applicant wife was in Peru. She told the Tribunal she attended this incident. Her evidence to the Tribunal was that was not recognised as the partner of the applicant when she attended. She told the Tribunal that neither she and the applicant’s mother were injures as they left before the violence broke out. She stayed in Peru for another month after this incident, leaving her daughter in [Town 2] with the applicant’s mother when she left.
The applicant also submitted to the Department a transcript of footage and interviews covering the incident which the Tribunal has considered. On the basis of this evidence and the documents submitted in relation to legal proceedings referred to above, the Tribunal accepts that an attempted eviction of residents on lands contested by the applicant’s family took place in August 2012. The footage and transcript indicate that [Office Bearer] [Candidate B] attended the incident and asserted the [town’s] ownership of the land. However, in the Tribunal’s view, the footage shows that the eviction was initiated by the applicant’s mother purportedly enforcing a legal order obtained through her legal proceedings. While it is not clear at whose initiation the police or military were involved, it is clear that the violence and aggression as depicted in the evidence occurred between the police and residents of the land, who resisted the eviction and actions being taken (including destruction of property) for this purpose.
The applicant’s wife, in her evidence, stated that she and her mother in law left before the violence started. The applicant has made no claims that his mother has suffered any incident or harm since this event in August 2012. The applicant’s wife left their daughter with his mother when she left Peru one month later. For these reasons, in the Tribunal’s view the evidence of the incident in August 2012 supports the applicant’s claims that he has an ongoing dispute with the [town’s representatives] over ownership of land, which the Tribunal has already accepted, but does not support that the applicant or his family are at risk of future harm from the disputed land issue.
Claim that land usurpation was politically targeted against the applicant
The applicant claims that his lands were wrongfully usurped in order to affect his political standing and power in the community and as such he is a victim of political persecution by the [Party 2]. He claims his life is in danger from his political opponents if he returns to Peru and that his political opponents have sought to prevent his return by taking his land. The Tribunal is not satisfied that the evidence before it supports this claim. While the Tribunal is prepared to accept that the [town’s representatives] and the incumbent and previous [Office Bearer] may have some involvement in issues he has had with his claimed lands in recent years, on the basis of their named involvement in the legal proceedings initiated by him, and the video footage and transcript provided in respect of the August 2012 incident, there is no other evidence before the Tribunal which links his land dispute with a broader political motivation on the part of the incumbent or previous [Office Bearer], the [Party 2] or the [town’s representatives].
While the Tribunal is prepared to accept (on the footage provided relating to the August 2012 incident) that the [Office Bearer] of [Town 2], [Candidate B] disputes the applicant (or his family’s) ownership of the land, and asserts the Municipality as the rightful owner; the Tribunal finds the evidence does not support that the [Office Bearer] was involved in giving away his land in 2012 as a political strategy to secure votes. While it accepts that this may be an understandable perception on the part of the applicant, given his political opposition to the incumbent administration, there is no specific evidence on which it is based and the Tribunal considers it is entirely speculative. The Tribunal also does not accept that the previous [Office Bearer], [Candidate A] of the [Party 2] was involved in taking his land in July 2010, as he has also not provided any specific evidence to substantiate this claim. The applicant has sought to assert his claimed ownership of the land in the legal proceedings he has initiated since 2010, however it appears he has to date been unsuccessful in obtaining a favourable outcome. The attempted eviction in August 2012 appeared to be a result of these proceedings, but this too did not result in a successful outcome.
The Tribunal considers it is not necessary to make determinative findings for the purposes of this application, of the merits of his contested land dispute with the [town’s representatives]. It is prepared to accept that he has an ongoing dispute with the [town’s representatives] over ownership of certain of his lands, and he has contested these using legal processes.
The Tribunal does not however accept that the expropriation/usurpation of the applicant’s lands was done because of his political opinion, past political activities or future political ambitions.
On the applicant’s own evidence, he still has substantial [projects] in [Town 2], comprising [a large project], which he has given to a [different business] to [conduct] for him. Evidence of this in the form of a letter from the [named business] was provided. He told the Tribunal that to date some 40% of [these projects] have been [completed]. This indicates that the applicant has not been precluded or prevented from realising a financial benefit from his assets, notwithstanding his past or ongoing land dispute with the [town’s representatives] or his political differences with the present administration.
The Tribunal also takes into consideration that the applicant’s [specified family members] have remained living in [Town 2] continuously since his departure in 2009. He left his daughter with his mother there, rather than in Lima where his wife’s family live, and has made no attempt to bring her to Australia despite return trips to Peru by himself in 2011 and his partner in 2012. Above the Tribunal has rejected his claims that his mother received threats continuously since 2009 directed at him.
The applicant returned to Peru in 2011, after the first alleged expropriation of his land. When asked why he did this, he said he returned to try and resolve his land issues and to continue with his political work. He gave no more detail of what this political work was or what problems he experienced at this time. Despite claiming his life was in danger from this time, he stayed in Peru for 4 weeks and he made no attempt to bring his daughter to Australia with him, despite having at that time a valid student visa. The Tribunal considers his conduct in returning to Peru for 4 weeks, and leaving his daughter there upon return to Australia is not consistent with him having a genuine fear for his life. They also made no attempt to bring their daughter to Australia in 2012, when the second named applicant returned to Peru. The Tribunal has considered, but does not accept, the applicant’s explanation when this was put to him, that his [specified family members] are not at risk because it is only his presence in Peru that is at risk of harm due to his political ambitions and influence.
In the recent past, there has been a significant change of administration at the national government level in Peru. Contrary to the applicant’s claims, Fujimorismo and the Popular Force party of Keiko Fujimori has been quite influential and powerful in recent years. The final runoff in the presidential election in June 2016 was between the Popular Force leader, Keiko Fujimori, and Pedro Pablo Kuczynski of the Peruvians for Change Party. On 10 June 2016, Pedro Pablo Kuczynski narrowly won Peru’s presidential election,[2] in elections that were generally declared by domestic and international observers to be fair and transparent.’[3] These developments do not support the applicant’s claims that he remains at risk of harm from his ‘leftist’ political opponents in [Town 2] or regionally in [Region 1] due to the political power of the incumbent [Office Bearer] [Candidate B] or Congressman [Mr A], who belong to the [Party 2], and are generally affiliated with the left. The Tribunal does not accept the applicant’s claims that the [Party 2] is growing in power or that the applicant is or will be considered an obstacle in their political plot and his life would be in danger for this reason. The Tribunal does not consider the applicant has provided evidence which supports these claims, and information before the Tribunal suggests in fact that the contrary may be the case given that the opposition majority in the Congress is linked to Keiko Fujimori’s Fuerza Popular party. [4]
[2] ‘Pedro Pablo Kuczynski wins Peru’s presidential election’ Peru Reports, 10 June 2016 2016 US State Department Country Report on Human Rights Practices-Peru, Ysol Delgado Peru: PKK and Fujimorismo Butt Heads over Peruvian Education, December 9, 2016 see also Peru election: The end of Fujimorismo? BBC News, 10 June 2016, >
For all of the above reasons, having considered all of the evidence and material before it, the Tribunal is not satisfied that there is a real chance the applicant will face serious harm on the basis of his political opinions, affiliations or aspirations or as a Fujiorismo landowner or as a landowner who claims his lands were expropriated by local authorities, or for any other reason, if he were to return to Peru. It does not accept that he cannot access legal protections in Peru in respect of any actions taken against him or his property.
Even if the Tribunal were to accept that he may not be satisfied with the final outcome of the legal process in his current land dispute, the Tribunal is not satisfied that usurpation of his lands while absent from the country amounts to serious harm within the meaning contemplated by s91R of the Act. The Tribunal is not satisfied that the past land usurpations caused him significant economic hardship such that his capacity to subsist was threated or that he was prevented from earning a livelihood given that, after these incidents, he still had ownership of a substantial [amount] of [land] and has managed, even while outside of the country, to arrange for them to be sold through a [different business].
Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary Protection criteria
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Peru, there is a real risk that he will suffer significant harm as defined in s36(2A) of the Act.
Having regard to the evidence and claims and findings made above, and the Tribunal’s reasons above for the absence of a real chance of serious harm, the Tribunal is also not satisfied there is any real or substantial basis to believe there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to Peru because of his political affiliation to an opposition political party, as a Fuijimorismo, or as a landowner or for any other reason. The Tribunal has above rejected the applicant’s claims of phone threats and a threat in person by a group of men associated with rondas campesinos in 2009. It has rejected that his mother has received threats continuously since he departed the country. It has rejected his claims regarding the level of his political profile and political ambitions and aspirations upon return to Peru. It is not satisfied that his dispute in relation to the claimed usurpation and invasions of his lands in the past amounted to significant harm against him, in that it did not involve pain or suffering, severe or otherwise, inflicted on him as required to be considered cruel or inhuman treatment or punishment. Neither did it cause, or intend to cause, him extreme humiliation as required to be considered degrading treatment or punishment. Therefore, the Tribunal is not satisfied that usurpation of his lands, in the applicant’s circumstances, amounts to significant harm as that term is defined in s36(2A).
Given these findings the Tribunal is not satisfied there are substantial grounds for believing there is a real risk either of the applicants will face significant harm upon return to Peru.
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
The Tribunal affirms the decision not to grant the applicants Protection visas.
Meena Sripathy
Member

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.
Member of the same family unit
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. The expression is defined in r.1.12 of the Regulations to include spouse or partner.

[2017] AATA 715

7 April 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction