1709238 (Refugee)

1709238 (Refugee) [2023] AATA 2840 (16 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms MELANY RAMOS (MARN: 9896522)
CASE NUMBER:  1709238
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Lilly Mojsin
DATE:16 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 May 2023 at 9:07am
CATCHWORDS
REFUGEE – protection visa – Colombia – evidence of human rights abuses – Mapiripan massacre – threatened by paramilitary groups – United Self-Defence Forces of Colombia (Autodefensas Unidas de Colombia / AUC) – Black Eagles – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
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 and Border Protection on 13 April 2017 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Colombia, applied for the visa on 24 October 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant would suffer serious or significant harm on return to Colombia. The applicant appealed that decision to the Tribunal, annexing a copy of the Department decision to his application for review.
The applicant appeared before the Tribunal on 3 November and 4 November 2022 to give evidence and present arguments via Teams Video. The Tribunal had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that the applicant could hear and see the Tribunal Member and interpreter. I was able to interact with the applicant and was able to maintain line of sight and appropriate communication throughout the proceedings.
I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In his PV application the applicant stated that he was born in the city of Bogota D.C. on [date], a Catholic. In [year], he completed senior secondary education studies at [named] School.
When [age] years-old he could not start university as he had to complete military service. One day in July 1998 while he was walking on the streets of Bogota, an Army truck conducted a roadblock, and asked him for his military card. He was detained as he did not have it and was taken to [location], a military battalion, where they forced him to stay for two weeks without being able to contact family. After 2 weeks he was only able to make a call to his mother to mention the situation.
He was forced to do compulsory military service as he could not pay a large sum of money. He was taught how to handle weapons, personal defence, etc. and because of his good performance he was chosen to do [Course 1] at [Battalion 1]. At this [course], he learned how to operate high technology equipment in terms of military communications, handle high-range weapons, intercept and frock the communication of armed groups outside the law.
One day whilst he was doing routine work, [Battalion 1] Colonel Jose Jaime Uscategui, Commander of [Brigade 1] of the Battalion, made a call which seemed suspicious to him. They were using code words used by paramilitary groups in which they revealed coordinates and the names of military officers involved in red areas. He heard a number of calls made by Colonel Uscategui revealing key and precise information on commands. One day he was on night guard shift, when Colonel Jose Jaime Uscategui arrived at the place where he was to find out who was on guard shift at night. He introduced himself in a friendly manner and queried what he was doing in his work with the communication equipment, from there on he no longer heard any more conversations like the earlier ones.
Some of the lieutenants changed the way they treated him, giving him incentives like free weekends, flexible work shifts and invitations to the officers’ casino. One day he went to the officers’ casino and Colonel Jose Jaime Uscategui was there. After some drinks he approached the applicant and in a friendly way talked to him about plans for the future, at the end of his military service.
At the end of December 1998, Colonel Uscategui personally invited the applicant to celebrate New Year’s Eve at the officers’ casino with other officers. He was surprised when he gifted the applicant some camouflaged binoculars. He felt flattered that his superior had this gesture towards him, a young man with little experience.
The following year, the invitations, presents, lunches continued. One day he invited the applicant to go out for a meal. The applicant told him that he could not because he was on duty and he said, “don’t worry, I’ll fix it”. On that day there were officers seated around the table, and he started talking openly and saying that he saw that the applicant had a future in communications and offered the applicant joining a group doing special work, but the applicant could not say anything to anyone, including his mother. He offered the applicant payment with special benefits. As an inexperienced young man, he thought that it was an excellent employment opportunity.
The applicant was nearly at the end of his military service and, after the graduation ceremony, Colonel Uscategui invited the applicant to meet him at a park near the battalion to talk about his future. On that day the Colonel was not wearing military clothes. He was in the company of 2 men, who looked like guards, and were somewhat intimidating. He talked to the applicant about the work that he would be doing with “the group”. That was when the applicant realised that it involved working with the AUC [United Self-Defence Groups of Colombia]. At that moment he became afraid. But he could not express his fear. So the applicant told Colonel Uscategui that he would soon give him an answer. In an aggressive tone he replied, “you cannot think about it too much because I know that you heard my conversations and those of others, so you have no other option but to join my group or I’ll kill you”.
At that time, his family’s address was in the suburb of [name] in Bogota. The applicant could not continue living at that residence for fear that at any moment the AUC people, sent by the Colonel, would take him by force, given that at the battalion they have all his contact details. The applicant was full of fear because the Colonel had his home number. So the applicant had to sleep at his friends’ homes for fear of being located as the applicant had not given him a quick reply.
The applicant tried to avoid meeting people in public places or on the street or other fellow military members. Even then, the applicant received anonymous calls asking for him and the caller/s then hung up the telephone. This was on his home landline.
The military service graduation ceremony was held days later. The applicant met a very trustworthy friend and asked about other fellow members including Colonel Uscategui. That was when he found out that Colonel Jose Jaime Uscategui was sent to command another battalion in the city of Barranquilla, that is in the north of the country and it is far from Bogota. This news encouraged him and he thought that this would end and that he would forget the applicant.
However, the anonymous calls where no messages were left continued coming at his parents’ home. This meant that Colonel Uscategui had his group operating in Bogota. In 2000, he and his family moved to the suburb of [name], which is on the other side of the city, where he felt a bit safer.
He changed his home telephone number and took the necessary safety measures. Four years went by in which there were no threats. In this period, he built up strength and confidence in himself unlike before when he was an inexperienced young man.
In 2004 he began university studies focused on [Occupation 1], as he become interested in technology and how he could apply it to do good.
One day as he was leaving university walking to catch a bus to take him home, he realised that a car was following him. He started walking faster towards a commercial centre where he knew there would be more people and where he would feel safer. Once again, he felt that fear he experienced years earlier, that sensation of fright mixed with apprehension, which is very difficult to explain.
While he was at the commercial centre, two men with weapons hidden on their belts intercepted and started threatening him, telling him that he “had no other option but to join the UAC groups [United Self-Defence Groups of Colombia].” He told them “no, I don’t want to be a member of any group and I’m now trying to get ahead by studying at University”. Then, they replied. “the Colonel is calling for you...you have something of his.’’ They identified themselves with the name of the Black Eagles group. They struggled because they wanted to take him away with them. He made movements to draw people’s attention and that is how people started stopping to see what was happening, and when they let him go he ran away from there.
He began to feel persecuted day and night. He would only leave home to go to university, in private transport like a taxi or his family would take him. He spoke with his lecturers and told them that he could not physically return to university, so they allowed him to complete his university work via electronic mail.
In 2005, he was bored being in hiding, he was not going out, so his uncle told the applicant to go to his house and do some [work] and some other things at his [Occupation 1] company [Company 1]. He was there for a few months, but the threats continued and he decided to leave the job.
He managed to complete his degree somehow and started looking for work. A government company [Company 2] gave him the opportunity to work as a [Occupation 1] [in] the city of Bogota.
Months went by and he began to feel more persecution because the paramilitary groups infiltrated the government. They would leave him notes on his work table saying “we have not forgotten you.” After those threats, he started sleeping in the homes of different friends because he did not want to get his family involved.
He was forced to change jobs, thinking that he would be safe in a private company. He worked for another [Occupation 1] company [Company 3]. But the threats and persecution did not stop, they left threatening notes...now they said “if you’re a snitch (slang term for informer) we’re going to kill you”, i.e. if he talked about what he heard when he was in the battalion. So, it was clear that the Colonel and the Black Eagles were after him to kill him or get him to join them, which he would not do. He preferred death.
At a Department interview the applicant stated:
His parents separated when he was aged 12 years. His mother has remarried, she has been
living in [Country 1] since 2012 and he Skypes with her daily. He has not been in contact with his
father (living near Bogota) for a year. His sister is a [occupation] in Bogota. He discontinued his studies in Australia due to financial restraints.
He fears that if he returns to Colombia, the threats against him will continue as the armed
groups have not put down their weapons. For the past 10 years he has had thoughts of being
persecuted and he has had problems with sleeping. Previous Colonel Uscategui, who was in charge of the military course he underwent, is now a General, whom he fears in particular. Former police, military and government personnel are now in paramilitary groups in order to earn more money.
The Colonel knew he was listening to conversations with paramilitary groups in calls made in
the early hours of the morning. After his training he was living at home in a middle class neighbourhood, when he received threatening calls until mid-2000 when the Colonel was posted to the north of the country.
When he was stopped at a shopping centre one day during his university studies he was accosted by two men, one of whom he recognised from a meeting with the Colonel in the park some years earlier. They wanted to take him to join a group and told him that the Colonel had said that he would kill him if he spoke. He had listened to the Colonel's conversations in which he used codes which he had been trained to identify and he feared that as he had been privy to these conversations the Colonel wanted to make him responsible for massacres.
After this incident he feared for his life and so he changed his appearance by having an eye operation to no longer wear glasses and by growing a beard.
When he was working for private company [named] from July 2009 to February 2010 messages were left on his home phone threatening to 'leave [him] dead in a bag'.
He thinks he received no threats of harm between July 1999 and June 2004 because the Colonel was sent north when Uribe7 was in power. Over that time he looked unsuccessfully for work but he avoided going out as he felt threatened and he moved away from his family to stay with friends, 'trying to adapt'.
When he visited a cousin in [Country 2] in 2008 he did not think of remaining there because he hoped things would change and he could continue his studies and have a family. His mother had suggested the visit and she did not intend that he would stay there. He did not apply for asylum when he visited [Country 3] in 2007 as he had read that sub-groups of paramilitary groups operated all over [that part of the world] and [Country 3] does not respect human rights and are offensive regarding South American people.
The last time he was threatened with harm if he did not join an Autodefensa (AUC) group was in 2010. However, open trials go on for years where any matter can be brought up that might incriminate the accused person and anyone on trial wants to stop any potentially incriminating testimony. He fears he could be targeted for harm because when he listened to the Colonel's conversations he heard coordinates and names of potential candidates for the country's Presidency and other details. He could be a potential informant in a trial involving a paramilitary group.
Even though this goes back 18 years, the groups still exist and fear having trials initiated against them. The groups are intransigent - either you join or you are killed. He cannot trust the government which can be manipulated and he would not know who to contact to help him if need be. He knows of informants called upon during a trial to have been killed afterwards and people who have been killed over trials that were held 15 years ago.
Uscategui was aged about 35 years in 1999. There are politicians involved in paramilitary groups and those facing trial do not want testimony about their movements or actions years ago which might cause them trouble. He held key information that could affect the General's trial. The Black Eagles who have killed many victims have support from people in power.
The advisor’s submission to the Department of 7 April 2017 additionally stated that Uscategui’s son is determined to prove his father innocence, he has been involved with other politicians, including the support of the current President of Colombia. Associations defending General Uscategui and his son went on hunger/starvation in order to support his father innocence. The submission annexed a number of articles regarding the Mapiripan massacre and Uscategui’s role.
In a pre-hearing submission to the Tribunal, the applicant’s advisor stated that the applicant fears persecution still in Colombia due to the AUC (United Self Defences of Colombia) now known as Black Eagles paramilitary group still operation in Colombia with more power, as well as General Uscategui still appealing his innocence. In April 2022, the Special Jurisdiction for Peace JEP will review his sentence. The AUC was demobilized in early 2006 and its former highest ranking leader was extradited to the USA in 2008. However. the successors of the AUC such as the Black Eagles continue to exist and send death threats have using its name and operating along Colombian territory.
As the applicant did not join to paramilitary group AUC-Black Eagles, he was named by the Paramilitary as a military target, due to the high level information that he heard when he was in [Battalion 1]. General Uscategui and the Black Eagles believe that the applicant has evidence of those calls that he heard when he was at [Battalion 1]. In mid-1999, he was threatened to be killed or given the option to join the paramilitaries group by General Uscategui and members of the (at the time known as) AUC members.
At Department interview, the applicant declared that he heard calls in relation to actions of General Uscategui, when he was at [Battalion 1] and heard General Uscategui's talk in code using paramilitary codewords and revealing coordinates.
The applicant on his return would be exposed to threats executed by the old paramilitary group Black Eagles as he would be a potential witness providing a testimony against the General Uscategui. This compromises General Uscategui in his intentions to prove his innocent and the Black Eagles would execute all in their power to eliminate the applicant, resulting in a death sentence for him. He will be arbitrarily deprived of his life, based on the threats received by the paramilitary group Black Eagles which operates in the whole territory of Colombia. He was declared military target by the paramilitary group Black Eagles therefore there is a high indication that the paramilitary Black Eagles threatens people under any circumstances against their will.
Enclosed with submission various articles:
·     JEP will review the conviction of General (r) Jaime Humberto Uscategui for the Mapiripan massacre
·     JEP admitted the review of the sentence against retired General Jaime Humberto Uscategui Ramfrez
·     The paradox of the Uscategui by the JEP
·     Colombia: Urgent government action needed as rising violence in rural areas gravely impacts human rights - UN report
·     Amnesty International Colombia
Tribunal hearing 3 November 2022
The applicant told the Tribunal that he is not married, has a sister in [Country 4], his mother lives in [Country 1] and he does not have contact with his father. He works in [occupation] for a large [company], learning on the job. He has a Bachelor’s [degree], from a technical school and then a university qualification.
The applicant commenced compulsory military service after he turned [age], in about July 1998. He commenced in the [number] contingent and was in [Unit 1]. He learnt how to handle a weapon, anti-explosives and the normal things you learn when one goes in the army. He stood out during his service and he joined [Unit 2]. He joined [Unit 2] about four months after commencing military service, in about September or October of that year.
[Unit 1] is [Battalion 2], [Brigade 1]. [Unit 2] are a different [Battalion]. He was a member of the military base in [Battalion 1] [Brigade 1]. He was there for three months and it was intensive, they learnt about communication, they learnt how to fight urban guerrilla warfare. It was an elite unit. He specialised in communications. After three months he worked in telecommunications. There were 23 soldiers who had completed the training and came back to their brigade with specialisations. His job was communications and intercepting communications on behalf of his [Battalion 1] [Brigade 1]. There was a high level of conflict at that time. Toward the end of November 1998 he went back to [Unit 1], [Battalion 2] [Brigade 1].

I put to the applicant that the documents he provided indicated that on [date] July 1998 he commenced his military service and on [date] October 1998 he completed the requirements to be a [Unit 2] officer. He then he undertook a three-month intensive course which would have finished in mid-January 1999 so that he returned to [Unit 1] [Battalion 2] [Brigade 1] at that time. He said he remained in that role until he completed compulsory military service on [date] July 1999. His graduation was held about [date] July 1999. I confirmed that the photos he had sent to the Department appearing to be on graduation day were taken on [date] July 1999.
I put to the applicant that he provided a document, ‘Tarjeta De Resavista’, that stated he completed military service on [date] May 1999. He said ‘yes’, he doesn’t understand why it has [date] May on it, but people who are eligible to vote, graduate one month earlier. I noted that the document also said that he completed his military service on [date] July 1999 and received an honourable mention [five days later in] July 1999. He suggested it was the date that they wrote the document but not the day that he actually graduated.
I asked about his position working in a telecommunications role, in [Unit 1]. I asked him for the role or title of the position. The applicant responded stating that they were prepared to do training to hear out the different codes or slang the different groups of gorilla or paramilitary groups were using. They would work out which ones needed to be traced. At that time, there were many different [threats]. They would connect ones that were threats as part of their role.
I asked if the role had a particular title. He responded that he was working for the Intelligence Section of the Battalion. They would receive files about massacres or different things that happened and it was the arms or intelligence section of the Battalion.
I asked why the applicant did training to be a [Unit 2 soldier], if he went into the intelligence section of [Unit 1]. He responded that 23 soldiers were chosen to do the initial course and he stood out. He really liked doing communications and he replaced another soldier who was finishing his service. He didn’t change battalions at all in this role.
After he finished his military service in 1999, he wanted to find work but it was difficult because he was receiving threats. He had to move from one place to another. He suffered not only for himself but his mother and sister because they all became a target.
He found work when he started working at university. He first worked at [Company 1], around May 2004, a [Occupation 1] job and he had to study via the Internet. Direct threats started coming at his work, so after about eight months he changed and worked for a different company in [Industry 1] for about a year and then also worked for the government.
He finished university around December 2009 and worked for [Employer 1], as an [Occupation 2]. He worked for [Company 4] from July 2009 to February 2010, as part of the University, as a [occupation].
I asked him when he was employed for [Company 1]. He said he couldn’t remember exactly, there was a period of time when he didn’t have any work because of the threats. [Company 1] would have been around 2006 to 2007. I put to the applicant that in the PV application he stated that he worked there from July 2005 to May 2009. He said that there was a period when he had to change work, because of the threats he was receiving in the job.
The applicant confirmed that he commenced his degree in June 2004, he went to a private university, the fees were paid by his mother. He worked from January 2007 to May 2009 for [Employer 1] in Colombia whilst at university doing training at a public institution. He was in [field].
I asked when he was in the military if he had to stay in barracks or at-home and he responded it was always in the barracks. They would get permission, maybe three days a month, to go home. Sometimes because of the threats that the Battalion received, they would go for periods of two months where they could not leave the barracks.
I asked what threats he received in the barracks and he responded that around that time a General came close to him and asked him about his role and he very innocently responded. He thinks he manipulated his mind because of his youthful age. He knows because of his role that he had heard certain information. Since then he knew what he had heard.
Asked when the General approached him, he said it was during the training. During the course they would get sent to the Battalion to look at different instruments and learn how to do things and then go back to the Battalion. But everything started in November 1998 when he heard conversations that he didn’t recognise at first, but then he would get invitations and precedents.
Asked whose voice he recognised, he said it was a Colonel at that time and then he went on to become a General. It was General Uscategui. He recognised his voice. It occurred during training. I asked how he knew that it was the Colonel’s voice and he said that when working in communications they use radars that intercept calls within a certain distance. This one was 5 km off the radar and also because the military, especially high-ranking officers, use codes when talking to the paramilitary.
I asked if the Colonel was part of his Battalion and he responded that he was like an added support person to the Battalion because of the crisis that was going on and he was a friend of the President. He was stationed at his barracks because they have rooms for high-ranking members. They heard him speaking to everyone in the barracks. When he first started hearing the conversation, he didn’t talk so much, the other person spoke more. It was a little while before he recognised the Colonel’s voice. He intercepted six of these conversations. During three of them he was convinced that it was the Colonel’s voice. I asked over what period he heard the conversations and he said that they were getting a lot of threats at that time. It was a time when they had to stay in the barracks. It would have been over a month. Perhaps less than a month. When he recognised the Colonel’s voice, it was at a critical time for the guerrillas. They were threatening to take the Presidential Palace. It was during this time that the Colonel came close to him to talk to him. He asked him about his role and it was after that he started be treated differently. He started getting presents. The Colonel also stopped using those telecommunications methods because he realised he had been intercepted. The conversations ceased around the time that the Colonel spoke to him. It was around November or December. At the same time, the applicant was invited to an end of year party with the officials.
The applicant said that he told the Colonel openly about his role, it was to listen to calls. He could not tell what he was thinking but the Colonel might have thought he was recording the calls.
I asked the applicant, being a trainee at that time, if he had someone training him. He said that in the mornings he would do the training, then at night he would stay as a Sentinel, often by himself listening to conversations. Asked why he would do so, he said that it was because they were in a war, they had to listen to all the conversations in the suburbs. They were in [an important Battalion].
I asked him who his trainer was and he responded that there was one other soldier, who was close to finishing his military service and he was training him. I asked if he reported the conversations to his superior and he said that he reported them to his Sergeant. He told him about the Colonel coming to him and talking to him. He understood that they must have something in common so he decided to remain quiet because he only wanted to end his military service.
When he reported the conversations to his superior, his superior said to him “no worries do your work and we will take care of it”. I asked the applicant if he had any more one-on-one conversations with the Colonel until he finished his military service in July 1999. He said at the end of the year party the Colonel came to him and offered him work in a special group that was well paid. He said that no one can know that he is doing this work, not even his mother. That is when he understood that this work must be in an illegal group. That is when he started to fear for himself and his mother because he knew he was a Colonel and a Colonel has a lot of power in Colombia. They had the conversation at the end of year party and then later on the day of his graduation, the Colonel came up to him in a park with two guards and the Colonel said “accept the job or we are going to kill you”.
I asked the applicant to confirm that he spoke to the Colonel at the end of December 1998 and then again in July 1999 at his graduation [in] July 1999. He responded that he talked to him. He had talked to him before and the Colonel would say “have you thought about the position”. The applicant would try to dodge the question and not get close to him and there were other times when he was not in the barracks when he was going on other trips around the country and he would try to avoid him. But it wasn’t until the day of the graduation that he received the threat.
The applicant clarified and said that he spoke to the Colonel at the end of 1998 at a party and again [in] July 1999. He said they also talked in between which is when the Colonel asked him if he had thought hard about the offer. The applicant really felt fear when he was in civilian clothes at the graduation and when the Colonel threatened him.
The one-on-one conversations with the Colonel, between December 1998 and [July] 1999, occurred once at the party, and two more times when the Colonel came to the place he was working to ask him about joining the group. The Colonel said at the graduation “join the group or you are going to die”. Before that he would say “are you joining or not”.
After completing his military service, he worked for his auntie who had a shop. He used to help her and help his uncle by doing deliveries for them. He used to work in other places casually, that were close to his mother or his sister, to keep them safe. He reveived threats at work and they said to him “don’t be a rat or a snitch we know where you live”. These notes were from the Black Eagles. The Black Eagles were ex-members of a paramilitary group. He received these notes, but they weren’t attributed to any specific group. Whilst working for his aunt he received two threats. When working for his uncle he received one threat. He doesn’t know if he would have received more threats because he changed house and changed where he was staying for as long as he could. He didn’t stay somewhere permanently because he didn’t want to put anyone in danger. He got the threats at work and so he left work.
When he worked for [Company 1], he received threats. I put to him that he told the Department that he worked there until May 2009. I asked him in those four years, how many threats did he receive and he said that he received two written threats. But the persecution happened all the time. He went to lunch and he could see people. He knew that this group had a lot of influence and he knew they had specific ways of treating informants.
I put to him that in 2006, during this period of time, he went to [Country 3] and he returned from [Country 3]. He said “yes” it was during that time and his mother said “let’s get out because I don’t want to see you in a bag”. I suggested to him that he couldn’t have been worried because he returned from [Country 3] where he could have sought protection. He said “no” because [organised crime] controls the south and the north of [Country 3]. They control the continent. He spontaneously left the danger but he wasn’t 100% safe, that is why he came to Australia.
I asked him why he felt it was safe enough to return to Colombia but he didn’t feel safe in [Country 3]. He said in [that] continent you don’t feel safe in any place.
I put to him that in January 2009 he worked as a [Occupation 2] with [Employer 1] until May 2009. He said that he was receiving threats at [Employer 1] and that was when he asked for permission to travel with his mother. I put to him that he started work at [Employer 1] in January 2007 and he started working there after he returned from [Country 3]. He said that he needed to come back to speak with them, he had his head full of worries, he couldn’t think of seeing things properly. When he started receiving threats, whilst working at [Employer 1], he felt like his life was in chaos.
I put to the applicant that he had a [specified Country 3] visa. He said “yes” because his mother was working for the Senate of the Republic and the children of workers get a different visa. I put to him that in that five-year period when he was the holder of that [Country 3] visa he could travel to [Country 3] any time he wanted to. He agreed. I put to the applicant that if he was in such great fear when he was working and he was getting notes on his desk and being threatened, he could have easily gone to [Country 3] at any time. He said he didn’t have the money, he wasn’t rich enough to travel whenever he liked and he also needed to face his problem.
I put to the applicant that he again went to [Country 2] in December 2007 and came back to Colombia in January 2008. He responded that it was cheaper than going to [Country 3]. I put to him that he returned to Colombia each time from his trips. He travelled twice and he had the ability to go to a country where he could claim protection but he didn’t do so. He said he didn’t do it because he wanted to finish his studies. He travelled to escape. He loves his country and he didn’t want to be away from his country. But the war and the violence didn’t allow him to be there. He would like to go back but he doesn’t enjoy not feeling safe and he doesn’t like being separated from his family.
I asked whether the Colonel or some other forces were leaving these threats. He said the Colonel works with different groups that act outside the law. They are the ones that take care of or take responsibility for making the threats and treating informants in a specific way.
I asked him which group. He responded that the groups before, they were known as the AUC. Now one of the bigger groups is called the Black Eagles, they are made up of former members. This is public knowledge. The President and other politicians have received threats from them. The Colonial is currently being sentenced to 40 years in prison and he has been asked to be a part of this peace process, it would allow him to be free. He is worried because if he sets foot in Colombia there is a truth that he knows.
The applicant confirmed he heard conversations between the Colonel and another person before the end of December 1998. The Colonel thought that he had heard those conversations and knowing that he had worked in communications, he wanted him to join those groups. At the time there were a few, but it would be the AUC. He didn’t tell him it was the AUC but the applicant already knew that because of the content of the conversations. There was a massacre in a small city called Mapiripan, Colombia, an area controlled by guerrillas. There is a river that is used to transport drugs. That is a very key point because they can go into the interior of the country. The AUC is made up of ex-military. They act outside the law but they kill guerrilla forces on behalf of the military. The army and the AUC work together. There is complicity between the AUC and the military. Some members of the AUC went in military vehicles to Marpirpan where they killed 60 people. They were responsible for forced disappearances.
I put that I did not understand why the Colonel wanted him to join the AUC. He responded “The conversation that I heard is whether the international body or court of Human Rights was going to investigate the matter as a crime against humanity and there were discussions whether they were going to get into trouble and go to prison”. One of the conversations was about the international community reacting to the massacre and another was about him setting the coordinates to get to Mapiripan. He was talking to someone else about that but he couldn’t identify them. He was saying that he had given previously the coordinates of how to get there to another party.
I asked him if Mapiripan was on a map and he responded that the meeting points over land where the army trucks would meet, it was the coordinates of that.
I asked if the massacre had occurred sometime earlier. He responded that it was true. Earlier the International Court of Human Rights hadn’t made a decision as to whether it was a crime against humanity and when they did, they decided that there was a crime against humanity and the Colonel had falsified documents. I asked him if the Colonel had been to court before that time and he said that he was found innocent because he had presented false evidence and false statements. He had a lot of influence to do this.
I asked the applicant if the Colonel was found innocent before he heard this conversation and he said that the Colonel gave false documents to the Supreme Court that found him innocent. But then he heard information that contradicted that. That was why he wanted the applicant to join the group and was asking him what he had heard. They knew who he was, they never forget a face.
I asked him to tell me exactly what the Colonel said. The applicant said that the Colonel started talking about something for five days. They spoke in military terms. They used codes but he understood those codes. They were saying that if the broader military found out that they had sent coordinates that they needed to maintain silence in a way to protect each other. They knew about how many armed men went and a list of the people. It was the meeting points. It was about how they would go about making sure they didn’t leave any trace.
I put to the applicant they didn’t mention any court proceedings in those conversations. The applicant said they did speak about it but not directly. They were using codes. They said that someone was going after them and they were afraid.
Tribunal hearing 4 November 2022
I asked the applicant about the period when he finished military service in 1999 about how his sister and mother became targets. He said he was a member of the Battalion and they had all these details there and details of his family. He was fearful for them.
I put to the applicant that nothing happened to his mother or sister. He agreed and said he moved around, he was living in different places so he wasn’t located at his residence.
I put to the applicant that the paramilitary forces referred to as AUC were being partly demobilised between 2003 and 2006 and it appeared to be implausible that they would be seeking that he join forces with them. He said “yes” but from 2006 the paramilitary from the AUC began regrouping under different names, such as the Black Eagles and the Butchers.
I asked why these new groups would be interested in him specifically because he had said it was the Colonel who was concerned with him. He responded that the military is joined to the paramilitary and all the persons who have anything to do with this are targeted for death.
I asked the applicant why he didn’t notify the Department that he was working for his aunt and uncle after he ceased military service. He responded that they were just informal jobs to help out his relatives and he didn’t feel that it was necessary. I put to him that if he was working even in an informal job he was not in hiding. He responded that he was in effect working for his uncle and aunt so that he wouldn’t have to stay with his parents. But he was in hiding at the same time trying to do something to help his family. I put to him that if he was working people would be able to find him where he was working. He said that they look for information that can be told about them and then the threats come. They may have been gathering the information, that is why he escaped before the acts of violence were committed.

I put to the applicant that the conversation that he heard between the Colonel and someone else where the international Court of Human Rights was going to investigate the matter as a crime against humanity could not have occurred at the end of 1998 or the beginning of 1999 because the court only became interested in this case in 2003. He responded the incursion into Mapiripan had resulted in a lot of slaughter with bodies being thrown into the river. They were not interested in the Court of Human Rights finding out.
I put to the applicant that the Court of Human Rights were not involved at this time, it was the military. The military charged the General and imprisoned him. He said yes because the General presented false proof.
I put to the applicant that he had produced a certificate to the Department, dated 15 January 2003. It was issued by [Unit 1] and indicated that he completed military services as a soldier in [Battalion 2]. It indicated he had joined on [date] July 1998 and completed compulsory military service on 18 June 1999. I asked him why he would be getting a certificate on 15 January 2003. I suggested that he continued in the military as an ordinary soldier until 2003. He said that after one has presented his military service he is kept as a reservist and can be summoned, if required. I put to him that the document didn’t make any sense. He said that he asked for proof of service on that date. He said that he asked that it was expedited on 15 January 2003.
I put to the applicant that he did not apply for PV until six years after his arrival and it could be inferred that he wished to remain in Australia for reasons other than for obtaining protection. He said that he loves his country and he would like to go back. But fear doesn’t allow him to do so. He sought other avenues and one of those avenues was as student. He said that he could see that the general is looking for ways to remain free and he is afraid that if the general is going to be free that threats to his life are going to be renewed. He wants to go back to his country and he wants to be with his family. He kept in touch with what is going on with the general and the threats being made by the Black Eagles and the pamphlets being circulated. It kept bringing back fear for him and he is still fearful.
He fears returning to Colombia because armed groups not only from the capital, but others, may be looking for the Colonel and may want to silence anybody. They may want to silence him because they think he has tape recordings and they might target him as a suspect. They believe that he has tape recordings but he didn’t record anything. Asked how he knows that they believe he has tape recordings he said that when the general spoke to him, he was actually a Colonel at the time. He told the Colonel that part of his job was to make recordings and follow up on terrorists to show their activities. The Colonel may have thought that he was recording him as well stop that is when the Colonel’s attitude started changing. At the beginning the Colonel gave him presence and tried to bribe him with a career inside the military service but the applicant didn’t want to know about that because he wanted a normal straight life. When the Colonel realise this, his attitude changed again. The applicant said that the Colonel and/or the Black Eagles seek to harm him and anybody that they perceive as a military objective.
I asked the applicant to confirm that they wanted to harm him, not because of his race, religion, nationality, political opinion or membership of a particular social group. He said “it’s because of what I know”.
I again put to the applicant that if he was in great fear from 1999 until 2011, when he came to Australia, that he could have travelled to [Country 1] or other countries in the EU visa free, but he never took that action. He responded that he knew that they sent people to the EU, to the states, even to [Country 1], where they would in fact carry out killings and dismember people. But he learnt a new language and felt quite secure in starting a new life here. I put to him that this was his preferred country of choice. He said he came here to study, he came here to forget. He has realised there will never be a change in Colombia and those in power will do what they need to remain in power.
I put to the applicant information pursuant to s.424AA. I explained to the applicant that I proposed to put information to him that would, subject to anything else he might say, form reason or part of the reason for affirming the decision under review. I advised the applicant that he did not have to comment or respond immediately and he could seek additional time to do so, including after the hearing.
I put to the applicant that the person he referred to as the Colonial or General was the former Commander of the 7^th Brigade. The relevance of this information is that he has claimed that this person was in [Brigade 1] and [Battalion 1]. This information is relevant to the review because it is inconsistent. I advised the applicant if I relied on the information on my find that it undermined his credibility and make conclude that his claims were not genuine and affirm the decision under review
The applicant did not seek additional time and responded stating that he was the commander of Brigade number 7 when the massacre occurred in 1997. After that he was withdrawn from that brigade and went to serve under [Brigade 1] because they wanted to protect him. The massacre occurred in Brigade 7 when he was the commander.
I further put to the applicant that the General was arrested on 21 May 1999. The relevance of this information was that the General was arrested and imprisoned and therefore could not have met him after his graduation ceremony in a park with two other men in July 1999. The independent information does not suggest that the General was wandering free and that the General was before the Military Courts at that time. I explained that this information was relevant to the review as it was inconsistent and if I relied on it I make conclude that his claims were not genuine.
The applicant responded that these high officials are in cahoots with the government and they are free to go anywhere. They may appear to be jail for the media but the fact is that they are free to go wherever they like.
I further put to the applicant pursuant to s424AA of the Act that he informed the Department at interview that until mid-2000 the Colonial was posted to the North of the country. The relevance of this information is that the General was imprisoned at this time. He was released between 24 April 2001 and 10 March 2003 and he did not state that anything happened to him during this time. I explained that this information was relevant to the review as it was inconsistent and if I relied on it I make conclude that his claims were not genuine.
The applicant responded “I just want to say to that these people act in groups and he could have had other people. They don’t act alone. They act in groups”
I put to the applicant that between 28 November 2007 and the 23 November 2009, the General was out of jail. He returned from [Country 2] on 15 January 2008. This indicates he did not have fear of harm from the General. I explained that this information was relevant to the review as it was inconsistent and if I relied on it I make conclude that his claims were not genuine. The applicant responded stating that there was a period of time that he didn’t hear any threats towards him until he found out that he had been released.
I put to the applicant that independent evidence indicates that the Black Eagles are a non-cohesive group dedicated to supporting the financial interests of former high ranking military leaders. They have a political bent and a lack of leadership. I express my view that it is implausible that the General could have been controlling them in order to protect his own personal circumstances whilst he was in prison. The applicant responded that in Colombia, everything is possible. There are jails where people live in luxury. Everything is possible.
I put to the applicant that independent evidence suggests that the Black Eagles target human rights groups and political activists, not ordinary citizens. The applicant responded that they might pretend to go after those targets but they are a mafia who get paid by the military.

100. The applicant said that in Colombia groups are going around targeting people and killing them. If he returned to Colombia he would feel very vulnerable. If the Colonel goes under the protection of the treaties he will go free. He fears that he will kill him. He fears what may happen to him because they may believe that he has information.
INDEPENDENT EVIDENCE
101. A chronology of the Mapiripan massacre[1]:
[1]
December 24, 1965: In response to the growth of leftist guerrilla militia, the State fosters the creation of civilian self-defense groups to assist the national armed forces in an effort to defend themselves from militia threats.
1980s: Many of the self-defense groups transition into criminal organizations primarily dealing in the State drug trade. These groups become known as “the paramilitary.”
4 January 27, 1988: In response to the growing problem of paramilitary groups, the State makes it a crime to organize with hired assassins and to traffic military munitions.
5 April 29, 1989: The State suspends legislation allowing private citizens to use weapons previously restricted for use by the Armed Forces.
Early 1990s: Paramilitary groups seek control of the strategic area of Mapiripán, in the Meta Department of Colombia, in the center of the country.
July 12, 1997: One hundred paramilitary members, flying aboard irregular flights, land at an airport near Mapiripán. Several airport dispatchers are tortured for several hours and killed. The State Army allows the planes carrying paramilitary members to land and does not record their arrival, as required by law. Thereafter, the State Army provides transportation for the paramilitary in vehicles normally reserved for military operations. The paramilitary join other paramilitary groups and proceed through various military checkpoints without issue.
July 14, 1997: Upon entering the village of Charras, the paramilitary group United Self-Defense Forces of Colombia (Autodefensas Unidas de Colombia, “AUC”) hands out flyers to the inhabitants threatening to kill anyone who paid taxes to a rival paramilitary group Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, “FARC”).
July 15, 1997: More than one hundred paramilitary, armed with weapons and donning uniforms reserved for military forces, surround Mapiripán. Upon arrival, the paramilitary take control of communications, and began kidnapping, killing, and dismembering the inhabitants of Mapiripán, particularly those identified as sympathizers of the FARC. Given the gruesome nature of the murders, authorities are not fully able to identify the victims. During this time, the AUC imprisons many victims’ next of kin in their homes, and subsequently forces them into displacement.
General Jamie Humberto Uscategui Ramirez learns of paramilitary presence in Mapiripán, but takes no action. The Attorney General’s Office comments that General Uscategui Ramirez demonstrates “complete functional and operational inactivity, despite knowing about the massacre.” Lieutenant Hernán Orozco Castro stated that when it became necessary to send troops to Mapiripán, all available troops had been deployed elsewhere. There is, however, no evidence that troops were needed elsewhere at this time. General Uscategui Ramirez subsequently orders Lieutenant Orozco Castro to cover up this admission of knowledge regarding the existence of the massacre. Furthermore, there is evidence that, during the long and meticulous planning of the massacre, the State knew of the impending attack, but took no action.
July 22, 1997: Members of the Armed Forces arrive in Mapiripán, after the arrival of the media. Much of the evidence is already destroyed.
July 23, 1997: Following significant delay due to General Uscategui Ramirez’s, Lieutenant Orozco Castro’s, and other military members’ noncompliance with Judicial Officers, the Public Prosecutors Office is finally able to enter Mapiripán. They estimate the victim death count at approximately forty-nine.
April 7, 1999: The Attorney General files criminal charges against nine individuals, including two members of the Armed Forces.
August 18, 1999: The High Council of the Judiciary holds that General Uscategui Ramirez and Lieutenant Orozco Castro will face charges of homicide, aggravated kidnappings, falsifying public documents, and terrorism in military court.
February 12, 2001: The High Military Court convicts General Uscategui Ramirez and Lieutenant Orozco Castro, sentencing them to forty months and thirty-eight months of incarceration respectively, and pecuniary damages.
April 24, 2001: General Uscategui Ramirez is discharged from the military forces, and Lieutenant Orozco Castro is “severely reprimanded.”
June 5, 2001: High Military Court releases General Uscategui Ramirez on bail.
June 28, 2002: The National Human Rights and International Humanitarian Law Unit declares the Military Court proceedings null and remands the cases to regular criminal venue. Lieutenant Orozco Castro is also released on bail.
October 28, 2002: Arrest warrants are issued for Arnoldo Vergara Trespalacios, Francisco Enríquez Gómez Bergaño, and Raúl Arango Duque for the crimes of kidnapping, aggravated homicide, terrorism, and conspiracy to commit said crimes.
March 10, 2003: The National Human Rights and International Humanitarian Law Unit files charges against Lieutenant Orozco Castro, General Uscategui Ramirez, and other Armed Forces members allegedly connected with the massacre. The General Jurisdiction Criminal Court again imprisons Lieutenant Orozco Castro and General Uscategui Ramirez.
June 18, 2003: The military co-conspirators of Lieutenant Orozco Castro and General Uscategui Ramirez are convicted. However, as of the time of the Criminal Court’s judgment, Lieutenant Orozco Castro and General Uscategui Ramirez are not convicted, but remain under a pending investigation. The co-conspirators appeal their convictions, but their convictions were upheld.
February 1, 2005: The investigation into the murders continues. The State also awards damages to twelve named victims of the massacre.
Other Relevant Facts. In the early 1990s, the FARC and AUC sought control of Mapiripán due to its strategic location for drug trafficking, planting, processing, and trading. In 1997, Mapiripán was under the control of the 7th Brigade of the National Colombian Army under the command of General Jaime Humberto Uscátegui Ramírez and Colonel Carlos Eduardo Ávila Beltrán. There was also a troop known as the 2nd Mobile Brigade (Special Counterinsurgency Operations Command) under the command of Lieutenant Colonel Lino Hernando Sánchez Prado. From July 8-9, 1997, Colonel Carlos Eduardo Ávila Beltrán was on vacation and replaced by then Major Hernán Orozco Castro.
102. The Washington Post[2] 22 May 1999 reported that
[2]
An army general was under arrest yesterday for allegedly ignoring a town's cry for help during a five-day killing spree by rightist paramilitary gunmen two years ago.
Brig. Gen. Jaime Humberto Uscategui was arrested for "omission" in the July 1997 killings of as many as 30 people in the southeastern town of Mapiripan. Uscategui, 52, is believed to be the highest-ranking active duty officer to be arrested in a human rights case in Colombia, where the military has long been accused of sponsoring right-wing death squads.
REASONS AND FINDINGS
103. On the basis of his Colombian passport, I accept that the applicant is a national of Colombia and is not a national of any other country nor does he have a right to enter and reside permanently in any country other than Colombia. Therefore, I find the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. I also find that Colombia is the applicant’s “receiving country” for the purposes of s 36(2)(aa).
104. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
105. There may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of AAT guidelines on the assessment of credibility. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant's claims may mean that it is feasible an applicant will provide new information when the applicant is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all and recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant's claim is exaggerated does not mean that the entirety of the claim is dishonest.
106. The Mapiripán massacre was a massacre of civilians that took place in Mapiripán, Meta Department, Colombia. The Mapiripan massacre was carried out from July 15 to July 20, 1997. by the United Self-Defense Forces of Colombia (AUC), an outlawed right-wing paramilitary group. On July 12, 1997, two planeloads of paramilitaries arrived at the airport of San José del Guaviare, which also served as a base for anti-narcotics police. The paramilitaries then traveled through territories where the Colombian National Army operated checkpoints. On July 15, 1997, the paramilitaries arrived at Mapiripán. They used chainsaws and machetes to murder, behead, dismember, and disembowel a number of civilians. Because the bodies were thrown into a river, it is unknown exactly how many people died but the U.S. State Department claimed in 2003 that at least 30 civilians were killed[3].
[3] The Mapiripán Massacre “Cover-up”
107. The applicant claims that whilst completing his compulsory military service in Bogota in 1998, he overhead a conversation by a General/Colonel Uscategui [also known as General Uscategui Ramirez], regarding the Mapiripán massacre implicating the General. He claims that Uscategui initially wanted him to join a group doing special work and had given him, and organised gifts and privileges for him, whilst he was doing military service. Uscategui threatened to harm him, at his graduation, in July 1999 for refusing to join a group. Since completing his military service he has been continually threatened with harm. He claims that he fears harm from Uscategui and other paramilitary groups associated with him.
108. I accept that the applicant commenced military service in Colombia in about July 1998, after being picked up and detained by the military, as he could not pay a large sum of money to avoid military service. He served for 12 months and worked in a telecommunications role after his initial training.

109. I am satisfied the applicant is not a witness of truth, who has created his claims in order to obtain the visa sought.
110. Firstly, the applicant claims that Uscategui, commander of [Brigade 1], made a suspicious call, using code words used by paramilitary groups in which they revealed coordinates and the names of military officers involved in red areas. He heard a number of calls made by Uscategui revealing key and precise information on commands. The applicant claimed that he held key information that could affect the Uscategui’s trial. Uscategui subsequently offered the applicant special work with a group and arranged for him to have privileges and gifts.
111. The applicant claims that at the end of his military service and after the graduation ceremony Uscategui arranged an appointment with the applicant at a park near the battalion to talk about his future. Uscategui was not wearing military clothes, he was in the company of 2 men who looked like guards and he talked to the applicant about the work that he would be doing with “the group”. That is when the applicant realised that it involved working with the AUC [United Self-Defence Groups of Colombia]. The applicant was told he had no other option but to join his group or he will be killed.
112. Independent evidence before the Tribunal indicates that on 7 April 1999 the Colombian Attorney General filed criminal charges against nine individuals, including two members of the Armed Forces relating to human rights abuses[4]. On 21 May 1999[5] Uscategui was arrested for "omission" in the July 1997 killings of as many as 30 people in the southeastern town of Mapiripan. On 18 August 1999[6], the High Council of the Judiciary found that Uscategui and Lieutenant Orozco Castro would face charges of homicide, aggravated kidnappings, falsifying public documents, and terrorism, in a military court. On 12 February 2001 the High Military Court convicted General Uscategui Ramirez and Lieutenant Orozco Castro, sentencing them to forty months and thirty-eight months of incarceration respectively, and pecuniary damages.
[4]
[5]
[6] When this evidence was put to the applicant that Uscategui was under arrest, at the time it was claimed he was meeting the applicant in a park, in July 1999, he responded that at the time these high officials are in cahoots with the government and they are free to go anywhere. They may appear to be jail for the media but the fact is that they are free to go wherever they like. I reject his explanation. The arrest on 21 May 1999 and subsequent trial of Uscategui was covered in the international media. I have no evidence before me to support such a claim by the applicant that Uscategui was free to go anywhere at the time. I am of the view it is an invention made by the applicant in order to overcome the independent evidence.
114. Secondly, the applicant claimed that Uscategui was in [Brigade 1]. The applicant was in [Brigade 1]. The independent evidence indicates that Uscategui was the former Commander of the 7^th Brigade. When this inconsistency was put to the applicant he responded that Uscategui was the commander of 7^th Brigade when the massacre occurred in 1997. After that he was withdrawn from that brigade and went to serve under [Brigade 1] because they wanted to protect him. I have no independent evidence before me to support the applicant’s claim. The independent evidence refers to the commander of the 7^th Brigade, Major General Uscategui, being charged by the Attorney-General (Procuraduria)[7]. I am of the view the applicant has created his claim that Uscategui was transferred to [Brigade 1] in order to assist his claims.
[7] Thirdly, Uscategui was arrested on 21 May 1999, released from prison on 24 April 2001 and then imprisoned again on 10 March 2003. The applicant claimed that he was in hiding and moved from place to place after he completed military service July 1999. His evidence is that he worked for his aunt in her shop and received 2 threats, he delivered goods for his uncle and received 1 threat and he also did other casual work until commencing university and a job in May 2004 at [Company 1]. During the time prior to starting university, the applicant does not claim that anything happened to him other than receiving threats, at work, from the Black Eagles. When pressed about the notes he received he said that the notes were not attributable to any specific group. I do not accept as plausible that a person would be in hiding but going to work in his aunt’s shop and doing deliveries for his uncle if he were in hiding, as claimed.
116. Fourthly, the applicant travelled to [Country 3] in 2006 and returned to Colombia. When put to him that he did not seek protection in [Country 3], his response was that [organised crime] controlled the South and the North of [Country 3]. He also said that he returned because he needed to speak to [Employer 1], he had his head full of worries and he couldn’t think of seeing things properly. The applicant went to [Country 2] in December 2007 and returned to Colombia in January 2008, claiming that it was cheaper to travel there than [Country 3]. I put to him that each time he returned to Colombia from these trips where he had the ability to claim protection but he did not do so. He responded that he wanted to finish his studies and he travelled to escape. I am satisfied that the applicant’s return from [Country 3] and from [Country 2], indicates a lack of a subjective fear of harm. Furthermore, whilst he claims that [organised crime] controlled the North and South of [Country 3] this claim is mere speculation and not supported by independent evidence such as DFAT or the UK Home Office.
117. Fifthly, the applicant was the holder [specified Country 3] visa, for five years, allowing the applicant to enter [Country 3] during the currency of that visa[8]. When put to him that he was able to travel there during that five-year period at any time when he wanted to, he agreed and said that he didn’t have the money and he wasn’t rich enough to travel whenever he liked and he also needed to face his problem. I do not accept as plausible that a person who claims to fear harm from paramilitary groups in Colombia and in particular General Uscategui, who the applicant claims was associated with paramilitary groups including the Black Eagles, who was working and whose mother was working for the Senate of the Republic would not have made an attempt to leave Colombia and go to [Country 3], where he would be able to apply for protection.
[8] [Source deleted]
118. Sixthly, the applicant claimed that the conversations that he heard was whether the International Body or Court of Human Rights was going to investigate the Mapiripan “massacre as a crime against humanity and they were discussing whether they were going to get into trouble and go to prison”. One of the conversations was about the international community reacting to the massacre and another was about Uscategui setting the coordinates to get to Mapiripan. He was talking to someone else about that he couldn’t identify them. Uscategui was saying that he had given to another party, previously, the coordinates of how to get there. I put to the applicant that the conversation that he heard between Uscategui and someone else that the International Court of Human Rights was going to investigate the matter as a crime against humanity could not have occurred at the end of 1998 or the beginning of 1999 because the court only became interested in this case in 2003. He responded the incursion into Mapiripan had resulted in a lot of slaughter with bodies being thrown into the river. They were not interested in the Court of Human Rights finding out.
119. The independent evidence before the Tribunal, cited above[9], is that it was not until 7 April 1999 that the Attorney General filed criminal charges against nine individuals, including two members of the Armed Forces. On 22 May 1999 Uscategui was arrested. On 18 August 1999 the High Council of the Judiciary found that Uscategui would face charges of homicide, aggravated kidnappings, falsifying public documents, and terrorism in military court. On 12 February 2001 the High Military Court convicted Uscategui. On 24 April 2001 Uscategui Ramirez was discharged from the military forces, and on 5 June 2001 the High Military Court released Uscategui on bail. It was not until 28 June 2002 that the National Human Rights and International Humanitarian Law Unit declared the Military Court proceedings null. On 10 March 2003 the National Human Rights and International Humanitarian Law Unit filed charges against Uscategui and other Armed Forces members allegedly connected with the massacre.
[9]
120. In light of the independent evidence that indicated that at the end of 1998 and beginning of 1999, when the applicant was in the military, Uscategui had not been charged with any offence. It was not until 2003 that the International Court of Human Rights became interested in the matter as a crime against humanity, I find that the applicant did not overhear any conversation about an International Body or Court of Human Rights investigating the massacre as a crime against humanity. As he did not hear these conversations, I am satisfied that the applicant has created this claim of overhearing Uscategui, discussing charges and or coordinates prior to becoming aware of any criminal charges being filed, is an invention made in order to obtain the visa sought.
121. Seventhly, the applicant did not apply for a PV until 2016, 6 years after his arrival in Australia. When put to him that it could be inferred from this delay that he wished to remain in Australia for other reasons he responded that he sought other avenues to stay utilising a student visa. I accept that Uscategui was released on 6 May 2017[10], he was in prison from 26 October 2009[11]. At the time the applicant applied for a PV, Uscategui was in prison, having been initially sentenced to 40 years and then his sentence was reduced to 37 years. I am of the view that the applicant delayed applying for a PV for 6 years because he wished to utilise his existing visa status.
[10]
[11]
122. I am satisfied the applicant is not a witness of truth.
123. As I do not accept that the applicant is a witness I do not accept that the applicant:
·met or knew General Uscategui whilst undertaking his military service or that he provided any information to Uscategui regarding what he had been doing in the military
·overheard Uscategui speaking about coordinates when naming military officers, intercepted any phone calls made whilst undertaking military service and reported any conversations of Uscategui to his superior officer
·receive incentives or gifts whilst undertaking his military service and attended a party with Uscategui whilst in military service
·was offered to join a group doing special work by Uscategui or threatened by Uscategui
·went into hiding after he completed military service or received anonymous calls on his telephone or received threats from either Uscategui or from groups acting on his behalf
·in 2004 had a car following him when he was leaving University and was intercepted and threatened that he had to join UAC groups [United Self-Defence Groups of Colombia] or the Black Eagles and went into hiding
·was left notes and/or threats by paramilitary groups whilst working at [Company 2] or [Company 3] / [Company 4] or [Company 1]
·changed his appearance by having an eye operation to no longer wear eye glasses and by growing a beard
·feared harm from AUC (United Self Defences of Colombia) or Black Eagles and was named a military target by paramilitary group AUC-Black Eagles
·a potential witness to any proceedings that may be taken against Uscategui

124. Furthermore, I do not accept that armed groups and others are looking for Uscategui or that anyone believes that the applicant has tape recordings or that the Black Eagles or anyone seeks to harm him.
125. I am satisfied the applicant did not suffer any harm in Colombia for what he knows or for any other reason. He made no claims of harm for reasons of his race, religion, nationality, political opinion or membership of a particular social group.
126. I am satisfied that the applicant did not suffer serious harm for a refugee reason in Colombia and he came to Australia, as the holder of a student visa, in order to study.
127. I am required to assess whether the applicant will suffer serious harm, for reasons of his race, religion, nationality, membership of a particular social group or political opinion, on his return to Colombia, within a reasonably foreseeable future.
128. I have found that the applicant did not suffer any harm in Colombia for any reason whilst he resided there. The applicant completed a university education after completing his military service, was employed in Colombia and travelled in and out of Colombia twice prior to his departure to Australia, as the holder of a student visa.
129. The applicant’s claim to fear harm on his return to Colombia is because Uscategui and/or his gangs may believe that he has information or that he would be a potential witness providing a testimony against former General Uscategui. I do not accept that paramilitaries or others including Uscategui have any adverse interest in the applicant, based on any past activities, or that he suffered any harm when in Colombia. The applicant made no claims of harm for reasons of his race, religion, nationality, political opinion or membership of a particular social group.
130. I have considered the applicant’s claims singularly and cumulatively. I am not satisfied that there is a real chance that the applicant will suffer serious harm for reasons of his race, religion, nationality, political opinion or membership of a particular social group, on his return to Colombia within a reasonably foreseeable future.
131. I am required to assess if the applicant, on his return to Colombia, will suffer significant harm.
132. The applicant has claimed that General Uscategui’s son is determined to prove his innocence and the applicant knows the truth about him, he heard high level information when he was in [Battalion 1]. He fears he will be arbitrarily deprived of his life, based on the threats received by the paramilitary group Black Eagles which operates in the whole territory of Colombia. He was declared a military target by the Black Eagles and there is a high indication that the paramilitary Black Eagles threaten people under any circumstances against to their will. Armed groups not only from the capital, but others, may be looking for the General and may want to silence anybody. They may want to silence the applicant because they think he has tape recordings but he didn’t record anything. He fears Uscategui may kill him. I reject all his claims. I have found that he is not a witness of truth in regard to meeting Uscategui or overhearing conversations made by Uscategui when he was in the military and I have found that he was not threatened of harmed by anyone when he resided in Colombia. He has created his fear of harm on his return from Uscategui, paramilitaries and the Black Eagles in order to obtain the visa sought.
133. Colombia is the fourth largest economy in Latin America. From 2000, it enjoyed uninterrupted economic growth until the COVID-19 pandemic caused a contraction in 2020. The applicant left Colombia legally with a passport issued in his own name. He completed his compulsory military service, he had obtained a university qualification and he had work experience in Colombia. He had travelled in and out of Colombia prior to coming Australia.
134. The applicant said that in Colombia groups are going around targeting people and killing them. If he returned to Colombia he would feel very vulnerable. The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life. There is no evidence before me that there are widespread conditions of violence in Colombia[12].
[12] See US State Report Human Rights Practices 2021 Colombia -
135. As I have found that the applicant was not threatened or harmed by paramilitary groups or any others including Uscategui, I do not accept that there is a real risk that the applicant will be arbitrarily deprived of his life or experience cruel or inhuman or degrading punishment or treatment, from non-state actors or the Colombian government, within a reasonably foreseeable future.
136. I have found that the applicant does not have an adverse profile in Colombia and the applicant does not suggest that he has committed any crimes in Colombia. I find remote the risk that he would be subjected to torture, within a reasonably foreseeable future, on his return.
137. The applicant has a completed university [degree] from Colombia and experience working in Colombia and Australia. 'Degrading treatment or punishment' is exhaustively defined to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable and the pain or suffering must be intentionally inflicted. The applicant has been living in Australia since April 2010. I accept that after 13 years he may experience difficulty in obtaining employment/accommodation. I am not satisfied that difficulty in obtaining employment and accommodation in Colombia on return, amounts to cruel or inhuman or degrading punishment or treatment.
138. Having considered the applicant's circumstances singularly and on a cumulative basis, and for all the reasons set out above, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Colombia that there is a real risk the applicant be arbitrarily deprived of life or that the death penalty will be carried out on the applicant; or that the applicant will be subjected to torture or cruel or inhuman treatment or punishment; or the applicant will be subjected to degrading treatment or punishment.
139. Accordingly the applicant does not meet the requirements of s.36(2)(aa).
CONCLUSIONS
140. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
141. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.

142. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
143. The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
Member

CRITERIA FOR A PROTECTION VISA
144. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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, he or she 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.
145. 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 because the person is a refugee.

A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

147. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations

149. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2840

16 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice