1709266 (Refugee)

1709266 (Refugee) [2022] AATA 3812 (10 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms MELANY RAMOS (MARN: 9896522)
CASE NUMBER: 1709266

COUNTRY OF REFERENCE: Colombia
MEMBER:Luke Hardy
DATE:10 August 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 10 August 2022 at 2:28pm
CATCHWORDS
REFUGEE – protection visa – Colombia – particular social group – male homosexual – threats from paramilitary groups – physical assault – killing of former partner – delay in applying for protection – return visit to Colombia – gay hate crimes – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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 dependants.
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 to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [named], is a citizen of Colombia. He arrived in Australia [in] March 2012 and has held different visas over several years. He made a short return visit to Colombia from [November] 2014 to [January] 2015. He lodged a PV application on 24 September 2015. The delegate refused to grant the visa on 12 April 2017. [The applicant] sought review by this tribunal and the matter is constituted to me. I find the application is valid.
[The applicant] appeared before the Tribunal on 14 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Partner A], who is [the applicant’s] partner.
The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish-English Medium.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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.
CONSIDERATION OF Claims and evidence
The Issues
The issue in this case is whether, on accepted evidence, [the applicant] is entitled to protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the matter should be remitted for reconsideration.
Claims to the Department
[The applicant] claims fear of being persecuted in Colombia for reasons of being a gay male in that country. His claims have nexus with the s.5J(1)(a) criterion “membership of a particular social group.”
For the purposes of this review, [the applicant] submitted to the Tribunal a copy of the delegate’s decision in this matter, containing summaries of [the applicant’s] written and oral claims and discussing relevant facts issues in the matter:
The applicant was born in [Town 1], Santander Sur, Colombia.
His life as a child was not the most pleasant. Since he was a baby, he did not live with his
parents or siblings. He did not know why he was isolated from the family and raised by his maternal grandparents. They lived on a small farm far from the village, in …[Village 1], [Town 1], Santander, Colombia.
He grew up being a sad child who always felt alone. He did not grow up with brothers who were his support or playmates. In [year], he left school when he was [age] years old. He studied until the [grade] and was then sent to work by his grandparents and therefore did not return to school.
At the age of [age], the applicant was sexually assaulted by his ex-employer. The
applicant did not know what to do or where to go. He kept quiet and kept on working.
The applicant changed paths and the days passed however he felt trapped by the sexual harassment of his ex-employer. Eventually he told his cousin of the same age and she told the applicant's grandparents what had happened.
His grandfather could not endure what happened to him and instead of supporting the applicant he asked him to leave the house. He then became a victim of mockery, humiliation from his co-workers and the community. He was then forced to leave [Village 1] and sought help in [Town 2] where he obtained employment in multiple jobs and in a [business] for a few months. With the little they paid him, he was able to rent a small room and they gave him food.
He also attended a Christian church. On one occasion he met a young woman who owned a small [business 1] in which she invited the applicant to learn [business 1 work], which he accepted and pursued from [specified year] until the end of 1991.
He then found a permanent job which offered a salary at another [business 1] in Santander. Over this period he experienced much discrimination and harassment both verbal and physical due to his sexuality. As a result, he moved to another city called Bucaramanga in March 1997.
The applicant changed jobs to better his knowledge within the [business 1] field. He worked in several [business 1s] including, [two names]. He then managed to open his own [business 1] in approximately 2002.
Between 2002-2003 he pursued studies in [the related occupations]. In April 2014 a young man name [Partner B] arrived in his [business 1] for [service]. They remained in contact while [Partner B] completed his military service. They then commenced an official relationship on 17 November 2004.
They lived together from February 2005 in Bucaramanga. He remained in the military until the end of 2007. As he did not want to return to the military; he requested discharge and then commenced working at the applicant's [business 1] in the role of administrator and customer service. They chose not to make their relationship known due to the fear of discrimination, mockery, verbal and physical abuse and death threats from paramilitary groups seeking to kill homosexuals as their way of social cleansing.
During the end of year holidays in 2007 the applicant and his partner spent time with their
respective parents separately. They made arrangements that [Partner B] would go to their [business 1] on 2 January 2008 to make some repairs before travelling up the coast on holidays together.
While [Partner B] was working in the [business 1] in early January 2008, some men approached [Partner B] and asked into the whereabouts of the applicant. He told them that the applicant was on vacation. They then started enquiring into the relationship [Partner B] and the applicant had together. He told them that he worked in customer service at the [business 1]. They made fun of what [Partner B] said. [Partner B] then stood up for himself and confronted theses [sic] men. These men murmured threats of death.
[Partner B] called the applicant and immediately returned home. He was outraged at these men and informed the police of the events. The police already had information that bands of paramilitaries were operating in Bucaramanga.
[Partner B] then observed some suspicious people walking in front of the [business 1] some days later. Some people had asked for the applicant and wanted to meet with him in the evening, which was not their practice. There was a woman who said she was a client who wanted to go to the applicant's house, as he had invited her, and had been given the address of their house. The applicant never took clients to from the [business 1] to their home for work, therefore he realised that something was wrong and they were possibly looking to kill him for being homosexual.
In March 2008, they moved the [business 1] to [another address in] Bucaramanga where they felt more secure, as policemen would pass by to check the [business 1] and this made them feel safe.
On [a day in] October 2008 [Partner B] went to visit his mother and grandmother who lived in the [named neighbourhood] and the paramilitaries murdered him. On his body they left a note that said, "death to the 'sapo' (toad), we killed him because he is a 'sapo' (toad), the note was signed, [Group 1].
The tragedy for the applicant, his mother and grandmother has been very painful, a pain with no end. Due to the tragedy, the applicant had to close the [business 1] and went to live in Bogota.
The applicant chose not to work with the public given his traumatic experience. The following year in April 2009 he took a small [related] course and met [an employee] who worked at [a named] [business 1], she motivated him to look for work and she recommended him to her manager. The applicant secured a job with the [business 1] in June 2009. The applicant was scared however he was in a safe area of Bogota and assumed that nobody would know who he was. He continued to maintain a low profile at [that employer].
In December 2011 very elegant lady with her security guard approached the [business 1]. The applicant's manager was not working that day; he was working on his own. He was asked to [serve her]. After [he finished] she gave him a tip and left. She then returned to the [business 1] in December 2011 however, with a different security guard. When the applicant was [serving her], he noticed that her escort kept staring at him and kept trying to get his attention. When the lady left the [business 1], he launched himself onto the applicant and said, "I remember you... you worked in Bucaramanga, right?" The applicant denied this and said that he always worked in Bogota. He replied, "Do not lie to me, I remember you. We'll see each other again, goodbye". The farewell was sarcastic and he realised that he was a paramilitary from Bucaramanga.
The applicant was very scared. In the mid January 2012 holidays he returned to the [business 1] to work. When he entered the room he found death threat notes saying, "death to pansies- we have not forgotten you-we will kill you like your toad husband". This was signed [by] the BACRIM.
He went home very upset and cried because the past had returned to his life. His friend [named] consoled the applicant and gave him the idea of leaving the country. He went to a travel agency to get advice. He submitted a visa application by the end of January 2012; he received a visa in February and then arrived in Australia in March 2012.
He believes he cannot return to Colombia because he would be killed by the groups that are
dedicated to social cleansing. They are paramilitaries under the name of [Group 1] and are now united to new groups called BACRIM.
The social cleansing in Colombia will never end because they can never exterminate people like the applicant who are part of society, but they will continue to kill homosexuals little by little,
denying their right to live, work and have their own home freely. ·
The delegate provided the following discussion of [the applicant’s] oral evidence:
The applicant attended his Protection Visa Interview on Friday 17 March 2017 and utilized a Spanish speaking interpreter for the duration of his interview. He conducted himself in a very genuine, honest manner. His written claims were consistent with his oral claims. It was noted at interview that the applicant provided a thorough written summary of his life and experiences from childhood.
It was discussed with the applicant that for the purposes of his assessment, a focus would be
placed on more recent events which took place in his adult life leading up to his departure from
Colombia to Australia.
Overall I accept the applicant's childhood upbringing given his consistent written and oral
testimony. There is no adverse information before me to doubt this claim.
I further accept that the applicant was en1ployed [in his occupation] in various businesses within Colombia up until his departure from his home country. Once again, the applicant spoke in considerable detail regarding his employment history. He also submitted a variety of supporting documentation pertaining to his employment background.
I fully accept that the applicant is homosexual. He explained in detail both orally and in writing
how he came to realise he was homosexual. He further conversed in detail about the long term
relationship he had with his partner in Colombia in which they cohabitated and worked together in a [business 1] for a period of time. At interview, the applicant was asked how he involved himself in the LGBTI community in Sydney. He stated that he is friends with a few foreigners in Sydney who come and go and that he works in a [business 1] in [Sydney]. His response was somewhat general however based on all the supporting information me, and my observations, I am satisfied that he is a member of the LGBTI community.
I am willing to give the applicant the benefit of the doubt that his partner was killed by a
paramilitary group in October 2008. While the applicant did not submit documentary evidence, his oral and written recount was thorough; the applicant appeared considerably emotional at interview when discussing this incident. Accordingly, posed questions concerning this incident remained minimal.
I accept that the applicant may have fallen victim to societal discrimination at some stage during his adulthood in Colombia due to his homosexuality. I am further willing to give him the benefit of the doubt that he may have been approached by paramilitary and/or associated guerrilla groups and threatened at some stage in an isolated incident due to his homosexuality however I am not willing to accept that he was pursued by them continually in any capacity. I am not convinced that he was approached, verbally and physically threatened in December 2011 by who be believed to be paramilitaries. His oral testimony was somewhat vague at various points and lacked the detail required for me to be satisfied that this incident in fact occurred. In addition, he indicated that he received threat letters at his place of employment in January 2012. He did not submit documentary evidence to support this claim however country information stated below does indicate that general threat letters and pamphlets targeting the LGBTI community in Bogota and other capital cities were distributed around this period.
It can be seen from the foregoing that the delegate had no significant concerns as to the reliability of [the applicant’s] claims. The delegate accepted that [the applicant] was homosexual, was physically assaulted as a teenager and suffered intentional discrimination on several occasions based on his homosexuality. The delegate found that [the applicant] might have been verbally threatened by paramilitaries at some point in his adulthood. The delegate accepted that [the applicant’s] former partner, [Partner B], was killed by paramilitaries in 2008.
One of the issues of particular concern to the delegate was [the applicant’s] apparent delay in lodging his PV application, and his voluntary return to Colombia for just over a month in the meantime:
Lastly … the applicant initially arrived in Australia in March 2012. He then departed Australia [in] November 2014 to return to Colombia where he remained until [January] 2015 before return to Australia. In response the applicant indicated that he returned to Colombia in order to get some dental treatment. He had a series of appointments and dental procedures to attend. His reason for returning home was because his dental treatment was cheaper in Colombia than in Australia. The applicant stated that he kept a low profile and did not go outside. However, despite the applicant's responses, I continue to question why the applicant returned to Colombia for over a month if he was in serious fear of harm. This leads me to question the level of harm feared by the applicant overall.
Whatever outstanding questions the delegate had in this regard, they do not appear to have been asked or cited. The delegate refused the PV on the basis of these unspecified “residual concerns regarding the timing of [[the applicant’s]] movements and his significant delay in applying for protection.” In addition, after accepting the bulk of [the applicant’s] key claims whilst finding one of them at least plausible, the delegate held “ongoing residual concerns in regards to the authenticity of the some of the applicant's claims and his motives for applying for protection in Australia overall. The delegate appeared to rely on independent information about a number of major population centres in Colombia being promoted as destinations for international gay tourists.

[The applicant] submitted to the Department a number of independent reports of gay hate crimes in Colombia. These reports were quite current at the time they were submitted.
Evidence to the Tribunal
With all respect, it was my general impression at the Tribunal hearing, [the applicant] presented genuinely in his bearing, grooming and demeanour as someone who, in Colombia and elsewhere, might easily attract imputations to the effect that he is or might be gay. I mention this not as a ground for accepting that [the applicant] is gay, although I do accept on his credible and consistent performance as a witness that is what he says he is, but with regard to how he might be viewed and treated by people, including potentially hostile ones, in Colombia.
Generally, I found [the applicant] in his oral evidence to be a candid, truthful and consistent witness. His claims regarding his sexual orientation and experience of past trauma were strongly supported by the oral testimony of his partner [Partner A], who is an Australian citizen. They have been in a relationship for two years and have become engaged to be married. They reside together. [Partner A], a disability pensioner, described the care he received from [the applicant], particularly in regard to a number of health challenges including [a form of cancer]. [Partner A] described [the applicant] has having occasional night terrors which he, [Partner A], attributed plausibly to past trauma. This last claim was unsupported but I find no reason to doubt it. The evidence of a genuine interdependent emotional relationship added to my impression that I could rely on [the applicant] as a witness of truth in this matter.
The remaining issue, then, is the “real chance” [the applicant]. Relevant to this is an assessment of [the applicant’s]s decision to return briefly to Colombia in 2014 and how he was able to avoid potentially relevant harm.
[The applicant] claims fear of being physically harmed by paramilitaries, members of BACRIM, members of [Group 1], self-styled vigilantes and other homophobes just as he and the late [Partner B] were on occasions before he first travelled to Australia. He claims he might even be killed as [Partner B] was in 2008. Speaking to these claims, he argued at the hearing that life for gay Colombians is still very hard, humiliating and sometimes dangerous, even in the cities with viable social and commercial attractions for passing tourists.
[The applicant] submitted what I take to be genuine documentary evidence of the killing of [Partner B] in a reported “social cleansing” exercise in 2008. He also submitted a number of persuasive reports regarding the gap between reforms in laws affecting the protection of LGBTI+ persons and social practices including enforcement of those laws. These reports, published in 2020, 2021 and 2022, are all detailed and current, describing organised harassment and systematic murder, in some towns and cities, of gay males and transgender females. For example, Reuters[1] reported more than 60 LGBTI+ people killed in Colombia in first eight months of 2020. Queer in the World’s LGBT Rights in Colombia entry for 2022 in fact wans international LGBT tourists not to be blasé about Colombia’s relatively free framework of laws and rights and to take particular care of their personal safety:
It's useful for travellers to be aware of the complicated situation in Colombia before they go there, but they shouldn't be put off by it. There's a thriving gay scene in many of the bigger cities and people all over are friendly and welcoming. While macho and Catholic views still have a big influence on society, this just means that for gay travellers they need to be aware of the situations they're in.
We'd recommend taking extra care late at night, or in rural or less developed areas; don't head off on your own and avoid public displays of affection as these places are likely to be more conservative. As we always say, it's all about the common sense.
[1]
The import of this is that various independent human rights reporting agencies advise against assuming that the existence of laws and the viability of niche tourism market make it safe to be considered gay in Colombia, day-to-day and in the longer term.
I asked [the applicant] to discuss why, in the circumstances, he risked going back to Colombia when he did in 2014. In response, he said he needed dental surgery, not merely dental treatment, and described to me a process involving implants that might well have been prohibitively expensive in Australia. He indicated that between episodes of terror, threats and serious harassment during his years in Colombia before and after the murder of [Partner B] he had had to keep a low profile, minimising social life and avoiding going out in public on his own. He indicated to me that he weighed up his need to replace his front teeth, for quality of life, with the risk of being harmed within the relatively short duration of his stay, which was in Bogotà. He said he confined his movements to a cheap hotel, not going out at night and generally only going about in daytime to get to and from follow-up appointments with the dental surgeon who was monitoring his recovery from surgery on a course of antibiotics. On the information before me, I have no significant concerns about [the applicant] having briefly returned to Colombia. I can also accept that this may have been a trip he delayed for some time, given the extent to which expensive and arguably intensive dental surgery intervention was evidently required. Hence it strikes me as reasonable not to draw overwhelmingly negative conclusions from [the applicant’s] delay in making this short trip or from his concomitant delay in lodging an application that might have prevented him from pursuing the surgery in Colombia within his means to pay for it.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220.
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[5]
[4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[5] Sun v MIBP [2016] FCAFC 52 at [69].
As discussed, I accept that [the applicant] is a gay Colombian male. I give some weight in this matter to the likelihood that his membership of this “particular social group” would be cognisable in Colombian society. I accept as truthful all of his accounts of past trauma, vilification, sexual assault, threats and personal loss, in particular the murder of his lover [Partner B] in 2008. In short he has very good reasons in his past for being genuinely subjectively fearful of being at least cumulatively persecuted in Colombia for reasons of being gay. I accept that [the applicant] has a genuine subjective fear of suffering serious harm in Colombia for reasons of his homosexual orientation.
After due consideration, and for reasons discussed above, I draw no negative inferences from [the applicant] having delayed his application for protection until some weeks after he revisited Colombia for just over a month in 2014-15. I find on the evidence before me that he modified his behaviour in Colombia to avoid harm over the period he was there.
The remaining questions, then, are whether there is an objective basis to the harm [the applicant] genuinely fears, meaning a real chance of it occurring, and whether it can reasonably be regarded as serious harm amounting, even cumulatively, to persecution. Relevant to both questions
On the independent evidence before me, there appears to be a sufficiently widespread lag between legislative reform in Colombia and practical reality there. Whereas I am less confident that individuals and/or groups who have targeted [the applicant] for harm in the past are themselves waiting for him to resurface in Colombia, I am nevertheless satisfied that such groups still operate with impunity not only in more conservative locations in Colombia but also in cities. I find that the harm they inflict is includes harassing, threatening, assaulting and killing gay males and transgender females. I accept that this amounts to serious harm and that the essential and significant reason for the harm is the innate, inherent and immutable characteristics, the sexual orientation and/or gender identity of the persons targeted for the harm. The figure for the first eight months of 2020 alone suggest that this inhumane behaviour continues, at a pace ahead of institutional efforts to reduce it, even in Colombian locations where gay tourists, for example, are invited to feel more comfortable and insulated. The fact that there is an institutional shortfall in keeping ahead of such relevant serious harm leads me to conclude that there is inadequate state protection, even though the state is not required to protect all of its citizens around the clock at all times. The ongoing prevalence of homophobic violence in Colombia is part of the reason why I accept that the chance of [the applicant] being harmed is greater than remote, and therefore real. The other factor relates more to individual factors, unique to this particular case: his manner, grooming and bearing; cognisable characteristics that are innate to his individual personality and nature that he should not be required to repress or alter for the sake of avoiding the harm.
Given that [the applicant] has evidently unresolved trauma, partly arising from the murder of his former partner and his own experience of sexual assault, inflicted on him, paradoxically, because he was seen to be gay, I also accept in this individual case that there is a real chance of mere threats and homophobic taunts amounting in his case to being persecuted.
My findings about the inadequacy of state protection in [the applicant’s] case are notwithstanding evidence of authorities being available at least in principle to receive complaints and having demonstrated willingness to investigate violent harm after it has occurred.
I am not satisfied that internal relocation is an option for [the applicant], given the widespread instances of homophobic violence in Colombia and innate characteristics pertaining to his own individual demeanour, grooming and bearing that would have the potential to alert and incense homophobic gangs and groups wherever he might try to settle.
On the evidence before me, I am satisfied that [the applicant] faces a real chance of being persecuted in Colombia in the reasonably foreseeable future for reasons of his membership of the relevant particular social group identified in this case. His claimed fear of being persecuted is well founded. He is a refugee.
For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
S.36(3)
I am aware that Colombians are able to enter several neighbouring countries without a visa but not satisfied on information before me that this gives them the right to reside in those countries. In any event, laws and practices in several of those countries are not necessarily better to any significant degree for gay males, and are arguably worse than in Colombia itself: Jamaica is a good example. I am satisfied that there are no possible steps that [the applicant] could have taken to avail himself of the protection of a third country. He is not caught by s.36(3).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Luke Hardy
Member

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.
…

[2022] AATA 3812

10 August 2022

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