1611587 (Refugee)

1611587 (Refugee) [2018] AATA 501 (6 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611587
COUNTRY OF REFERENCE:                  Colombia
MEMBER:Melissa McAdam
DATE:6 February 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 06 February 2018 at 3:10pm

CATCHWORDS
Refugee – Protection visa – Colombia – Political opinion – Progressivist – Left wing politics – Social group – Membership of high profile family member – Creator of a political organisation – Fear of threats and torture by corrupt politicians – Relocation – Lack of satisfactory State protection
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35
SZMWQ v MIAC (2010) 187 FCR 109
SZRTC v MIBP (2014) 224 FCR 570
WAGH v MIMIA (2003) 131 FCR 269
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Colombia, applied for the visa [in] December 2013 and the delegate refused to grant the visa [in] June 2016.
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.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The following is a summary of the claims and information provided by the applicant in his Protection visa application:
a.He was born [in date] in Bogota, Colombia. He submitted a copy of his Colombian passport.
b.His mother, [sister] and one brother are living in Colombia. His father and another brother are in [Country 1]. His brother and [sister] in Colombia are living in hiding.
c.[One of his] brother is being treated for [a medical condition]. His [other] brother has [a] disability with [symptoms]
d.The applicant and his family lived in Bogota until he was about [age] years old. They then spent four years in Duitama. In Duitama his father ran a successful [business]. Guerrillas tried to extort money from his father so the family decided to move to [Town 1] when the applicant was [age] years old. The applicant’s grandparents lived in [Town 1].
e.His parents divorced when he was about [age] years old. He and his siblings then lived with his father. While he has been in Australia his father remarried.
f.His family was known for its generosity. His father would also help people with their legal or social problems.
g.In about 2001 a friend of the applicant’s father, a retired [official], was killed by paramilitaries. His name was [Mr A]. The applicant’s father witnessed the murder.
h.The applicant became interested in politics when he was studying at university. He participated in more than 20 protests. Guerrillas from the insurgency would approach him to try to identify him. Undercover police were also in the protests. He started to notice they followed him and tried to photograph him. Many well-known student leaders were disappearing or being arrested so he decided to keep a low profile. A friend had to flee to [Country 1] when the Colombian police raided her house.
i.His father spoke out against corruption in the government. In 2008 he attended a public meeting [held] [about] corruption by some [government officials]. After that people from the national intelligence agency questioned the applicant’s father about the [corruption].
j.His father supported President Uribe. The applicant developed strong political differences from his father and they both argued a lot. When his [brother] developed [a medical condition] the applicant and his father put aside their differences.
k.His father would call the applicant to tell him he was getting in trouble. His father told the applicant that two [government officials] were not happy with him and people were threatening him. Later the applicant received phone calls from a friend and from his uncle that his father had been threatened.
l.Around the end of 2009 the applicant’s father founded [an organisation], to oversee [government] workings and expose corruption.
m.His father became more involved in politics. In late 2011 he became a [public official] in [Town 1] for the U Party. The U Party was pro-Uribe and was very popular. Its candidate, Juan Manuel Santos, became President of Colombia in 2010.
n.The applicant came to Australia [in] November 2011 on a Student visa.
o.In January 2012 his father started to have problems because he helped a [public servant] file a corruption suit against [an official]. The applicant’s father started to receive death threats. The applicant did not find this out until the end of 2012.
p.A peasant went to the applicant’s father’s house in the middle of the night and told him to stop digging around. His father told the legal authorities about the threat but more threats happened.
q.One day the applicant’s [brother] was walking with a friend when four men on motorbikes stopped and attacked them, [injuring] the applicant’s brother’s friend. The applicant’s brother took his friend to hospital. When the applicant’s brother was leaving the hospital he was attacked again by the same people. A security guard shot at the attackers and they fled.
r.The attackers were tried in court but there was insufficient evidence to convict them. They said they were hired and paid to carry out the attack.
s.Over time the applicant’s father commenced proceedings against many corrupt officials, narco-traffickers, and criminals. In 2012 he assisted in [a] case that turned into a narco-paramilitary case. The applicant’s father discovered that the narco-paramilitaries had funded President Uribe’s re-election campaign.
t.The applicant’s father started to collect more evidence against Uribe. He [obtained] protection and received a bullet proof vest. After an article was published [a government agency] offered surveillance assistance but they didn’t actually provide it. The applicant’s father continued to receive threats.
u.Towards the end of 2012 a man went to the applicant’s father’s house with a gun. The applicant’s family called the police.
v.In 2013 one of two people on a motorbike approached the applicant’s father and told him that if he continued his case against ex-President Uribe then the man would rape the applicant’s father’s daughter and kill his children.
w.The applicant’s father left Colombia in about August 2013. He told the applicant not to return to Colombia.
x.The applicant’s father and [brother] and his father’s new wife went to [Country 2] to stay with an aunt there. They went to the Colombian consulate and received a certificate that they would travel to [a city in Country 2] to apply to the UNHCR.
y.The applicant’s father received further threats from paramilitaries in [Country 2]. The [Country 2] government gave the applicant’s father an emergency passport. They all left [Country 2], with his father’s aunt, and fled to [Country 1] to seek protection. The applicant thinks his father is applying for refugee status in [Country 1].
z.The applicant fears that the paramilitaries who threatened his father will kill the applicant if he returns to Colombia. The Colombian government is connected to the paramilitaries, who are all over Colombia.
The applicant submitted copies of the following documents with his application:
i.Photographs of the applicant with his father and other family members.
ii.[Town 1 government agency] website page listing the applicant’s father, [Mr B], as [public official] representing the U Party (with English translation).
iii.A newspaper article entitled “[Title]”, [in] January 2012 (with English translation).
iv.Documents from the Colombian consulate in [Country 2] indicating the applicant’s father and other family members sought refugee status with the UNHCR.
v.Email from the applicant’s father to the Colombian President stating he and his family had to flee Colombia (with English translation).
Pre-Interview Submission, [April] 2014
The applicant submitted copies of the following documents to the Department, [in] April 2014:
i.A newspaper article in Spanish with an accompanying translation that it is dated [in] October 2011 and entitled “[Title]”. It names the [official of Town 1], [Mr C], as being in trouble for signing dubious contracts worth millions of pesos. [Sentence deleted].
ii.A newspaper article in Spanish with an accompanying translation that it is entitled “[Title]”. [Sentence deleted].
iii.A report in Spanish with an accompanying translation that it is a ‘Crime Report Form’, dated ‘[date]/12/2012’, in [a municipality]. It is a lengthy report outlining the applicant’s father complaints against [different public servants], as well as the lack of action taken to investigate his complaints to date. The applicant’s father also refers to the rape of his son by two men, one of whom has been jailed. The applicant’s father asks for protection because he has information about suspected cases of money from drug trafficking being used in Uribe’s political campaign.
iv.A copy of the applicant’s father’s Tutela in the [Tribunal], dated [in] 2014.
v.An email from the applicant to his Migration Agent in which he writes of a meeting by the three [officials] to hire a hit-man to kill his father. He also refers to the [official] who his father had sent to jail now being free. He attaches untranslated newspaper articles and video links regarding the [officials].
vi.Photographs of the applicant participating and speaking at a large public protest [in] August 2013 at ‘[a location]’; at [an] event [in] September 2013; at [an] event [in] October 2013 organised by ‘[Organisation 1]’; at a Latin America [event] in [ a city in Australia] where the applicant presented an introduction to the political situation in Colombia and information about [Organisation 1]; speaking at a forum in [City 1] [in] November [2013], with invited guest presenters; and participating in a protest at [a location] against [a politician] who had reportedly spoken of praise for General Pinochet.
Departmental Interview, [May] 2014
The following is a summary of the claims and information provided by the applicant in his Departmental Interview:
a.The applicant believes he will be tortured and constantly threatened by corrupt politicians if he returns to Colombia.
b.His father was threatened in Colombia by three [former officials] of [Town 1]. They were [Mr D], [Mr E], and [Mr C]. There was also [government official, Mr F]. The applicant’s father had [Mr C] and [Mr F] investigated. [Mr D] was a well-known associate of [Mr C]. [Mr E] is a person the applicant’s father is charging today. They came into power consecutively apart from one [official] who came in the middle. It was well known [Mr F] was corrupt, he worked with narco-paramilitaries.
c.[Details deleted].
d.The applicant last contacted his family yesterday and spoke to his father. He calls his father about three times a month.
e.The [other country’s law enforcement agencies] [took] his information. The [law enforcement agencies] were interested in evidence which implicated Uribe.
f.The applicant’s brother is receiving [medical] treatment. He has check-ups to see how he is responding to treatment. [Details deleted]. He has had it for one year.
g.The applicant knew of paramilitaries who had financed Uribe’s political campaign. Criminal groups [have] alliances with the paramilitary groups. The applicant went to school with [a number] of their children. The applicant’s father knew of them in his area. There were testimonies and recorded evidence. The recordings are of narco-paramilitaries saying they had financed Uribe’s campaign, and other things. The applicant’s father gave the evidence to the [government official].
h.Proceedings have now been frozen and these people are free. People who complain against them are killed. The applicant’s father has made arrangements to be put in place if he is killed, to safeguard against his assassination.
i.[Mr C] was sent to jail but let out after a few days. He was accused of fraud. The applicant’s father’s cases against the men were secret cases.
j.The applicant believes his father’s phone and email were monitored but he has no evidence of this. This is something common in Colombia. The government gave the applicant’s father a phone. The applicant contacts his father by [but] not on his mobile.
k.The applicant found out in December 2013 that his [brother] was attacked. The second time his brother was attacked was in December last year. The applicant only became aware of the second attack recently.
l.The first time his brother was attacked he was with his friends. The applicant does not know the exact date. It was in 2012 after he took a friend to hospital. The attackers were charged and are free awaiting sentencing. The attackers confessed to the attack and said they were paid to do this. They said this to the applicant’s father, not in court.
m.Every time the applicant’s father presents a case to the court it is frozen and does not progress.
n.The applicant went to [a university in] Colombia. He studied there for [a number of] years. He left there in 2012 without finishing his degree because there was a long strike and his cousin told him about coming to Australia. The strike was against university reforms, fees and privatisation. He came to Australia to learn English. He wanted to be in an English-speaking environment.
o.The applicant is not a communist. He did not join any party as most were socialist communist parties. He participated in the students association but did not want to become militant. Most of his friends were communists.
p.He started discussing politics with local politicians when he was [age] or [age]. His father was not aware of this. He has always had a strange relationship with his father.
q.The applicant is responsible for the formation in Australia of the group ‘[Organisation 1]’. When [a] strike took place in August last year they organised a protest and the group was formed from that. At the protest he met five or six politically minded people and they decided to take action and form the group. They chose a Public Officer and registered the organisation. It has a website under construction. It has a [social media] [page]. In August last year he went to a protest where there were [Colombians] and he gave a speech.
r.The applicant’s organisation has had a strong impact on motivating Colombians in Australia so he is sure the Colombian authorities are monitoring the organisation. The group has communicated through [social media]. They were not aware when they set up the group that there is another group in [another country], set up by the government, called [Organisation 1]. Their mission is to change the country and support human rights and the people. They want to politically educate Colombians. The group has branches in [Australian cities] and other places.
Post-Interview Submission

The following is a summary of the claims and information provided by the applicant in a written submission, dated 21 May 2014. The submission included a further Statutory Declaration by the applicant and a psychological report for the applicant.
The applicant’s Statutory Declaration is summarised as follows:
a.He feels he was given insufficient time to present his information and responses at his Departmental interview.
b.He was heavily involved in the formation of the organisation ‘[Organisation 1]’ in terms of its ideology and planning of activities. He is unable to be a formal member of the group because he is not an Australian permanent resident. Therefore he was not directly involved in the group’s legal incorporation or management of its funds.
c.At the time he left Colombia he did not fear returning to Colombia. It was only after he realised the full extent of his father’s trouble in Colombia at the end of 2012 that he knew it would not be safe for him there. He has had to piece together his case by speaking with his father and receiving information and documents from him by email.
d.His father has received numerous threats. His father made a Crime Report in December 2012 when he was threatened at gun point at his home. His father has taken many precautionary measures in Colombia. He has reported the risks in detail to the [different agencies].
e.[In] 2014 his father initiated a new legal process called tutela, which is an action for immediate protection in the case of violation of a constitutional right. An action for tutela is initiated in a superior court. His father asked the superior court to investigate whether the previous cases he had filed in lower courts about paramilitaries have been dealt with or whether there was corruption by the judges in those cases. He received a letter from the tutela body advising him it has jurisdiction and is investigating the claim.
f.His father has also been the victim of a new legal action against him. While he was in [Country 1] he was subpoenaed to give evidence in cases he had initiated. Because he could not respond to the subpoena he has now been accused of not cooperating with the justice system.
g.His father has received recent death threats from [former officials]. The applicant has submitted recent news reports which clearly name his father and mention the death threats.
h.His father has been warned to “Stop digging. You have family and sons.”
i.[An international organisation] are currently investigating whether they can assist the applicant’s father to leave Colombia.
j.His father is quite naïve. His reckless behaviour has been a source of conflict with the applicant. Problems started between them when the applicant was about [age] years old. His father is extremely religious and the applicant isn’t. His father trusts in religion and thinks he is protected by it.
k.The fact that the applicant’s father has gone back to Colombia does not mean he is not at risk. His father’s father has [an illness], his mother has [another illness], and he has a brother who has [a medical condition] and is [in] hospital. His family require his help and this was part of the reason he returned to Colombia.
l.At the time the applicant’s father returned from [Country 1] the applicant’s brother was [recovering] following [treatment]. He needed periodic checks for which he required a permit from his home area. The health company would sometimes deny the permit so his father would have to sue to obtain the permit for his brother. The applicant’s brother was scared to go to [Town 1] on his own for the permits because he had been violently attacked there.
m.The applicant’s brother was attacked again in [Town 1] in January 2014. He was bashed and his face was disfigured. The applicant heard it was done by the children of [the former officials]. The applicant has submitted photographs of the injuries to his brother.
n.If the applicant returns to Colombia he would continue his political activity in some form.
o.In August 2013 the applicant spoke at the [City 1] [event]. There is also a [video] recording of the applicant speaking at a recent demonstration in [Australia]. It has had a lot of ‘views’. He has been told that his face has been appearing a lot in Colombia.
The psychological report by [a] Registered Psychologist, dated [in] May 2014, contains the following (in summary):
a.The applicant reported his symptoms as nightmares, insomnia, feeling hopeless, headaches, depression, poor concentration, intrusive thoughts and inability to focus upon tasks.
b.The applicant is an atheist and this has caused friction with his family who are very religious.
c.The applicant has symptoms indicative of anxiety and depression. He is receiving counselling [which] he states is helpful.
Statutory Declaration, [June] 2016
The applicant submitted to the Department a further Statutory Declaration dated, [in] June 2016, with the Annexures referred to in the Statutory Declaration. It states the following:
My father's reinstatement as [a public official] in [Town 1]
My father was appointed as a [public official] from 2012 to 2015. He was removed from his position when he went to [Country 2] in 2013. He was reinstated [in] 2014 when he came back and I annex marked "A" a copy of his initial appointment and letter from my father to the [government department] advising of his wish for re-appointment. That appointment now finished [in] 2015.
Father's cousin [Mr G] killed [in] September 2015
My father's cousin [Mr G] was assassinated [in] September 2015. He was a leader against corruption and running for a [role]. I annex marked "B" a copy of a newspaper [reports] dated [in] September 2015 and [dated] [in] September 2015.
I also annex marked "C" a copy of a printed [social media] from ex-president URIBE VELEZ which shows a photograph my father's cousin [and another] [candidate]. [Sentence deleted].
However I do not believe this. I believe it was the paramilitary forces. My father's Cousin [Mr G] was fighting against corruption in the government and I was told by the son of [a named person], who is [Mr G’s] brother, that [the named person] was a supporter and guerrilla of FARC (extreme left) in the past. [Mr G] belonged to the POLO party which was a left party and the extreme left ELN or FARC would not assassinate someone from the left. I believe the extreme right including URIBE VELEZ are using this as a political strategy to create conflict in the left wing political movements and are happy to blame it on the ELN. There are peace negotiations going on and he is against these negotiations. I believe it was the paramilitary forces.
My father's Assessment for protection
There are 3 types of protection granted by the [protective agency]; Ordinary, Extraordinary and Extreme. My father was granted an Assessment for protection in February 2012 as ordinary. However no protection was given at that time by the police.
He was granted further protection [in] March 2013 as Extraordinary for one year (see Attachment 6 of Second Statutory Declaration dated [in] April 2014) and was provided with a bullet proof vest and communication device of a mobile phone.
My father was not safe with the protection given by the [protective agency] and there was a delay in the 2014 application by the [protective agency]. My father made an application to Court for assessment for protection to be completed. My father was constantly at home to protect himself and the Judgement [in] 2014 by the Magistrate (Judge equivalent to a Higher Court in Australia) found that "[quote deleted]." The order by the judge required the assessment to be completed in 40 days and in addition to the previous protection, that a permanent body guard, be granted. Attached and marked "D" is a copy of the front page of the Judgement and the page referring to the paragraph of the above translated and the untranslated full copy of judgement, and a copy the Order dated [in] 2014. He was not given a further document by the [protective agency] for that year.
He was granted a further Assessment for protection [in] January 2016 as Extraordinary for one year. My father was given a bullet proof vest and a communication device to the police. I attach marked "E" a copy of the assessment as extraordinary dated [in] January 2016 by the [protective agency].
My father's business partner [Mr A] was killed in 2001 by [Mr H]
My father witnessed the murder of his business partner in 2001. My father tried to bring an action against the murderer but the police [investigator] would not accept it because it involved the paramilitary, the police and the Military. This is proof and evidence of the paramilitary power and influence over the judicial system. His business partner's family also tried but it never was investigated because it involved Paramilitaries, the police and the military. My father believes he was killed by one of [Mr H’s] paramilitary operatives.
However [another person] was also murdered by [Mr H] in 2006
My father agreed to appear in a trial of another person [who] was allegedly killed by [Mr H]. The trial began in 2015 and was set for [November] 2015. He had previously been granted an assessment for protection in 2014 by the [protective agency] (attachment "D" above) giving him a professional guard, a communication device and a bullet proof vest for 1 year. My father was denied protection to attend that hearing [in] November 2015. A letter to [the Judge] dated [in] October 2015, who was hearing the case, from the [protective agency] refuses a body guard for attendance and I annex marked "F" a copy of that letter. That hearing was adjourned.
Again [in] January 2016 the Judge [requested] my father's appearance at the hearing [in] March 2016 but the [protective agency] indicated refusal to comply with the request. I attach a copy of this letter marked "G" dated [in] January 2016.
[In] December 2015 my father was threatened about attending the court case. A [worker] connected to [Mr H’s] son said "[deleted]." My father had reported this threat and [in] December 2015 the [Court] advised the Government General Attorney's Office of the hearing of the complaint [in] January 2016 by letter. A copy of the said letter is attached marked "H".
My Father's Assessment for INCREASE of protection
As a result of the threat, my father wanted to increase the protection granted [in] January 2016 which was only a bullet proof vest and communication device with police. He wanted security in all his movements such a bodyguard and bullet proof car. He applied again to the [protective agency] and it is still being assessed. Attached and marked "I" is a copy of a letter from the [protective agency] dated [in] April 2016 to my father to that effect. He has been advised the decision will be in approximately 15 days.
Father's action against [Mr I]
I refer to Annexure 3 of my second statutory declaration dated [in] April 2014 about the claim against [Mr I]. My father sued him for corruption about his relationship with narcotraffikers and paramilitaries.
[In] April 2016 the hearing for [Mr I] did not go ahead because of the lack of the witness representative. It was then adjourned to [a date in] May 2016 and my father was requested to appear and I attach marked "J the letter dated [in] April 2016 from the [Court] to my father. My father also received a further letter dated [in] May 2016 from the [Town 1] Police Station [asking] my father to a meeting [in] May to discuss his travel to the hearing [in] May 2016. I attach marked "K" a copy of the said letter.
[In] May 2016 the hearing was heard and the matter is waiting for judgement.
Action against 4 Judges
My father has an ongoing action for corruption against [different judges] dated [in] August 2008. My father at a [meeting] reported corruption against those judges. My father was successful at the first instance where he sued the judges. The judges appealed and they won the appeal and my father was found guilty of [different charges] and sentenced to [several] years jail and a multimillion (pesos) fine A$[amount]. This sentence is extremely severe given the charge. He is suing the Judges again and the case is not finished. A copy of the newspaper report "[Title]" heading only of the first decision and whole article of the second decision is annexed marked "L" dated [in] March 2016 detailing the above.
I refer to my second statutory declaration dated [in] April 2014 and the details under the heading My Political Views and Activities and I want to make clear that I continue to be politically active and during this time I have further educated myself politically and I have become stronger ideologically which leads me to continue to commit to lifelong social causes which I consider just. This is something which I will not put aside in my life.
The above demonstrates that my father's attempts to have protection have been frustrated by the police even when a judge orders such protection. He has received a number of threats to his life and my father is in danger. I will be persecuted and suffer serious harm if I am returned because of this danger. His life is not safe in Colombia and it means that the whole family of the person is also in danger.
My [brother] who is mentally ill was raped and 2 men are in jail and a third one is yet to be charged. I attach a complete copy of Attachment 3 which was not suppled with the first Statutory Declaration and it is marked "M".
My [other] brother was assaulted twice. I attach marked "N" 2 photographs of my [other] brother's injuries. The [worker] in the [store] scared the 4 men away with a pistol but he didn't want to make a statement to the police and no one has been charged. My brother has moved away from my father in [Town 1] and is now living in Bogota for safety. I will also be in danger similar to my brothers.
If I am returned I will also suffer significant harm, my life will be in danger because of the association with my father as outlined above.
Delegate’s Decision
The Delegate found the applicant credible regarding his claims about his father in Colombia. The Delegate considered there was available state protection for the applicant so that there was no real chance of him facing serious or significant harm there.
Information to the Tribunal
The applicant appeared before the Tribunal on 9 November 2017 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant’s father went to [Country 2] but has returned to Colombia because he did not understand the asylum system in [Country 2]. When he arrived in [Country 2] he contacted the Colombian embassy there expecting help. He told the applicant he was also going to contact the United Nations, but the UN told him they do not accept cases in that way.
b.His father told the applicant that people recognised him as Colombian in [Country 2]. He heard that people were looking for him there. [Country 2] is full of Colombian paramilitaries. So he decided to move again and travelled to [Country 1].
c.In [Country 1] his father contacted the [Country 1] governments. The [Country 1] government does not have a well-established system. He ran out of money and could not support himself and find work in [Country 1]. His wife and the applicant’s [brother] were with him. [Country 1] is a very small, poor country. His father was in [Country 1] for maybe only a month.
d.His father also tried to contact [another country’s] government while he was in [Country 1]. He was visited by the [law enforcement agency], or people who identified themselves [as] officers, who asked the applicant’s father for information about ex-President Uribe, and about money from paramilitaries used in Uribe’s campaign. Uribe is now a senator in Colombia.
e.His father returned to Colombia in about March 2013. He was not outside Colombia for long.
f.The applicant’s [brother] is living in Bogota for his safety. The applicant could not live safely in Bogota because he is politically active. He studied at [a university] which is [details deleted]. If he was in Bogota he would resume his political activism. An activist is killed every day in Colombia. The right-wing paramilitaries kill people and do the dirty work for the government. Bogota is not as violent as other parts of Colombia but the paramilitaries are still present there. They drag people outside the city to harm them because they don’t want to create a situation in Bogota.
g.His father is being threatened by the judge linked to the paramilitaries. His father has taken many people to the court. His father is a high profile person and has protection. The applicant fears they will kidnap him and take information from him.
h.If the applicant goes to another region in Colombia the paramilitaries will want to know who he is. The military and the judiciary support the paramilitaries. His father has problems with them. They killed his father’s cousin. They have information and will recognise who the applicant is.
i.The applicant’s brothers and sister are very different from him. His sister is very calm and has not worked much the last year. She just stays in the house and doesn’t go out too much. His brother is younger than he is. Two times he was beaten by paramilitary members. This was when their father became a [public official], in 2012 or early 2013. His father took the paramilitaries to court but they did not give evidence. The applicant thinks they were only jailed for a short time.
j.The applicant’s brother was just walking on the street the first time. When the paramilitaries were beating the applicant’s brother [a person] started to shoot at them. The applicant is not sure where his brother was on the second occasion he was beaten.
k.The applicant’s [other] brother lives with their mother and does not have much contact with their father. The applicant could not live with his mother safely because he is politically active. He would not be able to move freely around Bogota.
l.The political organisation the applicant started in Australia has finished. They would meet in union premises, like [different] offices. The organisation was not linked with them but was similarly left wing.
m.Politically the applicant is a ‘progressist’. He is left-wing. ‘Progressism’ is different from socialism. Socialists say everyone will live in the same way. ‘Progessists’ think democracy can change, and they take an environmental approach.
n.The applicant was asked by people, [from] [a] paper, [to] write an article for the paper. The applicant hasn’t written one because it can be dangerous and it will define him in many ways. He thinks there are big ideas that are powerful which should be spread to the people. He can write about the Colombian conflict. He has met many people involved in politics in Latin America, including some high ranked guerrillas. He thinks the guerrillas are corrupt in Colombia.
o.If he returns to Colombia he will be in contact with the [University] where he studied. He will create alliances. He will write his ideas and develop a plan and spread this to have influence in the next elections. For example through short videos on social media. He has read a lot of books and is preparing himself in Australia. He reads books by [two different writers]. It is quite dangerous to join a group in Colombia. People who join groups become militants. The applicant would prefer to create alliances amongst the left wing parties. He has contacts in Colombia he would work [with].
p.He will be politically active if he remains in Australia. The government in Australia is neo-liberal.
q.The Colombian media is corrupt. They portray left wing people as anarchists who destroy. The paramilitaries create chaos. They go undercover and they are protected by police and by government.
r.The applicant’s mother, [brother], and sister do not have any political activity in Colombia.
s.The applicant would not work with his father because he disagrees with his father’s politics and personality. His father is willing to make alliances that the applicant thinks are wrong, that are against his father’s ideals, for what they can bring.
t.The applicant cannot live in [Country 2] because [Country 2] is politically chaotic. He would have to be in hiding as the intelligence forces are extremely active. He has had many meetings here with the [Country 2] ambassador and consulate. The destabilisation in [Country 2] is from paramilitaries coming from Colombia. The applicant would be identified there. He could be kidnapped by paramilitaries who will extract information from him. The paramilitaries torture people. They will think the applicant has information they want. The applicant has met commanders and generals in Colombia, and ex-guerrillas in Australia.
u.The applicant cannot live in [Country 1] because the paramilitaries can identify him there. They are trained by Colombian paramilitaries. Their control covers [Country 1].
v.When he travelled to [a different country] he was told by the [local] authorities at the airport that he could not apply for protection and that he would be sent back if he did. He did not think of applying for asylum in [another country]. He saw [this country] had a refugee crisis on its borders and that they move people on to other countries. To enter [the region] the applicant will need to prove he is just a tourist, and that he has money and accommodation in [the area]. He would then be allowed to stay for just 90 days.
Post-Hearing Submissions

On 27 November 2017 the applicant submitted the following document to the Tribunal:
i.Typed letter from in[a representative of an organisation], dated [in] November 2017. He writes that this organisation has known the applicant since 2013 due to the applicants involvement and support. The applicant is well known in the Latin American community.
ii.Typed letter from [a representative of a cultural] Social Forum, dated [in] November 2017. She writes that her organisation has known the applicant for a number of years due to his involvement with it in [City 1]. The [Social] Forum works for issues relating to human rights in Latin America. The applicant is in danger in Colombia due to his political ties and activism. The applicant is well-known in the community for his commitment and active membership in solidarity groups.
iii.Typed letter from [a named person], dated [November] 2017 (in Spanish with English translation). She writes she is Colombian and an ex-member of the Communist Youth. She met the applicant in [Town 1]. Her mother and the applicant’s father both tried to expose the drug-trafficking by the [Town 1 official]. She was also [a member of an organisation] at the university. With the support of students such as the applicant they organised events, groups, and marches. Students were being imprisoned and murdered and she was forced to leave Colombia.
iv.Typed letter from [a named person], dated [November] 2017. He writes that he knows the applicant through their involvement with the organisation ‘[Organisation 1]’ and with the [cultural] Social Forum.
On 1 December 2017 the applicant submitted a typed letter from [another witness], dated [in] November 2017. She writes she was politically active in Colombia as a student. She was the victim of threats and harassment against herself and her family. In 2007 she met the applicant who was a student leader and active participant in political events, protests, and rallies, as well as a collaborator with organisations in defence of human rights. Due to the threats against her she came to Australia. In Australia she has worked with Colombian compatriots including the applicant. Together they formed the organisation ‘[Organisation 1]’, to continue their work and raise awareness about the terrible situation in their country. Their activities have been reported in the Australian and Colombian media.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submitted his Colombian passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Colombia. The Tribunal assesses the applicant’s claims against Colombia as his country of nationality and receiving country.
Credibility
The Tribunal found the applicant to be a credible witness. His account was detailed, coherent and consistent. His claims were also well supported by the documentary evidence he submitted and the available country information. For example, the UNHCR’s most recent eligibility guidelines for Colombia[1] refer to the threat to people involved in investigating or exposing corruption in Colombia:
Judges, attorneys, witnesses, lawyers and other persons who participate in legal proceedings and investigations relating to violations of human rights or international humanitarian law that involve members of the public security forces or paramilitary/post-demobilization groups and guerrilla groups, have been killed, kidnapped, subjected to torture, ill-treatment and forced disappearance. The same applies to those investigating corruption, drug trafficking, and land disputes.
…
Depending on the particular circumstances of the case, UNHCR considers that public officials
[1] UN High Commissioner for Refugees (UNHCR), 2015, ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia’, September,
involved in the administration of justice (in particular those involved in investigating: (i) criminal acts committed by one of the NAGs or guerrilla groups; (ii) human rights cases that involve members of the armed forces; (iii) corruption cases; (iv) drug-trafficking; and (v) land disputes), judges and attorneys, as well as witnesses (in particular witnesses in trials against members of NAGs or guerrilla groups) and any other stakeholders in judicial proceedings may be in need of international refugee protection on the basis of their (imputed) political opinion, or on the basis of other Convention grounds.
The Tribunal therefore accepts the applicant’s claims regarding his father’s profile and activities in Colombia; the events involving his father, brothers and other relatives; and his own experiences in Colombia and activities in Australia.
Fear of Harm in Colombia
The Tribunal accepts that the applicant’s father has made a number of powerful political enemies in Colombia. The Tribunal accepts that the threat to the applicant’s father’s physical safety is high so that he is has been provided with a bullet-proof vest and a communication device.
The Tribunal notes that the threats against the applicant’s father have also included the ‘family’ and ‘sons’ of his father. The Tribunal accepts that the applicant’s [brother] has been assaulted on two occasions in [Town 1] by people believed to be connected to enemies of his father.
The Tribunal notes available country information that indicates family members of people identified for reprisal, or as adversaries, are also threatened and targeted for harm in Colombia. For example a 2012 ICC report states:
Forced displacement is caused by different coercive methods used by the FARC, ELN and paramilitaries, including direct threats, indirect threats, murders of family members, neighbours, and friends, massacres, torture, abductions, sexual violence, and other forms of attack against the targeted population.[2]
[2] International Criminal Court, 2012, ‘Situation in Colombia- Interim Report’, November, See also the WOLA Report 2017, ‘Security Situation for Human Rights Defenders in Colombia Continues to Deteriorate’, 19 January,
The Tribunal considers that as a son of his father the applicant would also be at very real risk of serious violence from enemies of his father, wanting to exert pressure or seek revenge on the applicant’s father. The Tribunal therefore finds that there is a real chance the applicant would face serious violence or the threat of serious violence if he returns to his home area in Colombia. The Tribunal finds that such violence and threat amounts to serious harm.
The Tribunal considers that the essential and significant reason for the harm the applicant is at risk of is his membership of a particular social group, namely the family of his father. The Tribunal considers that the applicant’s father is at risk of harm in Colombia because of his political opinion and that the harm the applicant fears derives from this threat. The Tribunal therefore finds that s.91S of the Act does not preclude the applicant’s fear from consideration.
The Tribunal finds that the harm the applicant is at risk of involves systematic and discriminatory conduct, in that it will be done to the applicant intentionally and selectively.
In view of the above reasoning the Tribunal finds that the harm the applicant is at risk of in Colombia amounts to persecution under the Act.
State Protection
The Tribunal notes that the applicant’s father has been officially assessed as in need of protection in Colombia and that he has been provided with some basic means of protection, namely a bullet-proof vest and a communication device to the police. The Tribunal notes that the applicant’s father feels this is inadequate and has registered his need for increased protection with the Colombian authorities. As a result of the continuing threat to him he has restrained freedom of movement because of the lack of satisfactory protection provided. The documentation submitted by the applicant includes [protective agency’s] reports outlining the inability of the applicant’s father to appear as a witness at court trials because the threat of violence persists despite the protective measures provided to him.
The Tribunal also note that the applicant’s brother has been attacked twice despite the authorities’ awareness of the threat to his father and the family.
Available country information has also highlighted the inadequacies of the protection measures supplied by the [protective agency] to people, such as the applicant’s father, who have been assessed to be in need of protection.[3]
[3] [Footnote deleted.]
According to the country information, violence, threats and abuses continue in Colombia with a substantive level of impunity.[4] The 2016 USDOS Human Rights report on Colombia, contains the following:
The three most prevalent human rights problems in the country were impunity, forced displacement, and societal discrimination. An inefficient justice system, with a judiciary in which officials were subjected to threats and intimidation, limited the government’s ability to prosecute effectively many individuals accused of human rights abuses, including high-level state agents and former members of paramilitary groups. The presence of drug traffickers, guerrilla fighters, and other illegal armed groups continued to displace predominantly poor and rural populations.
…
Despite peace negotiations with the FARC, illegal armed groups--including the National Liberation Army (ELN), as well as organized crime groups (some of which contained former paramilitary members)--continued to commit numerous human rights abuses, including the following: political killings; killings of members of the public security forces and local officials; widespread use of land mines and improvised explosive devices (IEDs); kidnappings and forced disappearances; sexual and gender-based violence; subornation and intimidation of judges, prosecutors, and witnesses; infringement on citizens’ privacy rights; restrictions on freedom of movement; widespread recruitment and use of child soldiers; and killings, harassment, and intimidation of human rights activists, teachers, and trade unionists. Illegal armed groups continued to be responsible for most instances of forced displacement in the country.
…
The government made improvements in investigating and trying abuses, but NGO claims continued of impunity for security force members. This was due in some cases to obstruction of justice, opacity in the process by which cases are investigated and prosecuted in the military justice system, and a lack of resources for investigations. Inadequate protection of witnesses and investigators, delay tactics by defense attorneys, the judiciary’s failure to exert appropriate controls over dockets and case progress, and inadequate coordination among government entities that sometimes allowed statutes of limitations to expire, resulting in a defendant’s release from jail before trial were also significant obstacles.
[4] See for example UNHCR, 2015, ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia’, September, pp 19-20,
UNHCR’s eligibility guidelines for Colombia[5] states:
Protective / security measures allowing safe participation as a witness in judicial processes continued to be insufficient. Paradoxically, as the investigations and trials for crimes committed by armed actors strengthen as a result of the creation of the Unit for Human Rights of the prosecutor’s offices, victims and witnesses of human rights violations are reported to face increased security risks.
[5] UN High Commissioner for Refugees (UNHCR), 2015, ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia’, September,
In view of the evidence regarding the lack of effective protection for the applicant’s father and brother, and the country information regarding the ongoing inadequacies of state protection, the Tribunal is not satisfied that state protection is available to the applicant in Colombia.
Relocation
The Tribunal notes that the applicant’s [brother] in Colombia has moved to Bogota for his safety.
The applicant claims he could not live safely in Bogota because he is politically active. The applicant has provided oral evidence about his political activity in Colombia as well as oral, written, photographic and video evidence about his political activity in Australia. The Tribunal has accepted his claims regarding his own political opinion and activism.
In view of the applicant’s activities in Australia and demonstrated commitment to left-wing politics the Tribunal considers there is a likelihood he would be politically active in Colombia if he returns there. Such activity would draw adverse attention, and his identity as the son of [Mr B] is likely to become known amongst those who oppose the left and are otherwise politically antagonistic. The Tribunal notes further that several of the applicant’s father’s enemies are state authorities and/or linked to government, so that they would have access to state resources to try to locate and harm the applicant. The Tribunal considers there is a real chance that the enemies of the applicant’s father would learn of the applicant’s presence and his political activity in Bogota, which is only about [distance] kilometres from [Town 1]. The Tribunal is satisfied there is a real chance the applicant’s father’s enemies would be able to target the applicant in Bogota and would try to do so.
The Tribunal therefore finds that while the applicant’s brother may be safe in Bogota, it would not be a safe relocation option for the applicant, in view of his own likely public and political activity in Colombia.
The Tribunal notes information that armed groups have a presence in much of Colombia, that they control parts of the country, that they are involved in conflicts in parts of Colombia, and that they have checkpoints throughout the country. UNHCR’s 2015 Eligibility Guidelines contain the following in relation to internal flight alternative and internal relocation alternative [‘IFA/IRA’] in Colombia:
In light of the available evidence of serious and widespread human rights abuses by NAGs [New Armed Groups] and guerrilla groups in areas in Colombia where they operate and have a strong presence, as well as the inability of the Colombian Government to provide protection against such abuses in these areas, UNHCR considers that an IFA/IRA is not available in areas where NAGs, guerrilla groups or other armed non-State actors operate and have a strong presence. … Additionally, UNHCR considers that no IFA/IRA is available in areas affected by active conflict in Colombia, regardless of the actor of persecution.
The 2016 USDOS Human Rights Report for Colombia states:
There were no government restrictions on movement within the country. Organized criminal gangs and ELN guerrillas continued to establish illegal checkpoints on rural roads, particularly in the departments of Putumayo, Arauca, Antioquia, and Norte de Santander.
International organizations also reported that illegal armed groups confined rural communities through roadblocks, curfews, car bombs at egress routes, and IEDs in areas where narcotics cultivation and trafficking persisted. According to the UN Office for the Coordination of Humanitarian Affairs, monitoring in the departments where it operated, between January 2015 and August 15, 2016, more than 5.35 million persons faced mobility restrictions that limited their access to essential goods and services due to armed incidents, protests, and geographical factors. The departments most affected were Cordoba, Caqueta, Cauca, and Narino. Of the more than five million persons in those areas, 4.1 million suffered mobility restrictions due to events related to armed violence. The restrictions were generally limited in duration.
On April 1, the Gulf Clan illegal armed group conducted an armed strike in 36 municipalities, killing five persons, blocking five roads, and burning eight trucks. CERAC reported that while four of the killings targeted members of the CNP and army, the majority of the strike activities targeted the civilian population.
Such information highlights the dangers of travel and displacement in much of Colombia. In view of the available information the Tribunal considers that there is no safe relocation option for the applicant in Colombia.
Refugee definition
For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Colombia.
Section 36(3)
The effect of s.36(3) of the Act is that the applicant may be found not to be a person in respect of whom Australia has protection obligations, if he has not taken all possible steps to avail himself of a right to enter and reside in a country apart from Australia, subject to the exceptions set out in ss.36(4) and (5).
Subsections 36 (3), (4) and (5) state:
Protection Obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all       possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia,            including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
      (a)        the non-citizen has a well-founded fear of being persecuted for reasons of race, religion,   nationality, membership of a particular social group or political opinion; or
      (b)       the Minister has substantial grounds for believing that, as a necessary and foreseeable   consequence of the non-citizen availing himself or herself of a right mentioned in   subsection (3), there would be a real risk that the non-citizen will suffer significant harm in   relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
      (a)       the country will return the non-citizen to another country; and
      (b)       the non-citizen will be persecuted in that other country for reasons of race, religion,   nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
      (a)       the non-citizen has a well-founded fear that the country will return the non-citizen to another              country; and
(b)       the Minister has substantial grounds for believing that, as a necessary and foreseeable   consequence of the non-citizen availing himself or herself of a right mentioned in   subsection (3), there would be a real risk that the non-citizen will suffer significant harm in   relation to the other country.
Australian courts have held that s.36(3) does not refer to, or presuppose, a legally enforceable right under domestic law. It is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[6]
[6] MIMAC v SZRHU (2013) 215 FCR 35.
The right to which s.36(3) refers is not merely a right to enter. It must be a right to enter and reside.[7] The right should be construed as a whole.[8] Rresidence suggests something more than just a short or passing visit.[9] Justice Hill observed in WAGH v MIMIA that while a transit visa, for example, would be a right to enter, it would clearly not be a right to enter and reside.[10] Whether a tourist visa is a visa which authorises both entry and (temporary) residence was, in his Honour’s opinion, a more difficult question. The applicants in that case held US visas ‘for the purpose of business and tourism’. Referring to the usual dictionary sense of ‘reside’, his Honour stated that it would be an unusual, but not impossible, use of the word to refer to a tourist.[11] In the same case, Justice Lee took a narrower approach. His Honour held, with Carr J agreeing on this point, that a temporary six month visa issued ‘for the purpose of business and tourism’ would not be sufficient to provide the holder with a legally enforceable right to enter the United States for purposes outside of business or tourism. Their Honours noted that in the circumstances of the case, the appellants would not be travelling to the United States for the purposes of tourism or business and would thus obtain no entitlement to be admitted into that country upon arrival.[12]
Colombians’ rights to enter and reside in other regional countries
[7] WAGH v MIMIA (2003) 131 FCR 269 per Hill J at [64].
[8] SZMWQ v MIAC (2010) 187 FCR 109 per Flick J at [97].
[9] SZRTC v MIBP (2014) 224 FCR 570 per Tracey and Griffiths JJ at [28].
[10] (2003) 131 FCR 269 at [64].
[11] WAGH v MIMIA (2003) 131 FCR 269 per Hill J at [65].
[12] WAGH v MIMIA (2003) 131 FCR 269 at [43], with Carr J agreeing at [75].

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:[13]
[13] 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.
The Andean Community of Nations (Comunidad Andina de Naciones – CAN) includes Bolivia, Colombia, Ecuador and Peru.[14] Chile is an associate member of CAN.[15] The full member states of the Common Market of the South (Mercado Común del Sur, MERCOSUR) are Argentina, Brazil, Paraguay, Uruguay and Venezuela.[16] The associate member states are Bolivia, Chile, Colombia, Ecuador and Peru.[17]
[14] 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 <
[15] Juntos Podemos? Together We CAN: Chile and the Andean Community’s Quest for Free Trade 2007, Council on Hemispheric Affairs, 17 July <
[16] Romero, S 2012, ‘With Brazil as Advocate, Venezuela Joins Trade Bloc’, The New York Times, 31 July <
[17] 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 <
…
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’.[18]
[18] 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.[19]
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.[20]
[19] International Organization for Migration 2007, Free Movement of Persons in Regional Integration Processes, International Dialogue on Migration Intersessional Workshop, 18-19 June, p.8 <
[20] 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 following information is taken from an April 2017 Departmental research report:[21]
[21] Country of Origin Information Service Section, Department of Immigration and Border Protection, 2017, “COL: CI170322134654383 – Relocation – Bogota – Medellin – LGBTI persons – state
… The documentation required to obtain a temporary residence visa under the Mercosur Residence Agreement appears to vary depending on the country, as each country has implemented the agreement differently.
Between 2004 and 2013, nearly 2 million South Americans have obtained temporary residence
visas in one of the nine countries implementing the Mercosur agreement. Argentina, Chile and Brazil have seen the largest increase in permits granted each year; however, a large number of these persons already resided in the host country when the agreement came into force. In August 2016 the Migration Policy Institute (MPI) reported that ‘analyses on the effects of the agreement remain scarce and incomplete.’[22] Nationals of countries that are party to the Mercosur agreement, including Colombia, can obtain a temporary residence visa for a period of two years in other member or associate member country, after which permanent residency can be applied for.
[22] ‘Free Movement in South America: The Emergence of an Alternative Model?’, Acosta, D, Migration Policy Institute, 23 August 2016
…
The Mercosur website provides the following general overview of the application process under the Mercosur Residence Agreement (translated using Google Translate):
You can apply for legal residency:
- Nationals of the countries party to the Agreement who wish to establish themselves in the territory of another country party to the Agreement and submit the application for admission to the country and the documentation required to them before the respective Consulate. For the purposes of legalization of documents, it is sufficient in this case to certify their authenticity, according to the procedures established in the country of origin of the document.
- Nationals of countries party to the Agreement who are already in the territory of another country party to the Agreement wishing to establish it and submit their application and documentation to the immigration authority of that State. In this case, the documents must only be certified by the consular agent of the country of the petitioner, accredited in the country of reception.
…
The MPI states that those wishing to obtain temporary residency in a host country under the Mercosur Residence Agreement do not need to demonstrate employment or sufficient resources.[23] However, if a migrant wishes to apply for permanent residency after two years, they must prove enough resources to sustain themselves in the host state. Panam Post further reports that to obtain permanent residency, ‘one of the main requirements is that the person has no criminal record.’[24]
[23] ‘Free Movement in South America: The Emergence of an Alternative Model?’, Acosta, D, Migration Policy Institute, 23 August 2016
[24] ‘Mercosur Nations Offer the Best Benefits for Migrants in Latin America’, Martin, S, Panam Post, 9 February 2017.
The Mercosur Residence Agreement provides a range of rights to migrants who hold temporary residence visas in their host country, including the right to equal working conditions, family reunification, and access to education for their children.[25] The Mercosur website similarly states that nationals who obtain residence in another member country are ‘entitled to work on equal terms with the nationals of the country where they have obtained their residence.’[26]
Reports indicate that application of the Mercosur Residence Agreement varies across member and associate member states. In 2016, the Organisation for Economic Co-operation and Development (OECD) reported that ‘implementation of the residence agreement is not entirely uniform across Mercosur countries’, noting:
Some impose higher permit fees, some offer better conditions than the residence agreement, and other apply it only to nationals of a reduced group of countries. Recently, Colombia suspended Mercosur visas and permits for nations of Venezuela, in retaliation for the fact that no such permits were being issued to Colombians by Venezuela.[27]
The MPI article similarly states that the Mercosur Residence Agreement is not consistently implemented, noting:
Unlike free mobility in the European Union, where EU law supersedes national law, the
Mercosur agreement is an international treaty implemented by individual countries for
[25] ‘Free Movement in South America: The Emergence of an Alternative Model?’, Acosta, D, Migration Policy Institute, 23 August 2016.
[26] ‘Residir y Trabajar en el MERCOSUR’, MERCOSUR.
[27] ‘International Migration Outlook 2016’, OECD, 2016, p.21
[28] ‘Free Movement in South America: The Emergence of an Alternative Model?’, Acosta, D, Migration Policy Institute, 23 August 2016
themselves. For example, although Chile has received a large number of regional migrants from Ecuador, Peru, and Colombia, it does not apply the agreement to nationals of these countries. Argentina, by contrast, extends the agreement to all other 11 countries in South America, including those that have yet to implement it: Guyana, Suriname, and Venezuela. In turn, Uruguay directly grants permanent residency to those applying for a permit, rather than first offering a two-year temporary one.[28]
The following information is taken from a March 2014 Departmental research report:[29]
…The official CAN website, Comunidad Andina, states that:
The Andean countries have decided to work together to ensure that their inhabitants can move freely throughout the subregion, whether for tourism or work or for other purposes involving a change in their customary place of residence. [30]
The Frequently Asked Questions section of the website emphasises that the elimination of tourist visas and the creation of the Andean passport does not allow for residency rights:
The creation of the Andean passport and the elimination of tourist visas for travel within the Andean Community (Decisions 504 and 503) do not cover the subject of "non tourist travelers." Issues like the migration of students, business people, investors, and artists will be taken up in the medium term, as will that of workers. The topics of asylum, refugees, and displaced persons now being addressed in the United Nations and the Organization of American States are subjects to be dealt with by the Community in the future.[31]
[29] Country of Origin Information Service Section, Department of Immigration and Border Protection, 2014, “Colombia: COL43134 – Community of Andean Nations – Right to Enter and Reside – Peru – Colombia – Ecuador – Bolivia”, 13 March.
[30] ‘Migration’ (undated), Comunidad Andina website <
[31] ‘Frequently Asked Questions – Migrations’ (undated), Comunidad Andina website <>
A 2011 Canadian Council for Refugees[32] report contains the following:
[32] Canadian Council for Refugees, 2011, “The Future of Colombian Refugees in Canada: Are we being equitable?’ Report of the Canadian Council for Refugees delegation to Panama and Ecuador (jointly with the Refugee Council USA) and to Colombia in November 2010”, March.
Ecuador hosts one of the largest concentrations of Colombian refugees, if not the largest. The number of Colombians recognized as refugees in Ecuador exceeds 100,000 people. However, it is estimated that only 1 out of 3 Colombian people in Ecuador apply for refugee status. In other words, approximately 250,000 Colombians live in Ecuador, most undocumented without any legal status. Many more move back and forth to Colombia depending on their own perceptions of the risks that they may face in Colombia.
Formally, the Ecuadorian Government is very pro‐immigrant and refugee. In 1992, Ecuador expanded the refugee definition to offer protection to the broader Cartagena Declaration category of “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed the order public.” This implies that almost every Colombian man, woman and child who has fled to Ecuador seeking protection should be covered by the definition. A further example of Ecuador’s generosity came in 2009, when the government implemented a regularization campaign for refugees. More than 100,000 Cartagena Declaration refugees were accepted.
In this context, it is perhaps surprising that so many Colombians in Ecuador are without status. There are several reasons for this. For some, it is because they are unaware of the laws that are supposed to protect them. More often, it is because people’s previous experience of institutionalized violence makes them wary of the authorities. In addition, documents identifying the holder as a refugee expose the person to discrimination in daily life, since popular attitudes towards refugees do not reflect the official positive stance of the Ecuadorian government.
In fact, there is extreme xenophobia against refugees and immigrants, particularly Colombians.
Furthermore, the immigration authorities in Ecuador have been unofficially trying to prevent people from entering the country. There are more difficulties and obstacles at the border. In these circumstances, desperate people are seeking to enter the country underground – some are even entering through the mountains in order to protect their lives and their families. Having gone through such experiences, Colombian refugees have less confidence in Ecuadorian authorities.
The delegation learned that, for many Colombians in Ecuador, daily live is exceedingly harsh. Many elderly people have nothing to eat, people lack health care or health insurance, employment is very hard to find. Their work permits are limited. The rate of unemployment for the general population in Ecuador is almost 40%; for refugees it is almost twice as high, according to an organization called Asylum Access/Quito.
Refugee women are particularly at risk of sexual violence in Ecuador. Many Colombian women have already experienced sexual violence before they arive in Ecuador. Colombian women are often forced into prostitution in Ecuador, a problem denounced by many NGOs. Overall, the delegation learned that Colombian women, children, afro‐descendants and elderly refugees
are facing or are at risk of facing severe discrimination in Ecuador.
The killing of Colombians is an everyday occurrence, a fact reflected in the newspapers. The UNHCR informed the delegation that 250 Colombian refugees were relocated to Quito due to a report of risk from Colombian armed groups. Quito is considered the only city that can still provide some guarantee of safety. Colombian refugees who were previously relocated to other cities of Ecuador reportedly came under attack. Again, women are particularly at risk.
The Jesuit Refugee Service/Ecuador informed the delegation that they had verified cases of persecution in Ecuador by Colombian armed groups. For instance, the “narcos‐paramilitaries” are fighting for routes to bring the drugs out of Colombia. The paramilitaries, drug cartels and related gangs have a presence everywhere in the country and have all forced Colombians to work for them. Colombian refugees reported to the delegation that there is evidence of FARC cells in many cities of Ecuador. Both Ecuadorian NGOs and Colombian refugees were of the opinion that refugees are threatened and sometimes forcefully recruited by FARC and the paramilitaries. At the Colombian‐Ecuadorian border region, there are invasions by the FARC, who regularly visit the small towns of the area. Another example of the FARC’s control of the border areas is that their hit list of people living in the area regularly appears on the popular social networking site, Facebook. There is a general belief that FARC and paramilitaries informally control some specific border areas.
As Gardenia Chavez, an academic from the “Universidad Andina” said, “Ecuador has always been a corridor for weapons, people, food, and drugs, just name it. It was a corridor for Peru… it was similar corridor for Venezuela… It comes and goes… It is not any different now... It is and has been a corridor for Colombia for the last 60 years… The internal conflict of Colombia is being fought everywhere in Ecuador.”
Many institutions agreed that Colombian refugees are at risk in Ecuador, particularly in the areas bordering with Colombia.
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. [33]
[33] 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.
Consideration of section 36(3) with respect to the applicant

The above information sets out that the MERCOSUR agreement could theoretically allow the applicant, as a Colombian national, 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. In such circumstances the Tribunal is not satisfied that the MERCOSUR agreement gives the applicant an existing right, 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, which the applicant can avail himself of.
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[34] 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 the 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.[35] Article 54 of the Ecuador Human Mobility Act prohibits tourists from working in Ecuador.[36]
[34] See for example the website, ‘How to Peru’, at
[35] See website EcuadorExplorer.com, See website EcuaAssist, at >
The Tribunal considers that if the applicant wanted to enter one of the CAN member countries his immediate ‘right’ to do so is limited to entering as a tourist. The applicant however is not a tourist but an asylum-seeker. He would not be a tourist or intend to be a tourist in the CAN member countries. He 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 a tourist 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 applicant has no 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 applicant has a right to enter and reside within the meaning of s.36(3), 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 applicant has a right to enter and reside in any other country. The Tribunal therefore finds the applicant is not excluded from Australia’s protection obligations by s.36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Melissa McAdam
Member

protection – FARC – paramilitary groups – Regional travel – Mercosur Residence

Agreement”, 18 April.

[2018] AATA 501

6 February 2018

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