1602952 (Refugee)

1602952 (Refugee) [2018] AATA 4556 (24 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602952
COUNTRY OF REFERENCE:                  Colombia
MEMBER:Brendan Darcy
DATE:24 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 24 September 2018 at 4:02pm
CATCHWORDS
REFUGEE – protection visa – Colombia – imputed political opinion – opposition to FARC – particular social group – family member of army intelligence officer – threats from left wing extremists – anonymous threatening phone calls – delay in applying for protection – ongoing unstable general security environment – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 91, 424A, 499
Migration Regulations 1994, Schedule 2, r 1.12

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MZZIA v MIBP [2014] FCCA 717
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 the Republic of Colombia (Colombia), applied for the visas on 28 April 2014 and the delegate refused to grant the visas on 8 February 2016.
In this decision, the first named applicant, [named], is referred to as the first applicant or the applicant; the second named applicant, [named], as the second applicant or the applicant’s husband; and the third named applicant, [named], as the third applicant or the applicant’s second child.
The applicants appeared before the Tribunal on 9 March 2018 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.
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 including spousal relationship and dependents of minors.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants have credible claims that they will be targeted for serious or significant harm, if they were to be returned to post-conflict Colombia, into the reasonable foreseeable future.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The first applicant claims be born on [date] in the capital district of Bogota; the second applicant claims to be born on [date] [in] [a] department of Colombia; and the third applicant claimed to be born on [date].
All three applicants claim to be citizens of Colombia (Republica de Colombia) and their certified copies of their Colombian passports are on the departmental file ([File number]).[1]
[1] [File number] Folio 67-68;82-84; and 89-90
The applicants claimed to be able to speak, read and write Spanish and English; that their religion is Roman Catholic; and that their ethnicity is ‘Spanish speaking’.
The first and second applicants claimed to be married in Bogota [in] 2003, and submitted a translated copy of their marriage certificate.
The applicants arrived in Australia [in] July 2008 while holding [temporary] visas, with the first applicant being the primary visa holder and the others as dependents. These [temporary] visas remained valid until 2 June 2010.
The applicants applied for [different temporary] visas on 29 May 2010 and were granted the visas on 19 October 2011 with the second applicant being the primary visa holder.
On 16 March 2013, the applicants applied for [permanent] visas with the second applicant being the primary visa applicant. However the applications were refused on 4 December 2013 and then subsequently applied to the Tribunal, differently constituted, on 19 December 2013.
The applicants applied for class XA subclass 866 protection visas on 28 April 2014
The Tribunal affirmed the department’s decision not to grant the visas on 20 November 2014.
The applicants were granted associated bridging visas with their protection visa application on 2 January 2015.
The applicants have not travelled outside of Australia since their arrival in 2008.
Written claims for Protection
Along with the applicants’ submitted 866 protection visa forms, there is an accompanying legal submission from the applicants’ representative dated 24 April 2014, arguing the applicants face a well-founded fear of persecution at the hand of the FARC guerrillas based on the first applicant’s imputed political opinion. Attached is some country information about the situation in Colombia. [2]
[2] [File number] Folio 31-42
The applicant’s claimed that they are owed Australia’s protection obligations are detailed in a statement submitted to the department on 21 August 2015.[3] Below is a summary of the applicant’s written claims in this statement:
[3] [File number] Folio 1161-166
·     The first applicant fear persecution at the hands of the Revolutionary Armed Forces of Colombia or (FARC) guerrillas;
·     The first applicant’s parents met while working for the [Government Agency 1]. The first applicant’s father was [an employee] of [Government Agency 1] in the section for [section]. He investigated guerrilla cells, unions and any government department that may be associated with insurgents;
·     Years later, the first applicant’s father joined the National Colombian Army to do the same work as he had done for [Government Agency 1]. While employed as an intelligence agent, he investigated and researched infiltrations into the army by guerrilla cells at any level;
·     The marriage of the first applicant’s parents deteriorated due to her father’s constant absences and they decided not to live together. The first applicant’s father left without leaving any contact details where to find him in the event of an emergency. The applicant’s mother received financial assistance from her father but it was not regular as he disappeared for months at a time;
·     In the 1980s, the applicant’s [sibling] was born and one of her parents attempted to reconcile. A few mother later however, her father disappeared again leaving no contact details and the applicant’s mother began the process of legal separation.
·     The first applicant had a daughter, [named], on [date] at the age of [age] years. The relationship with the father of her daughter didn't last, so she continued living together with her mother as a sole parent;
·     The first applicant's father visited once while she was pregnant and then came once again to meet her daughter after her birth. After this the only contact they had with the applicant's father was short telephone calls made at the end of the year. One time, two years went by without hearing from the first applicant’s father;
·     In 2000 the first applicant claims she was surprised to receive a phone call from her father at her workplace;
·     In 2002, the first applicant moved with her daughter to live in an apartment;
·     In [2003], the first applicant married her husband, the second applicant, and they went away on a honeymoon;
·     On returning from their honeymoon, the first applicant's mother told her news of her father being hospitalized after having a [medical condition]. The first applicant visited him at a [hospital] and she kept him company as he recovered in hospital. After this time, the first applicant claims her father started calling her more, at least once a month. He visited her, once in her home. She noted that during conversations with her father, she sensed certain political inclinations which surprised her because of her father's work for the Army;
·     In [year] the first applicant fell pregnant with her son, the third applicant. The first applicant states her father frequently visited, but she didn't knew where he resided because her father did not have a relationship with the first applicant’s mother or [sibling] and she did not tell them of their meetings.
·     The first and second applicants’ son, the third applicant, was born in [year] and after his birth the first applicant claims she only saw her father a couple of times but they often spoke of her son;
·     The applicant’s father has been persecuted by the guerrillas of Colombia FARC due to his work as part of the Colombian Army's intelligent agent and he is considered by the FARC as its enemy and as a military objective;
·     For this reason the first applicant as a member of immediate family of [her father], is persecuted to be killed if her father did not collaborate with the guerrillas in the capacity of spying on activities of the Colombian Army and handing over to the FARC all information gathered through his work as an intelligent agent of the Army;
·     The first applicant was identified as [her father’s] daughter by the guerillas when her father frequently visited her home after the birth of the third applicant. Despite the father of the first applicant’s efforts to keep his family out of his work environment his connection with his grandson publicly exposed the applicants to danger;
·     In April 2007, the first applicant claims she started receiving telephone calls at her workplace, inquiring about her father. She says they frightened her a lot because they would call and not identify themselves. They asked of her father, but the first applicant states she would not disclose any information to them; telling them they have the wrong number;
·     In May 2007, the first applicant spoke to her father and told him about the phone calls she was receiving and claimed her father did not want to give the first applicant’s details, but told her to be careful and that he was working on the matter. The first applicant claimed he asked her to be on the alert and always be accompanied by someone whenever she left work;
·     The first applicant claimed she became very upset with her father and decided to leave her job as it seemed these people only knew that she worked at [a business] but had not identified her. The first applicant further claimed she fear more for the safety of her husband and her son than herself. The first applicant consequently, it was claimed, ceased her employment and soon after she and her husband put their apartment up for sale;
·     The first applicant states her family stayed in their apartment for close to six months, fearing to venture out She was especially paranoid over the safety of her son;
·     The first applicant claimed she and her husband considered leaving Colombia but didn't know what to do. The financial commitments began to exert pressure on them and the first applicant was forced to find employment again. During this period, the first applicant claims they had not had another call and life had to go on;
·     In January 2008, the first applicant started working again. She started working for a [company];
·     In March 2008, after leaving work on day, at around 6 PM, the first applicant claimed she was walking towards [a location] to catch a bus. While waiting for the traffic lights to change to cross the street, two well-dressed men and a woman came close and called her by her name. Thinking they were clients of hers from work, the first applicant responded but to her surprise one of the men threatened her saying, 'tell your Dad that we are waiting for him, and if he does not help with what we have asked turn, you are going to come with us. We already know where you work and live. And we know your husband and son.";
·     The first applicant claimed she was terrified and had her husband pick her up. They moved to the new apartment that they had just purchased. The first applicant states her husband had already started making inquiries of how they could apply for a visa and had found information on [temporary] visas in Australia. As a result of what had happened, they decided to leave Colombia to be safe;
·     The first applicant's father contacted her on her mobile phone. Initially he didn't tell her anything but then confessed he was on a mission after meeting members of the "left-wing parties" and had become romantically involved with a woman who was a former combatant of a rebel group. The first applicant claims her father confessed to sharing information with this woman about her and [the third applicant] but he never told her where they lived and where she worked. The first applicant then claimed the woman involved her father in a meeting with guerrilla members and months later they already knew who her father was;
·     The first applicant claimed her father told her that he managed to disappear but knows they are looking for him so that he can give them Army information and other information he has he was a military target of the guerrillas. The first applicant states she couldn't believe it;
·     The first applicant claimed they couldn't take refuge with her mother because she is also in danger of being identified as her father’s wife despite being separated for many years. Since she married, the first applicant's daughter was living with her mother. As she has a boyfriend who is living with her so she is safe for now.
·     While at the new apartment and after ceasing her employment at [the workplace], the first applicant started receiving anonymous calls asking about her father. After the second call, they disconnected the phone line and went to find refuge at her mother-in-law's home where the applicants waited to receive approval of their [temporary] visas to travel to Australia.
·     A few days before departing Colombia, they received calls again at the applicant's mother-in-law's home and that they asked to speak to the first applicant but the applicant's mother-in-law cancelled the calls;
·     The first applicant also claimed that she cannot return to Colombia because she regards being abducted by the FARC guerrillas and killed as her father does not obey their demands.

The applicants attended an interview with a departmental official on 30 November 2015.
On 8 February 2016, a delegate on behalf of the Minister refused to grant the applicants protection visas on their claims lacking credibility on the basis of a lack of documentary evidence, vagueness and the delay in applying for protection since arriving in Australia in 2008.
On 7 March 2018, the applicants validly applied to have the delegate’s refusal decision reviewed by the Tribunal. The delegate’s decision record was attached to the review application.
Evidence at the Scheduled Hearing
On the Tribunal’s file is a certified translation of the first applicant’s submission to it addressing a number of the delegate’s specific adverse findings which contributed to the delegate refusing the applicants protection visas.
On 13 February 2018, the applicants’ representative submitted a legal submission that the first applicant belonged to a particular social group, as a family member of the Colombian army or intelligence agency and that she has a fear of persecution arising from this as members of FARC could find her in Colombia and harm her. The submission also outlines that the third applicant faces real chance of serious harm arising from security situation in Colombia and because he is well settled in Australia. Regarding the general levels of insecurity with Colombia, the submission claimed that although the country has reached a peace process and that FARC is now a political group, there is no peace or protection for the applicants, if they were to return to their home country. The submission quotes ex-President Uribe stating that impunity for FARC rebels who murder and kidnap police and soldiers continues under the peace deal and reiterated the United Nationals concerns that the arrival of illegal groups and in areas once controlled in FARC and the activities of ELN rebels target ex combatants of FARC and have expanded illicit activities.
On 9 March 2013, the applicants appeared before a Tribunal hearing in Melbourne to give evidence and present arguments as to the reason they are owed Australia’s protection obligations. The third applicant, as a minor, was not required to provide evidence.
At the end of the hearing, as a number of important elections were to be conducted in the months following the hearing, the Tribunal indicated that it would formally invite comment from the applicants regarding those developments.
On 4 July 2018, ass indicated during the hearing, the Tribunal wrote to the applicants under section 424A regarding the situation in that country. An extract of that letter is attached to this decision. The Tribunal requested the applicants to respond by 20 July 2018.
On 18 July 2018, the applicants’ representative provides a response to the invitation to comment.[4] The submission states that Colombia’s security and peace agreement is at risk as members of the Congress who do not wish to negotiate with FARC are discussing holding further plebiscites or referenda; that there are reports that FACR has not surrendered all their weapons; that not all initiatives arising from the peace agreement have been implemented into law; that FARC leaders have been critical of legislative measures and judicial decisions alleging the violation of the peace process; and that the peace process has aggravated allegations of corrupt and drug trafficking.
[4] AAT Folio 70-102
The representative also provide a number of media reports to support the argument regarding the risks to children, including reports about 16,000 people behind displaced in Northern Santander near Venezuela due to clashes between ELN and the members of the ‘Los Pelusos’ criminal gang in July of this year and the ongoing recruitment of children by ex-FARC members, ELN and criminal groups.
The submission further argues that, apart from the third applicant’s unfamiliarity with Colombian customs and traditions, the lack of security in Colombia arises from the peace process being a failure and that it is likely the current leadership of Colombia will attempt to avoid going into a peace process with FARC, there is a lack of effective protection measures for him and the other applicants under s.5J(2) of the Act’s refugee provisions.
There were no further documents or submission provided to the Tribunal.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of Reference
The Tribunal accepts on the basis of evidence before it including the certified copies of the applicants’ passports, that they are nationals of the Republic of Colombia. The Tribunal has assessed the applicants’ claims against Colombia as their country of nationality for the purposes of the Convention and their receiving country for the purposes of s.36(2)(aa). The Tribunal finds that the applicants are outside their country of nationality.
Third Country Protection
Available country information indicates that Colombian citizens possess a limited right of entry into some of the other regional states in South America. The following information is taken from a December 2015 Departmental research report:[5]
The Andean Community of Nations (Comunidad Andina de Naciones – CAN) includes Bolivia, Colombia, Ecuador and Peru.[6] Chile is an associate member of CAN.[7] The full member states of the Common Market of the South (Mercado Común del Sur, MERCOSUR) are Argentina, Brazil, Paraguay, Uruguay and Venezuela.[8] The associate member states are Bolivia, Chile, Colombia, Ecuador and Peru.[9]
…
Free movement of persons is provided for in the regional agreements of CAN and MERCOSUR. A representative of Migration Colombia consulted by the Immigration and Refugee Board of Canada in 2012 advised that Colombian citizens are able to travel as tourists to the member states of CAN, as well as the member and associated member states of MERCOSUR, ‘with only a national identity document as a valid travel document’.[10]
[5] Country of Origin Information Service Section, Department of Immigration and Border Protection, 2015, “Colombia: CI151123151739390 – Third country protection – Andean Community of Nations (CAN) – Common Market of the South (MERCOSUR) – Union of South American Nations (UNASUR)”, 9 December.
[6] Immigration and Refugee Board of Canada 2012, “Colombia: Whether Colombian citizens are required to have their passports stamped upon exit from and entry into Colombia; if so, whether this procedure is applied uniformly at all immigration posts”, 29 February <
[7] Juntos Podemos? Together We CAN: Chile and the Andean Community’s Quest for Free Trade 2007, Council on Hemispheric Affairs, 17 July <
[8] Romero, S 2012, ‘With Brazil as Advocate, Venezuela Joins Trade Bloc’, The New York Times, 31 July <
[9] Immigration and Refugee Board of Canada 2012, “Colombia: Whether Colombian citizens are required to have their passports stamped upon exit from and entry into Colombia; if so, whether this procedure is applied uniformly at all immigration posts”, 29 February; Klonsky, J, Hanson, S & Lee, B 2012, Mercosur: South America's Fractious Trade Bloc, Council on Foreign Relations, 31 July <
[10] Immigration and Refugee Board of Canada 2012, “Colombia: Whether Colombian citizens are required to have their passports stamped upon exit from and entry into Colombia; if so, whether this procedure is applied uniformly at all immigration posts”, 29 February
A background paper prepared for a 2007 International Organization for Migration (IOM) workshop provides the following information relating to the mobility provisions for citizens of CAN member states:
Entry: As of January 2005, Member State nationals may enter any other Member State as tourists for a period of up to ninety days by presenting a national identification document that is valid and in effect in the issuing country, without the need for a consular visa. This permission to enter may be renewed once for an additional ninety day period. To enter Venezuela, Member State nationals must present their passports.
Residency: Andean migrant workers shall enter and reside in a Member State in coordination with the competent national agencies of the host Member State and in accordance with the Community legislation in effect or, if lacking, with relevant national legislation. The Labour Immigration Office shall issue to national workers of other Member States documentation that accredits their status, qualifying them before the competent immigration authorities to make arrangements for residence in the host country.
Employment: Categories of persons: The IAML [Andean Labour Migration Instrument] permits the unhampered movement and temporary residence of Andean Nationals in the sub-region as wage-earning workers. Labour migrants are classified into four categories: individually moving workers, company workers, seasonal workers and border workers. Excluded from the IAML are those who work for the public administration and those whose activities may adversely affect public morals, law and order, human life, public health and national security.[11]
[11] International Organization for Migration 2007, Free Movement of Persons in Regional Integration Processes, International Dialogue on Migration Intersessional Workshop, 18-19 June, p.8 <
The IOM paper also provides information on the free movement of citizens of MERCOSUR member states within other member states, although this may not apply to Colombian citizens, as Colombia is only an associate member of MERCOSUR:
Entry: The Agreement on Free Movement and Residence for State Party Nationals grants MERCOSUR citizens, …, an automatic visa and the freedom to work and live within the territory of the State Parties, provided that they have no criminal record within the past five years. The MERCOSUR visa allows natural persons to enter in another State Party and stay for up to four years for the purpose of providing services.
Residency: The Agreement on Free Movement and Residence for State Party Nationals grants MERCOSUR citizens, as well as natives of Chile and Bolivia, an automatic visa and the freedom to work and live within another State Party, provided that they have no criminal record within the past five years.
Employment: Categories of persons: Nationals of one State Party are allowed to live and work in another State Party without a visa. All State Parties are obliged to ensure that service providers from each Member State receive treatment that is no less favorable than that granted to their own nationals or to those from third countries.[12]
[12] International Organization for Migration 2007, Free Movement of Persons in Regional Integration Processes, International Dialogue on Migration Intersessional Workshop, 18-19 June, p.15.
The above information sets out that the MERCOSUR agreement could theoretically allow the applicants as Colombian nationals, to enter, reside and work in member and associate member countries. However in practice there appears to be a level of arbitrariness and uncertainty regarding the granting of such rights, including member state withdrawals and lack of procedural regularity.
A June 2016 UNHCR Research Paper contains the following:
According to UNHCR the Colombian conflict has produced at least 360,298 refugees, who in most cases have fled to border areas in neighbouring countries. However, due to different reasons, including physical, political and legal obstacles, most Colombian refugees in neighbouring countries have not been able to access asylum procedures. As a consequence, many remain under irregular migration statuses or in some cases under regular migration statuses that do not contain non-refoulement provisions, curtailing the effective enjoyment of their rights and creating a constant fear of being forcibly returned to Colombia. [13]
[13] UNHCR Colombia, Serna N.R., Gottwald M., New Issues In Refugee Research “Research Paper No. 279 ‘Comprehensive Solutions for Colombian Refugees in Latin America’”, June.
The 2016 USDOS Human Rights Report on Bolivia, states:
… The law provides for the granting of asylum or refugee status, and the government has established a system for providing protection to refugees through the National Commission on Refugees…. UNHCR reported that 33 individuals from Colombia, Lesotho, Nigeria, and Cameroon sought refugee status in the country as of October. The National Commission on Refugees reached a decision on 31 of the cases, and two additional cases remained pending. Three individuals were granted asylum and 28 individuals were denied. According to media reports, more than 800 refugees from more than 20 countries resided in the country. Most were Peruvian or Colombian and lived in La Paz, Cochabamba, and Santa Cruz. The government did not provide temporary protection or resettlement services to these persons. Refugees have the right to work once authorities grant their residency status but not while waiting on pending applications.
In such circumstances the Tribunal is not satisfied that the MERCOSUR agreement gives the applicants existing rights, including a ‘liberty, permission or privilege lawfully given’, to enter and reside in any member or associate member state.
The CAN agreement also includes rights to residence in member states however in practice these appear to involve procedural elements which incorporate requirements and criteria to be satisfied. As such there is the prospect of being refused, or at the very least of significant delay in the approval of a right of residence. The Tribunal therefore finds that it cannot be considered an existing right, in terms of its immediacy and certainty, of which the applicants can avail themselves.
There do appear to be practical mechanisms amongst CAN member states, to allow nationals of the relevant countries to readily enter the member states as tourists for up to 90 days, with a further extension of 90 days possible once within the country. Available information[14] indicates however that the time period allowed, in for example Peru, is stamped by Customs officials on arrival and that this period can be well less than the 90 day maximum. If further time is asked for, officials then enquire as to the purpose of the visit before deciding whether or not to allow further time. The information further states that proof of onward travel or return ticket is required for admission for Peru and also in Ecuador.[15] Article 54 of the Ecuador Human Mobility Act also prohibits tourists from working in Ecuador.[16]
[14] See for example the website, ‘How to Peru’, at
[15] See website EcuadorExplorer.com, See website EcuaAssist, at >
The Tribunal considers that if the applicants wanted to enter one of the CAN member countries his immediate ‘right’ to do so is limited to entering as a tourist. The applicants however are not a tourist but asylum-seekers. They would not be tourists or intend to be tourists in the CAN member countries. They, therefore, could not enter such countries under the CAN agreement except in contravention, or outside the scope, of the agreement. The Tribunal is also of the view that a short visit as tourists does not amount to residence or a right to reside.
On the basis of the information before it and the reasons as set out, the Tribunal finds that the applicants do not have any right, including a liberty, permission or privilege lawfully given, to enter and reside in a CAN member state under the CAN agreement.
In view of the above the Tribunal is not satisfied the applicants have rights to enter and reside in the neighbouring and regional countries in South America, including the member states of CAN and MERCOSUR.
There is no indication or evidence before the Tribunal that the applicants have rights to enter and reside in any other country. The Tribunal therefore finds they are not excluded from Australia’s protection obligations by s.36(3) of the Act.
Members of the Same Family Unit
Spousal Couple
At the time of application of the applicants’ protection visas with the Department, it was claimed that the first applicant and the second applicants were in a spousal relationship; that they have one biological child between them; and that they have travelled to Australia together. On Departmental file is a copy of the first and second applicants’ marriage certificate (with a certified translation) indicating they were married in 2010. These claims were re-iterated at the Tribunal’s scheduled hearing. With no evidence to the contrary, the Tribunal accordingly accepts the first and second applicants are in a genuine spousal relationship and that the second applicant satisfies r.1.12(4)(a) of the Migration Regulations, as he has membership of the same family unit as the first applicant for the purposes of this application for review.
Biological Children in Australia
It is claimed the first applicant is the biological mother of the third applicant and that the second applicant is the biological father of the third applicant. According to the available evidence, the third applicant was born in [year] in Colombia and is a minor at the time of making this decision. Based on the available evidence and with no information to the contrary, the third applicant satisfies being a dependent children of the family head as required by r.1.12(4)(b).
If protection visas were granted to one of the applicants in this review on the basis they are owed Australia’s protection visa obligations, the Tribunal is obliged to consider that the other applicants be remitted for reconsideration on the basis that these applicants satisfy s.36(2)(b) or s.36(2)(c).
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicants but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
The Tribunal has also considered the published guidelines of the Administrative Appeals Tribunal in relation to credibility[17]:
9. Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.
10. The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct.3 The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists.4 However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.
Accepted Claims and Circumstances
[17] AAT - Migration & Refugee Division, Guidelines on the Assessment of Credibility July 2015
There were a number of uncontroversial aspects about the applicants’ personal circumstances which the Tribunal found to be credible, including the following:
The first applicant was born in Bogota in Colombia in [year], as claimed; that her mother, born in [year], resides in Bogotá with her [sibling], [named], and that her father, was born in [year], resides in Colombia, based on the submitted translation of the first applicant’s birth certificate.[18]
[18] [File number] Folio 113
It is also accepted that the first applicant has an adult daughter, not related to the second applicant, who resides in Bogotá, as claimed. It is also accepted that the first applicant’s highest level of education achieved a [qualification] after completing [an earlier qualification] at [a named education institute]. It is also accepted that she worked in a [business] as an [occupation] in Bogotá between 1998 and 2007, as claimed.
It is further accepted that he second applicant was born [in] Colombia in [year], as claimed; that occupationally he is [an occupation] and an independent contractor and that he completed a [specified qualification] in Colombia; and that he completed a [qualification] since arriving in Australia.
The third applicant, it is further accepted, was born in Bogotá in Colombia in [year] and is the biological child of the first and second applicants, based on the submitted translation of his birth certificate.
The applicants all speak read and write Spanish and English; that their religion is Roman Catholic; and they identify as ethnically as ‘Spanish speaking’ Colombians, as claimed.
Based on this information, the Tribunal finds that the applicants’ home area is the metropolitan area of Bogotá.
Credibility concerns: the applicants’ association with a military intelligence officer.
The first applicant claimed she had been threatened by left wing extremists in 2007 and she and her family have fears they will be harmed they returned to Bogotá specifically and Colombia more generally.
The first applicant claimed that she experienced a poor relationship with her father who had been largely absent since his divorce with the first applicant’s mother, now aged about [age]. Her father only called occasionally as he chose his work with [Government Agency 1] and then with the national army of Colombia over his family and that he even had attended professional development courses [overseas]. She was claimed that her father was a member of the military intelligence whose role it was to gather sensitive information from radical trade unionists and others who might have information about FARC and other extreme left wing activity. She claimed that
She claimed that her problems began in [year] when her father saw the first applicant with her son, the third applicant, and that he initiated an attempt to come closer to her and her family. The Tribunal enquired if that were the case, why did not show any interest his granddaughter who was born considerably earlier; to which she replied that he was a proud Latin man affected by machismo so was much more interested in being a grandfather to her son. The first applicant added that after she had received a number of anonymous calls at her work at the [business], asking about the whereabouts of her father and telling her that he cannot hide. Having been frightened, she would hang up. She claimed that she had a conversation in May 2007 with her father who asked her to keep calm because he was working on something sensitive but did not provide any other details. She said she was very angry about this with him as it put her in danger. She claimed that she was so frightened she did not leave her house and it affected her work and the family’s finances. Eventually she went back to work in January 2008 and that there was a sense of normality until in March 2008, two men and a woman approached her during as she was leaving for home to convey the message that her father cannot hide and if he did reveal himself, she knew where she and her family lived. She added that they considered leaving their apartment because of the phone calls but decided they should leave the country instead. She claimed that has been in contact with her father since their departure.
The second applicant said that he did not much about his father in law at all and was not present in their married lives. Nevertheless the second applicant elaborated on the 2008 incident when his wife had been approached by strangers and threatened the kidnapping of his wife, his son and himself. He claimed he did not pick up any phone calls although he was working from home.
There were a number of aspects of the first applicant’s claims that did not support not mutually supportive.
Firstly, it was claimed an active military intelligence office in the years prior to the applicants’ departure for Australia. During the hearing, the first applicant was unsure of her father’s age but suggested he was [a senior age] at the time of the hearing. The Tribunal pointed out if that were the case he was [a senior age] when the alleged incident of threatened harm occurred in 2008, and that it was unlikely that he was employed as a military intelligence officer, as claimed. It is the Tribunal’s finding that the first applicant’s father was aged about [age] at the time of making this decision, so he was likely to be aged in [an age range] which is over the pensionable age. Based on the age of the first applicant’s father, it appears implausible he would be in active service in the years leading up to the applicants’ departure.
Secondly, as mentioned in the written statement dated 9 February 2018 by the first applicant and in the scheduled hearing, the first applicant renewed her relationship with her father while he was [in] hospital following a [medical condition]. She added that her mother and her [sibling] did not approve of her visits. However, as raised in the hearing, it seems unlikely that her father was an active military officer if he had [a medical condition] in the years leading up to the applicants’ departure. (It is noted the first applicant did not respond to this specific credibility concern when it was raised in the hearing) Neither is it plausible that the first applicant’s father was in hiding given his age and ailment.
Thirdly, the first applicant was unable to explain to the Tribunal as the reasons that her father who had been involved in many years of military intelligence gathering against lethal extremist would inadvertently or carelessly disclose the name and other details of the first applicant. She claimed it was because he was romantically involved with a woman who was a former combatant. This specific claim is in itself implausible, in the context of the Tribunal’s other credibility concerns.
Fourthly, the Tribunal had difficulties in accepting that radical violent extremists would target the first applicant and her immediate family and not the applicants’ mother, her [sibling] or even her own daughter. When these aspects of her written and oral evidence were put to her, the first applicant claimed her daughter was not only not favoured like her son but she was safe as she now resided with her boyfriend or de facto spouse and that her father only mentioned her and not her other, less favoured, daughter. These explanations in themselves rang hollow and were unpersuasive, given the claim these violent revolutionaries were seeking the first applicant’s father by threatening family members and were unlikely to narrow the threats to just the first applicant and her family or that the father would not mention his other daughter or grandchild in some other unguarded moment.
The Tribunal also notes as was in the submitted decision record that the only evidence the first applicant provided that her father was a member of the Colombian army was a medical services identification card issued to her mother. The date of issue on the card is [month and year] with an expiry date of [month and year], indicating that the card was more than twenty years out of date. It is also mentions the name of the first applicant’s father and his rank. The first applicant spoke to this document but did not submit a copy or any other supporting documents, such as photographs. Nevertheless, the Tribunal accepts the first applicant’s father was a member of [Government Agency 1] and the Columbian army who he undertook intelligence work in the distant past but not in the years following the applicants’ departure as implausibly and inconsistently claimed by the first applicant.
When cumulatively considering these credibility concerns, the Tribunal finds these explanations about the applicants’ critical claims about past threats arising from their association with the first applicant’s father as a former military intelligence officer to be weak and inconsistent. It is in this context the Tribunal has considered whether there is any credibility arising from the applicants’ visa history since arriving in Australia.
Delay in applying for protection visas
The Tribunal has considered the applicants’ migration history as outlined above.
The delay in lodging the protection visa is of serious concern to the Tribunal. The Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).
In this matter, the applicants arrived in Australia [in] July 2008 while holding [temporary] visas. On 29 May 2010, the applicants applied for [different temporary] visas which were granted. On March 2013, the applicants applied for a [permanent] visa but were unsuccessful. They then proceeded to appeal that refusal decision at the Tribunal; however that Tribunal affirmed the decision not to grant the applicants the visas on 20 November 2014. Earlier in 2014, the applicants applied for protection visas on 28 April 2014. This represents an almost six-year delay applying for protection visas since their arrival.
The first and second applicants were asked to explain this delay. The first applicant claimed that when they arrived on [temporary] visas they did not know about their eligibility for protection visas. The first applicant elaborated that they were refused [another] visa in December 2013, they did not apply for protection visas but instead relied on the professional migration advice to appeal the refusal decision. She claimed her fears of persecution were not raised with her migration agent or lawyer at the time as she did not feel comfortable about talking about it. Asked the reasons, the applicants did not withdraw their review application in late 2014 after applying for protection visas in April of the same year; the first applicant replied that she thought it had been withdrawn and noted they did not attend the scheduled hearing. Later in the hearing, the second applicant claimed that, although they wanted to urgently leave Colombia, the best option available were [temporary] visas. He elaborate that they did not see themselves as refugees.
Given the first and second applicants had access to the professional services a migration agent or lawyer since their arrival in Australia, the applicants not only had ample time to disclose their claimed circumstances to such an agent. It does not accept they were unaware of protection visas since their arrival in Australia, given their educational status and capacity to understand complex situations, including their migration options. Given their claims about past threats and having a real chance of serious harm or a real risk of significant harm if they, including their young son, returned to Colombia, it would be reasonable to have expected they would have lodged for a protection visa considerably earlier than 2014. Furthermore, their visa history indicates that they applied for protection visas because their migration options had considerably narrowed at the end of 2013 and not because they had any genuine or urgent or deep subjective fears in returning to Colombia. Given their significant delay in applying for protection visas and in the context of the Tribunal’s earlier adverse credibility findings, the Tribunal does not accept they did not raise because of a lack of knowledge or they felt uncomfortable or because they did not view themselves as refugees as persuasive explanations.
For the reasons stated above, the Tribunal considers that had the applicants any urgent or deep subjectively held fears of persecution arising out of their claimed circumstances, that the applicants would have sought to lodge a protection visa application considerably earlier, and this delay invites the Tribunal to cast doubt on the credibility of the applicants’ overall claims for protection.
Cumulative adverse credibility findings
The first applicant’s overall credibility is a matter of central importance in determining this review application’s critical claims that they are owed Australia’s protection obligations.
Outlined above are a number of adverse credibility concerns regarding the first applicant’s weak, unpersuasive and inconsistent testimony about her father’s intelligence activities; her incidents of past threatened harm and the unpersuasive explanations for that delay. When cumulatively considering these adverse credibility concerns, it is the Tribunal’s assessment that the first applicant’s critical written and oral claims lacked of overall credibility. It is in this context that it makes the following findings regarding the applicants’ critical claims of past threatened harm, his personal circumstances and the real chance of serious harm or real risk of significant harm, now and into the foreseeable future:
While it accepts that the first applicant’s father had been in the Colombian army in the past and that he had separated or divorced the first applicant’s mother, it does not accept the father had been an absentee or neglectful parent. While it accepts that the first applicant’s aged father had [experienced a medical condition], as claimed, it does not accept he continued his work in the field as a military or intelligence exposing him to peril when he was either sick or of pensionable age, as inconsistently claimed by the first applicant.

100. Furthermore, it does not accept the first applicant’s father had been carelessly provided sensitive personal information about himself or his family members as an intelligence officer, either to a woman with whom he was romantically involved, to members or associates of the FARC guerrilla network or any other extreme left wing outfit, as implausibly claimed by the first applicant. Nor does it accept the first applicant’s father has deliberately lost contact with her or not in contact for the claimed reason that he is an active Colombian military intelligence agent in hiding.
101. The Tribunal does not accept the first applicant or any of her family members received any anonymously conveyed phone calls, either in the workplace or at home, or any face-to-face threats at all. It does not accept any specifically targeted threats of kidnapping, extortion or other physical-ill treatments were ever received by any of the applicants or that they were so frightened by these specific threats that considering a choice between relocating within Colombia or seeking protection in Australia or some other third country.
102. The first applicant also argued that her daughter experienced a psychological breakdown due her leaving Colombia and if she did not have such urgent and genuine fears of persecution arising from specific past threats, the first applicant would have returned to be with her daughter. However, the Tribunal’s adverse credibility findings about the first applicant are so deep, that it does not accept this specific claim about her daughter be genuine and finds it to have been another contrivance to augment the applicants’ claims for protection.
103. Neither does it accept the applicants did not fear for the safety of the first applicant’s other family members due to these threats.
104. Nor does it accept the second applicant’s limited corroborating oral evidence to be credible.
105. Accordingly the Tribunal did not accept the applicants hold genuine or urgently or deep subjectively held fears of persecution arising from these specific claims about their political opinion, imputed or otherwise, which are found to be not merely embroideries or embellishments but fabrications, either at the time of their departure from Australia for their home area of Bogota, the time of applying with the Department, now or in the foreseeable future.
106. Neither does the Tribunal have any substantial reasons to believe the applicants, as a necessary and foreseeable consequence of being removed from Australia to their home area of Bogotá, will face a real risk of serious harm based on the same assessment of these specific claims as the first and second applicants found not to be credible or reliable witnesses.
Overall security environment in Bogotá
107. Leaving aside those specific fabricated claims regarding the first applicant’s father and past threats of harm, this decision has been difficult to reach given the relative complexity and fast moving events pertaining to Colombia’s security situation and political developments.
108. It is also accepted the first and second applicants do hold genuine or actual political opinions that are against the now disarmed FARC movement, armed left wing extremism and authoritarian or revolutionary socialism in general, although they do not claim to have held or hold any political party memberships or associations.

As discussed above, subject to the applicants’ comments and further submissions, including other country information, the Tribunal may rely or partially rely on this country information to affirm the decision not to grant the applicants protection visas, in this specific regard.

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Immigration
Administrative Law
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Citations

1602952 (Refugee) [2018] AATA 4556

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

MIMA v Rajalingam [1999] FCA 179

[2018] AATA 4556

24 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice