1710050 (Refugee)

1710050 (Refugee) [2021] AATA 5090 (2 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1710050

COUNTRY OF REFERENCE: Colombia
MEMBER:Rodger Shanahan
DATE:2 November 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 November 2021 at 11:50am
CATCHWORDS
REFUGEE – protection visa – Colombia – imputed political opinion – opposition to Revolutionary Armed Forces of Colombia (FARC) – refusal to join FARC – kidnapping – threatening messages – forced relocation – revenge attacks by paramilitary groups – fear of killing – delay in applying for protection – peace deal with the government – Mercosur Agreement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 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 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 on 21 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Colombia, applied for the visa on 11 December 2015.
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, 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).
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
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.
CLAIMS AND EVIDENCE
The following statements/submission were provided in support of the applicant’s claims:
PV Application statement:
My name is [name], citizenship card [number] issued in [Town 1 in] - Vaile de Cauca (Cauca Valley) - Colombia. my mother is [name], citizenship card [number] and my father is [name], citizenship card number [number]. I am the [position in family], my sisters are [Sister A], citizenship card number [number] and [Sister B], citizenship card [number] issued in [Town 1], these persons are my family.
My date of birth is [date]. I was born in [Town 1] — Voile del Cauca. At that time my parents lived in a small rural area located near the municipality of [Town 1], VOIIC del Cauca which is called [District 1], when I was born that was where my parents took me to live with them, I completed Primary education at [a named school] and secondary education at [a named] High School of [District 1]- [Town 1]. When I was an infant my family and I lived very peacefully at the farm which produced [products] and there was also [livestock], we also had domestic animals like ducks, chickens, etc. My sisters and I grew there with a good education from our parents, who focused on raising honest and good children to live in society, they taught us that in life you have to be good in every way, help others, help yourself, and have a united family.
My father is a good man, he dedicated his whole life to the land, and he also did [specified] work for people in the [District 1] Small Rural Area. My mother dedicated her life to the family, she did the housework, looked after the farm animals and sold lunches and meals to the police officers of the [District 1] Small Rural Area. This was made easier because my house was close to the police station, we felt safe by being near them.
During my childhood and part of my adolescence we would play soccer after high school, everything was good in that small town, we were very free and had total peace and quiet. I helped my father with farm work and [other] jobs; nothing strange ever happened in town, people lived in peace. But as I was growing up things started getting complicated because the armed groups began to have confrontations with the police and amongst themselves; in Colombia we have two types of illegal armed groups, the guerrilla and the paramilitary.
Then, the calmness of the town started disappearing, and with it people began to disappear. People who had been violently killed started turning up, kidnappings began to occur. People started feeling afraid of speaking because the people from my town no longer knew who to greet, if you greeted someone and that person was helping the guerrilla then the paramilitary the enemy of the guerrilla) would come and for no reason whatsoever they could kill entire families and then leave a sign saying that they killed them because they were guerrilla helpers. However, my parents and I stayed in the town trying not to get involved with anyone, to carry on with our lives, living and letting others live.
In 1994 when I was about [age] years-old and studying at the [named] High School, things started getting harder, the continuous guerrilla attacks to the police, the bombarding, cross fire terrorised all the inhabitants. We lived near the police, so we were quite disturbed because amidst the crossfire our house was affected on many occasions, walls were destroyed, part of the livestock was killed. My parents and I thought of selling up and going to settle in the city, but my parents had [children] studying and their only skills revolved around farm work, the land gave us on income so that my sisters and I could study, so we decided to stay there in the hope that the problems would pass.
We hoped that the town would be back to what it was, but as time went by things got increasingly worse, given that the young people who were my friends from childhood started to connect with these armed groups. Some did it by their own choosing and others for money, and others simply had no choice, the armed groups forcibly took them away from their families, and if they resisted that was when people turned up dead, and families were massacred.
I remember one day when I found my mother crying because some guerrilla members had come in and pointed weapons at her as a threat, They tortured her psychologically by telling her that they were going to kill all of us because by selling food to the police officers we were police collaborators. Consequently, she could not continue selling food to the police officers. This was a very painful order for us, as apart from having a good relationship with the police, the income from the food sale also helped us a lot; there was no other choice but to stop selling food so as not to serve the police.
From that time onwards my parents, sisters and I lived in a lot of fear, but we had no option but to remain there. My sisters who were young women and I who was an adolescent felt very afraid because they had already killed a number of my fellow school motes and friends. My parents decided that my sisters should migrate to [City 1], where they would be safer and could study at the university. Being the youngest in the house I needed to continue living with my parents until I became an adult, finished high school and was able to attend a university; that was the perfect plan for my life, the life of a child with dreams for the future.
My parents and I continued with our lives, but [in] October 1996 my life took a different turn. I.wWent on an outing with the friends that l still had left, we went to a farm located about two hours on the way to my town, a very small rural area called [name]. We were playing, bathing in the river, a very nice cascade located inside the bush, called [Landmark 1], when we were intercepted by the guerrilla. It was a group of about 15 guerrilla members who told us to get dressed and follow them. They blindfolded us and we walked for a long time further into the bush.
When we arrived at a camp site they took the blindfolds off and a man dressed in military clothes identified himself as the commander of the "[Group 1]" guerrilla group. They started talking about getting us to work with them, told us that they offered us money, a good future, they said that they would teach us how to handle weapons and defend the town's freedom. My friends and I felt completely scored thinking that they kill us or keep us there kidnapped, but the guerrilla commander told us that they would give us the chance to do it voluntarily, that it would be better to be with the guerrilla so that we and our families would be protected.
The guerrilla commander also warned us not to tell anyone about what happened, they said that they already had our identification details and if we failed they would find us; he told us that in a week's time we should return to the some spot: [Landmark 1] so that we would voluntarily join the guerrilla. Then they blindfolded us and we started walking again for quite a while until they left us near [Landmark 1]. We were a total of six young people, the average age was [age range] years old.
Three of them really liked the proposal because they could not see any other way out or a better future than to be linked to the guerrilla, the other 2 did not want to do it, but were afraid of the possible reprisals. I had lust turned [age] and had not yet completed high school, I was certainly sure that that was not what I wanted to do with my future. I wanted to study and be a professional, [a tradesman] like my father. and without thinking I told my friends: am not going with the guerrilla, l am staying with my parents.
We returned home and I told my parents what happened, with a of fear of what could occur they reinforced my wishes that l should not belong to any armed group. We thought that everything would end once i mode the decision that did not want to go with them to join the guerrilla. Three days later one of my friends [Friend A] received a note sent to his house saying; remember (in plural form) that in 4 days we will meet at [Landmark 1] so that you (in plural form) will join the armed forces of the [Group 1] guerrilla front.
The names of the 6 of us were written on the note. Since on that day they told us that it was voluntary i felt calm
because I already knew that I had made the best decision, 3 of them who were sure that they wanted to go were happy, the other 2 did not want to but had a lot of doubts about what they would do. Two days later [Friend A] received another note saying that they had information about what was happening and what we were deciding, it added that it was no' a matter of whether or not we wanted to go, we were obliged to go with them, otherwise we would pay with our lives and those of our family.
I obviously ran home and told my parents, my father immediately called my sisters who were living in [City 1] to take me in, so I had to leave the town where I grew up and was studying in order to go to the city. All my friends joined the guerrilla armed forces, some were very happy at the prospect of handling weapons and having power and others because they hoc no choice.
A week after I left, my parents received a visit from the guerrilla, which identified itself as being part of the "[Group 1]" guerrilla group. They used a violent approach and very rudely asked them about my whereabouts, they denied knowing where I was and they hit my father in an attempt to get information. My father managed to convince them that he knew nothing, He said that I had left home and they did not know my whereabouts. But they left a written notice telling me never to return to my town because I was a traitor. and if I returned that I would pay with my life forgetting away, it also said that they never forgive, nor forget,
My life in [City 1] began in October 1998. I went to live with my sisters. My [Sister B] was studying [Occupation 1] at [a named] University and my [other] sister who had studied [Occupation 2] was already married. So we also lived with her [family] in an apartment located [at address]. My parents were supporting us financially but it was not enough for us to live separately, however my [Sister A] has always supported us financially and emotionally.
I spent some months without studying, it was difficult given that the school year had already started and was nearly finished, for that reason the school did not take me in. l started working with an uncle who owns the building where we were living. My uncle needed someone to help him with [Occupation 3] work [in] the building and since I was not studying he employed me. l could not communicate with my parents, in those days homes lacked land line telephone connections and least of all mobile telephones, they could not come to see us for fear of being followed and my whereabouts discovered, so I started to make my own life in [City 1].
The following year I looked for a school where I could study, but things got somewhat complicated because my parents' financial support for my education could not reach me, so I could not stop working and the study hours clashed with my work hours. I focused on doing [Occupation 3] work, as it was a closed area and I had no contact with the public only with the residents of the building. In [Occupation 3] the pay was so low that it was barely enough for my personal expenses.
In the year 2000 I focused on learning about [trades] work, a cousin who knew a lot about it was teaching me; then in 2002 I was able to do an intermediate technical, course on [subject] at the [named] Institute. I earned a living doing [Occupation 3] work and the [trade] skills I had learned, although it was not what l wanted to do.
I worked at my [uncle’s] building until January 2005. Working there I felt that my life was stuck and l was not doing what I wanted. I became frustrated and that is when I decided to resign from my [Occupation 3] work and look for new opportunities. In February 2005 I decided to complete my senior secondary studies, I was missing the final 2 years.
I had to study it at an evening school of further studies because I was over [age] years-old. I also felt very sad at being unable to return to my town, I very much missed my whole childhood and above all my parents. I had only been able to see them after very tong intervals of time, it was very difficult to contact them. So I decided to return to [Town 1] and study at the [named college] in the small rural area [named].
In February 2006 I found work at a [business] selling on the field, the work involved travelling. They required a person who knew the [Town 1] Region well. l thought that many years had already passed, i was already [age] years-old, besides i would have time to finish my studies and be close to my parents and acquaintances. I thought that time heals everything and that would rot be residing in my town of [District 1], but in the municipality of [Town 1], which is a more modern city.
I started working with fear but also wanting to strive to make my dreams come true. The job involved selling [products] in the [Town 1] business area, visit [stores] promoting the [products] which [name] and his wife [name] [who was my direct boss] imported from [specified] countries. The Army and the police were in the city at [Town 1]; I felt very good, plus I could see my parents on a continuous basis. [In] July 2006 I graduated from senior secondary school, which was a very happy day as I could complete my studies.
At the end of July 2006 I was promoted or work, I was doing very well as a tied Salesperson, my employer thought that my profile was closer to that of a business adviser. I had to travel from town to town, visit stores located in municipalities near [Town 1], such as [named towns] and some smaller rural areas, amongst them I had to visit [District 1]. I, was afraid of going. I made enquiries, some people were of the opinion that it was very quiet and others said that the attacks were more frequent. I built up courage by telling myself that many years had already passed and that those people would not even remember me.
I decided to return to sell the products. I was not going to [District 1] to live there, just to go in and out, as I had set up residence in [Town 1]. I continued going from town to town. i felt happy to return to see my whole town where I grew up and see people who saw me grow up. I was doing very well as a business adviser, every day I was gaining experience and I found the job easy to do.
At that time my family was already doing very poorly financially, given that those people did not let them work as before, the guerrilla as well as the paramilitary would turn up whenever they pleased and take animals and [products] for their use. My sisters and I would tell my father to sell the farm and come to the city to live with my sisters, but they were so accustomed to life on the land that they did not wish to live in the city. [Details deleted.] [One day in] December 2007 I decided to spend [a day] with my parents. But it was such bad luck that the guerrilla arrived at my parents' house when I was [with them].
To my surprise 2 of my 5 childhood friends who had joined the guerrilla were amongst the guerrilla. They identified themselves as the "Revolutionary Armed Forces of Colombia' FARC (Spanish acronym). They told me "WE DO NOT FORGET' and they tied up my hands and hit me, they did the same to my parents. After being verbally and physically abused for hours I told them that I would go with them with the condition that they release my parents. They let my parents go free, who fled to my [Sister A’s] house in [City 1] leaving behind all their belongings, including the farm and their animals. They took me to the bush tied up and blindfolded, l was tortured and told that they would kill me for not joining them when the commander gave me the order.
They took me to the camp site where they were hiding, it was not the same place as the one we went to when we were very young. there was another man who called himself commander "[name]"...he spoke to me about fighting for the people and insulted me because I had not joined them. My two childhood friends did not approach me, they just looked ai me... on the third of being stuck in a room, like a cell, all of a sudden there was a great commotion, they were running, shouting, giving orders and I was asking what was going on.
Then, [Friend B], one of my childhood friends, came close to the cell and told me that they had been warned about an Army attack.. I begged him: "get me out of here. ..if you leave me the Army will kill me.. .please get me out of here. .,do it for my mother..." [Friend B]. who they called by some other name which I cannot recall, felt sorry for me and let me go. He told which way I should take, to run to avoid being seen by the other guerrilla members and avoid meeting the Army. I ran like I had never done in my life. I was crying ... i felt like they were running behind me. after running for half an hour. I started hearing gun fire and bombs... it was very sad to see my friends in that world...
I arrived at the home of some farmers who knew me from childhood, without asking me they realised that something serious was happening. They gave me something to drink and eat and I asked them to borrow money to travel to the city. I went to [Town 1] and that same evening I went to [City 1], was forced to leave the job I was doing as a business adviser. If the guerrilla had realised that my friend allowed me to go they would have killed both of us, knew that they going to kill me and who knows perhaps my family too.
We put the farm up for sale, but no-one wanted to buy it because it was no longer the best producer and secondly because it was close to the police station. By that time my [Sister B], the [Occupation 1], had come to Australia to study English, she wanted to expand her language skills to have more work opportunities. When we told her what happened and that the entire family was hiding in [City 1] she proposed that I come to Australia by applying for a student visa. She said that Australia was too far for them to be able to chase me. A student application was made to study English in Australia and during that process which lasted about 2 months I had to hide, to avoid being found by them. My parents went with me to live during that time at an uncle’s place in [a named town].
I remember that when we were over there we did not even venture to the door, always afraid and uncertain that at any time they could come for us. My parents were psychologically very unwell, I tried to keep things calm. Approximately in February 2008 I received the good news that my student visa had been accepted and I could travel, so I bought my air fares and came to Australia. I arrived at my [Sister B’s] home in Australia and began to study English, and work as a cleaner for 20 hours per week, that was enough to support myself, buy food and give a little bit of rent money to my sister,
In Colombia the guerrilla was looking for me, they arrived at my parents farm, destroyed everything they found and took some animals. After I left Colombia my parents returned to [City 1] to live with sister, but their financial situation was very difficult because they only knew how to do farm work and given their age no-one gave them any work. Fortunately, my eldest sister who had a very good job became their financial support.
My [Sister B] and 1 barely made enough to support ourselves, we were studying and doing some work by the hour. Once I was in Australia I felt so happy, not being afraid of being killed, I felt safe and I knew that no-one would come to take my life, or torture me physically or mentally. I was given a student visa for six months, I had the opportunity to extend it and continue studying, but unfortunately there was no money for me to renew the visa. My family could not help me, and the money available was used for the trip and the visa. I could not save anything because I barely made enough to support myself. It was another very complicated decision and time in my life. Five months had gone past and in a couple of days I needed to leave, and I knew that to go back meant to he killed. so that is why I decided to stay in Australia without a visa, for which i am sorry.
In addition, my [Sister B] was going through a very tragic moment n her life, [details deleted] and she became very depressed. Everything happened to her at the same time, [details deleted], our parents being limited, my persecution and visa problems. Although at the same time I provided her with a lot of support and company.
In time my sister returned to Colombia. When she arrived in Colombia she found all the problem I had left behind had become a lot bigger. My parents cannot not return to the farm because the guerrilla took it over, now the paramilitary say that I am a member of the guerrilla and that I gave them the farm. The Catima Bloc paramilitary, which then become [Group 2], are now looking for me to kill me. [Group 2] groups together a number of paramilitary groups including the [Group 3], and other emerging ones like the [Group 4].
We have nowhere to go now, my whole family is displaced in [City 1] - Colombia if I were to return to my family I place them at risk of being murdered by these paramilitary groups. Consequently. I cannot return to my country. Colombia, given that the paramilitary has pointed me out as a military target. The neighbouring farmers have told my father that my name is on the list of guerrilla supporters and that they are going to kill me. They have seen this on written notices which have been circulated to the farms and small rural areas of Cauca Valley.
Thank you for the hope you are giving me. I cannot return to my country because the paramilitary are in power, they have not joined the peace agreement, and now as they do not have guerrilla opposition they are becoming much more powerful than before.

The applicant also provided a written submission pre-hearing that essentially claimed that his mother had told him that strangers continually ask her about the applicant’s whereabouts, as did the people who had moved into his parents’ old house. FARC dissidents went to his sister’s house to find him and told her that if the applicant didn’t join them then they would kill him (a notarised statement from his sister was submitted). He claimed that armed FARC dissidents remained active and that if they believed that someone was a military target that person remained one for life. He also claimed that FARC dissidents had infiltrated the country’s organisations and so he could not relocate anywhere without being found.
AAT Hearing
The applicant was asked about his pre-hearing submission in which he claimed that the previous interpreter had cut his answers off, leaving them incomplete. It was put to him and his adviser that no alternate record of the interpreting had been provided, nor an indication as to when he had been cut off. Unless one was received the interview interpreting was deemed to be true and correct. The applicant said that he understood.
The applicant was also advised that a pre-hearing submission had been received that included country information that was not referenced. If he wanted weight to be given to it, he needed to highlight to the Tribunal the relevance of such articles to his particular case. Not much weight could be given to a simple collection of articles without explaining their relevance. The adviser said that they selected country information relevant to him, which was the situation currently in Colombia. It was put to her that its relevance wasn’t explained through the use of footnotes or the like, and she understood that the member required more detailed argument and referencing.
The applicant claimed that if he returned to Colombia he would be killed by FARC because he had refused to be part of the movement. Once someone was a military target for them the only future option is death. He had no other claims. He had this fear from 2002 when he had been taken to [Landmark A].
Asked to outline why he believed the group was interested in him and why they would remain interested in him in 2021, he claimed that they never forgive and want to kill anyone who has run away from them. He is a military objective to them. He had been a young boy and FARC looked for people to recruit and they wanted him to be part of the revolution and wanted him dead or alive. He was about [age] years old and FARC was targeting young kids from small families and he had only two sisters who had moved out of the town. They wanted young men to carry weapons and continue the war.
Asked what year it was, he said it was in 1994 (he said previously 2002 but it had happened a long time ago). Their group was part of FARC and then dissidents. He was kidnapped and taken to a camp because they wanted them to carry weapons. They offered to pay them but he refused and they let them go the same day. They continued to send them letters to their homes asking if they wanted to be part of their armed group. After a long time living in [Town 1] he moved to [City 1] (he was between [age range]) then after a long time he moved back to [Town 1] for work. He was kidnapped in 2007. He was asked if anything happened to him between the ages of [Age Range 1] when he was still in [Town 1] and he said they were persecuted during this time. His mother was selling food to the police and the FARC would come and hit his mother and father and accuse them of being police supporters. They didn’t do anything to the applicant at this time.
He was kidnapped for three days in 2007 when he was [Age Range 2]. It was put to him that this didn’t make sense. He said he was born in [year]. It was put to him that he was [Age Range 2] in 1998 but said he was kidnapped in 2007 but he was [nine years older] at this time. He said it happened many years ago and he was very confused about times.
He was asked to confirm that he was kidnapped for a day when he was [age] and released, that between [Age Range 1] he was in [Town 1] and nothing happened to him. He said he was very confused and he was scared and his heart was racing. It was put to him that no medical evidence was offered that indicated he should be confused so he should just not be scared and continue. It was put to him that he moved to [City 1] with his sisters when he was [age] and was asked when he moved back to [Town 1].
He said he was kidnapped in December 2007 and he was working at a [business] at the time. He was held for three days but escaped as the Colombian National Army attacked and a friend of his in the camp helped him escape. He moved back to [Town 1] in 2007 (later said 2006), around a year before he was kidnapped. He did this to finish high school. His parents had been living in [Town 1] all this time until he was kidnapped and they left after. Asked if anything happened to them between 1994 and his kidnapping in 2007, he claimed that they were threatened and received letters asking for the applicant’s whereabouts and were frightened.
He was asked why FARC just sent letters to his parents for so long and didn’t kidnap them and force the applicant to return to [Town 1]. He claimed they had been hit and had many issues as well and tried to protect themselves and the applicant. Asked who else was kidnapped in 2007, he said that he was the only one who escaped and went to [City 1] because he didn’t want to join them. Asked why they didn’t kill him when they held him and he refused them a second time as they could have asked for a ransom or just killed him. He claimed they were from the land and didn’t have any money and it was best to recruit them.
He was asked why they didn’t kill him and put his body in the town square as an example to others who refused to join them, given he claimed that FARC who was a violent group who showed no mercy. Their unwillingness to kill him after his second refusal appeared strange given his description of the group. He claimed they didn’t do this – they hold people in to punish them and he had a lot of cuts on his body to prove this. They wanted people who could carry weapons. It was out to him that FARC had a history of killing detainees, his family was poor and they would slow him down if they kept him, they would have to guard and feed him. He would be a burden so it was strange that they kept him.
He claimed that they wanted to keep young people and he knew the area quite well and he was strong. It was put to him that FARC knew the local area well also. He said that they kept prisoners so they could exchange them also. Asked if the army freed him, he claimed that he escaped himself as he knew the army was going to attack the camp and while they were there a friend of his in the camp had mercy for him and helped him to escape.
After he was released in 2007 his parents left for [a named town] and he left with them. They lived there for a short time and they left for [City 1]. A sister left for Australia and he decided to join her. He was asked why he didn’t leave Colombia to another MERCOSUR country where he could go freely without a passport, given he had just been released from FARC detention for the second time. He claimed that they were peasants from the country and they didn’t have this knowledge they could go to another country to be refugees. He was asked how they could have enough knowledge to come to Australia on a visa but not know enough about going to a neighbouring country without a visa or passport.
He claimed that they had none of this knowledge at this time. His sister was at university and married and he came with her and it was only after a year that his sister asked him to come to Australia and they didn’t know about applying for refugee status. The Tribunal asked the applicant why he didn’t just leave his country of alleged persecution to a MERCOSUR country where he could just go with his ID card. He said he had no knowledge.
He said his sister was studying [Occupation 1] and it was put to him that she was intelligent so it was strange that she would not know that he could have gone quickly to a neighbouring country. He said again they didn’t know about it and didn’t have the resources. It was put to him that it was very surprising they didn’t know about this option. His other sister studies [Occupation 2] at university. It was put to him that they weren’t really peasants if both his sisters were studying at university and he claimed that he lived with his parents and they were peasants.
It was put to him that he was living with his sister studying at university and he claimed that he still considered himself to be a peasant. It was put to him that it was strange that he didn’t know that he could move to a country next door to him using his ID card but yet he did know he could travel all the way to Australia on a passport with a visa. He said it was a year after his sister arrived and they made a big financial commitment for him to come here.
Asked for his purpose of coming here, he said that it was to study English. He finished the course after six months. After this he didn’t have sufficient money to continue to study and he made the decision to stay in the country. He agreed that he didn’t want to return to Colombia because he feared being killed and they were still looking for him. He was asked why he didn’t apply for protection given that either he or well-educated his sister could easily have known that protection in Australia was an option for him given his circumstances.
He claimed he had to make a quick decision and he remained quiet and became unlawful. He didn’t tell anyone about what was happening or his situation as he was scared of being reported. It was put to him that it wasn’t a fast decision and was asked when he applied for protection – he said it was 2015 (December 2015). The obvious problem was that he claimed to have been kidnapped twice by FARC and that they wanted to kill him and yet he delayed applying for protection for seven years. This length of delay was a problem in the view of the Tribunal.
He said he had no knowledge but just stayed quiet. He didn’t tell anyone that he had no visa and if he went back he was going to die. Asked what he did to find out his options of not being returned to Colombia if he believed he was going to be killed – he was asked if he saw a lawyer, migration agent or the Department or get his sister to do so. He said he was desperate and couldn’t cope with it. He spoke to the lady of the house he lived at and she recommended him to a migration agent and this was how he began the process of applying for protection. He was asked why he did nothing about seeing what his options were after his visa ran out in September 2008 given he claimed this fear was with him at that stage.
He claimed his sister left five years ago and had no knowledge of what he could do. It was put to him that there had been a peace agreement with FARC but the Tribunal could find no country information that any splinter group was tracking down any person who refused to join them recently, let alone 14 years previously. He was asked if he had any country information that he would support his claim. He claimed they wanted to recruit people again and be part of the movement, especially after the peace agreement as there were fewer volunteers.
It was put to him that previously he had said they targeted young, fit people for recruits but he was now [much older] and was asked why they would be interested in him. He claimed that they wanted to follow him for revenge because of what he had done in the past.
He was advised about s 424AA and it was put to him that he had previously told DIBP that he had been detained for a day in 1998 when he was [age] but at the hearing he had claimed that he had been detained in 1994 when he was [age]. This could go to issues of his credibility. He said he couldn’t remember the dates clearly because he was nervous and he just wanted to save his life.
Also under s 424AA it was put to him that when he was detained in 1994/98 they threatened to kill him or his family if he didn’t join. Yet he lived in [Town 1] for years without a problem and his parents lived there for nine or 13 years without problem. He claimed that FARC never forgot and were a very violent group so their lack of action was inconsistent with this description. He said that this occurred a long time ago and he was scared and nervous so the dates could be mixed up. It was put to him that this issue wasn’t about the dates, it was the lack of action taken by FARC against him or his family so the Tribunal had difficulty believing that he was of any interest to FARC.
He claimed they weren’t after his parents or family, they were after him. They probably wanted to kill him for their honour because he had escaped from them. He was asked to provide country information indicating that escapees from FARC had been tracked down and killed years after.
Under s 424AA it was also put to him that he told DIBP that he stayed in Australia because he could not return to Colombia as he would be killed. The fact that he stayed here for so long without seeking any advice about protection options, let alone applying for protection raised concerns that he was here for economic rather than protection purposes. He said he was here alone and his father passed away two years prior but he didn’t go because he feared being killed. They were neither rich nor poor so didn’t need to be here for economic reasons.
Second hearing
The applicant said that a second hearing was called to discuss a few small issues. He was advised that after the last hearing, his adviser gave additional information (including some attached documents) that the Tribunal assumed he gave to the adviser as the Tribunal had not seen them before. One was a computer printout from an organisation called [organisation name] – there was very little reference to it and the Tribunal wished the applicant to advise it what the document represented.
He said that when they were displaced and had to live in [City 1] this was the document that proved it. Asked why it was just being presented now given he had several hearings/interviews previously, he said that it was confidential according to the legislation and he didn’t have a way of getting it and it was in the town back in Colombia so his mother had to go to a legal appointment in town.
It was put to him that it appeared one could get the document online as the member had seen the website and it appeared just to require a registration number. He said this was not the case and his mother needed to get a physical appointment to access the document. He agreed they had made a report about being displaced after he was kidnapped in 2007. Asked if he had ever mentioned this previously, he said that he had. It was put to him that the Tribunal could not find a record of his having mentioned it, and he was asked to provide evidence of this. They made the report in December 2007 a few days after he was kidnapped.
Asked who made the report he said his parents made the report after they were beaten and told to leave the town because the applicant hadn’t agreed to join FARC. Asked who actually made the report, he said his parents did as he had to leave for [City 1]. Both his parents made the report. It was put to him that the report said only his mother made the report. He said the three of their names appeared there – it was put to him that it noted his mother was the declarant.
He then said his mother made it but his father went and he doesn’t know why his father’s name wasn’t included. Asked what the organisation to whom the report was made actually did as it said it was a reparation unit and so may provide financial reparations, he claimed that they provide housing and accommodation but the family had not received anything. It was put to him that he claimed his parents made the report in 2007, and was asked when the organisation was actually created. He claimed that it was many, many years ago. Community assistance organisations were created when the fighting stared 50-60 years ago but he couldn’t say exactly what year this organisation was created.
They promise safety and housing from the rural areas but many people receive no assistance. It was put to him that he had previously stated that unknown people had taken over his parents’ rural property. He agreed but said they had never been back and didn’t know who was in the farm. Asked if they had sought reparations for this and if he could provide all the correspondence between his parents and the organisation showing their efforts to seek reparations, he claimed that there were too many people who left the areas so they had not received any help to date. He was also asked for a copy of the original report as there was nothing in the printout that said when the claim was made, only that it referred to an event in December 2007 and was made by his mother.
The applicant said he understood what the Tribunal meant but that was all she was given when she went recently. She even made a new application to see if they could receive anything. Her mother received a report that dissidents from FARC were still looking for him and she also made a report about this to see if they could get any assistance for this. This was why she was in [City 1] staying with his [sister].
He was told about s 424AA and it was put to him that the Colombian law that established this reparations body wasn’t passed until 2011. However he said that the family made the report in 2007 which was four years before the law was passed. He had never previously mentioned having reported this forced displacement in 2007, yet after the last hearing a computer printout of such a report was provided to the Tribunal. The document never says when the report was made, only that it was done by his mother. It was possible it could have been a genuine printout from a report made very recently in order to strengthen the applicant’s claim. This could therefore call into question about the truthfulness of a forced displacement, and the Tribunal had already called into question his claim that he had been kidnapped twice.
He said it was hard to get a genuine document within a week and he needed more time to provide documents. It was put to him that he had years to gain documents to prove his claim given the years he had been in Australia, as well as waiting for a decision. There was also a concern about the validity of documents provided by close family members. Asked what he proposed to provide, he claimed that he would provide more statement from people and government documents stating this displacement from their area was an occurrence.
He had always told DIBP that he was displaced in 2007 and it was hard to obtain a valid document. He was asked about the discrepancy of a 2007 report being given to an organisation not established until 2011, and he claimed that there was a report made to the justice system saying they had been displaced from that region. There were many other organisations.
Asked again what steps his family had taken with the government regarding getting reparations or resolving the situation about their displacement and loss of farm. They had gone to the police and asked but received no answer as so many people had been displaced. Asked about interaction with the reparations unit, where there could be some documentary evidence to support his claim of their follow-up, he claimed that he was not sure. Displacements were still taking place so old claims were not being addressed.
It was put to him that he had two well-educated sisters to help his parents engage, and while it may take a long time, the Tribunal was interested in what follow-up the family had done and what evidence there was of it. He said that his mother went there with his sisters sometimes, so they hadn’t sought much progress. Asked if there was any documentary evidence from them of asking for an update on where their claim was, or interaction with the reparation agency, he claimed that it was a very slow process and they hadn’t received any assistance or answers. She only got the document they provided the last time she went. It was still being processed.

His mother was old and needed his sisters’ time to go with her. The Tribunal reiterated that it had raised its concerns about the veracity of the claim and he was asked to provide a copy of the original complaint and any follow-up documentation.
The adviser stated that displacements in Colombia had been occurring since the 1960s and they didn’t have files in the same way that occurred in Australia. Hence the government didn’t follow up on these cases. It was put to her that the Tribunal accepted that people had been displaced in Colombia – the issue was that without ever having mentioned a displacement report being in existence, one appeared after the hearing. The declaration was made by his mother and, given his father died a few years ago it raised the question as to when it was lodged. It could have been recently. The copy provided had ID numbers and was from a computer printout so it appeared that there was an online system that should provide relatively easy access to information.
The Tribunal was aware that country information indicated that the reparation process was slow, there was nevertheless a process and, given the system was online it should be straightforward to provide information regarding when the claim was made and what was contained in the claim. The Tribunal was concerned at the lateness of the appearance of the record of a submission at the reparations agency given it was from a computer and therefore could have been accessed relatively easily. More information was needed before the Tribunal could lend it much weight.
He claimed that if it was easy to create an entry they would have put the father’s name on the entry.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant first arrived in Australia on a student visa [in] March 2008. His visa ceased [in] September 2008 and he applied for a protection visa on 11 December 2015. The Tribunal sighted his Colombian passport as proof of his identity and his claim will be assessed accordingly.
The applicant is [an age] year-old single Colombian male. He claimed to fear being killed by FARC elements because he had refused to join them.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness. I took into account a claim made prior to the hearing that the previous interpreter had cut off some of his responses which adversely affected his evidence. He was given the opportunity to provide evidence that this occurred and told that unless he did then the previous interpreting would be considered as accurate. He provided no such evidence hence I do not accept that his previous evidence was incorrectly interpreted.
Recruitment by FARC elements
I do not accept that the applicant was kidnapped twice by FARC elements, asked to join them or refused to do so and was targeted as a result of this refusal. There are a number of reasons for this – a significant concern on the part of the Tribunal is the large delay between his arrival in Australia and his application for protection. He arrived in March 2008 and his student visa ceased in September 2008. He then remained in the country unlawfully in the country for more than seven years before he applied for protection.
The applicant claimed that he was in such fear of his life prior to coming to Australia that he had to hide for the approximately two months it took to process the application and that they ‘didn’t even venture to the door’ during this time such was his level of fear. Given this, it is extraordinary that he did not apply for protection for approximately seven and a half years after his arrival. I do not accept that this was because he didn’t know the procedures or how to get information, or because of issues to do with his sister’s [situation]. For someone allegedly having such fear of death in Colombia, his lack of interest in finding options to remain in this country lacks credibility. And while his sister’s circumstances were undoubtedly tragic they do nothing to account for a seven and a half year delay in applying for protection.
His delay in applying for protection would be enough to call into question his claim to fear serious harm on its own, however there are other concerns about the credibility of his claim that are evident to the Tribunal. He was inconsistent about the timing of events, saying for example that he was kidnapped in 2007 when he was between [Age Range 2], yet he was actually [nine years older] at this time. The Tribunal can accept that he was nervous at the hearing and hence does not place too much weight on this discrepancy.
The Tribunal however, places more weight on the inconsistency in his claims and the coincidental nature of events that he recounted. To begin with the applicant claims that those people who resisted forced recruitment into FARC turned up dead and their families were massacred, and that FARC never forgot or forgave. Yet the applicant alleges that he refused to join them in 1994 and FARC sent letters to his family but never killed them despite them living in the same area for years after. The applicant was also able to return to the same area in in which he had initially refused their offer to join them in February 2006, complete high school, work and visit his parents regularly without ever being targeted by FARC for nearly two years.
Then, on a night that he happened to be at his parents, the FARC elements visited and detained him. It again makes little sense that such a violent organisation who allegedly never forgot or forgave and killed people who refused to join them and their families, would not then simply kill the applicant and his family now they had the chance. It also makes no sense that, having detained and tied him up he agreed to go with them if they released his parents. Given they had him under their complete control there is no reason why they would have felt compelled to agree to any of his requests.
Then, having been taken to a jungle camp it is raided within a few days of his being there by the Colombian army and he happens to have contact with a childhood friend who had joined the group 13 years previously who was not only still with them but also in a position to release the applicant at the time the army launched their operation against the group. The number of coincidences are sufficient in the mind of the Tribunal to make his account of these events implausible.
The subsequent actions of the applicant in the face of an alleged fear of being killed by FARC elements also lacks credibility. Colombia is an associate member of MERCOSUR and as such its citizens are allowed to travel freely to other full and associate member countries for a period of two years with work and education rights and this can be transitioned to permanent residency after those two years.[1] Given this easy option available to him to move quickly and cheaply to a Spanish-speaking country, his decision to seek to travel to an expensive country whose language he didn’t speak that required an extended wait for a visa raises serious questions in the mind of the Tribunal.
[1] Article: Free Movement in South America: The Emerg.. | migrationpolicy.org, accessed 11 October 2021
I do not accept that he did not take up this option because he lacked knowledge regarding it. Not only does it rely on his uncorroborated oral testimony which I have found lacks credibility, country information[2] indicates that between 2004-13 two million people within the MERCOSUR group sought permanent residency within each others’ countries which would indicate that the option of traveling to neighbouring countries was widely known.
[2] Ibid.
The Tribunal notes that a peace agreement was signed between FARC and the Colombian government in late 2016 but that some dissident elements of FARC continue to carry arms and oppose the government. The idea however, that a fringe group of FARC would still have any interest in, let alone seek to target someone who allegedly refused to join them as [an age] year old some 25 years previously and then again 14 years later seems implausible. It is reasonable to believe that they would have more important things on their plate at the moment. More pertinently there is no country information available to the Tribunal, nor was any ever provided by the applicant even though he was given time to do so, that would support such a proposition.
I have taken into account a range of country information and supporting documents provided by the applicant both prior to, and following the hearing to support his claim that they were forced off their land because the applicant refused to join FARC. I am however unable to lend them much weight and they do not outweigh the Tribunal’s concerns regarding the truthfulness of his claims for the reasons outlined above. This includes a notarised letter from his sister in Colombia claiming that four heavily-armed men from dissident FARC entered her house in January 2021 looking for the applicant. Not only is the applicant’s sister not an objective source, I have already raised my concerns regarding the implausible nature of a dissident group expending time and energy on trying to track down someone who allegedly refused to join the main FARC movement 14 years previously.
I have also taken into account some documents provided post-hearing along with a submission from the adviser. It was difficult to tell their relevance from the adviser’s letter as the explanation regarding their connection to the applicant’s claims wasn’t immediately apparent. One document claimed to be an entry from a register from [a] Colombian [agency] registering the applicant’s family as being forcibly displaced from their property on [a day in] December 2007.
Such a body does exist[3] and the entry does claim that they were forcibly displaced on [that day in] December 2007 which is the same date that the applicant claimed that the FARC elements kidnapped him from their property. In order to discuss the appearance of this document in a post-hearing submission I gave the opportunity for the applicant to attend a second hearing.
[3] [Source deleted.]
I have taken this document (along with the others) into account however I am unable to give them much weight. He had never mentioned that a report of their dispossession had been made to authorities nor did he provide a copy of the printout as part of his protection visa application, during his Departmental interview nor during the first AAT hearing. While the computer printout noted the date of the incident, there was nothing to indicate when the actual submission was made. The Tribunal was concerned that the entry may have been made after the applicant received a negative decision, in order to bolster his claim.
He was asked to provide some evidence of this in order to satisfy the Tribunal’s concerns about the lateness of the submission, the entry stating that the applicant’s mother was the declarant (rather than his father who died a couple of years ago). None of the documents provided to the Tribunal by the applicant post the second hearing allayed those fears. I do not accept that the lateness was because his mother had to physically travel back to their town and lodge a request for the printout. Whilst I accept that the information would only be made available to registered declarants, it is also reasonable to believe that this information has been available to be accessed online to registered individuals as the website from which the printout was given appears to allow this.
I lend the other documents allegedly from FARC little weight as they are photocopies of documents that could have been produced on any home computer, one is undated and the other allegedly from July 2020. Neither support the central claim that the organisation is looking to punish any individual who refused to join rump FARC prior to the peace agreement. The other documents appear to indicate that the applicant’s family lived in [Town 1] for a certain period and that the applicant’s mother was [an official] of [a local organisation] for five years. The relevance of the latter is not readily apparent, while the Tribunal has not questioned where the applicant and his family lived in Colombia – rather it has questioned what happened to him when he lived there.
Other Issues
Because I do not accept that the applicant was ever kidnapped by FARC elements or refused to join the group, it follows that guerrillas did not destroy their farm and take animals while they were looking for the applicant, that they have taken over the farm subsequently or that paramilitary groups say the applicant gave them the farm, is a member of FARC and seek to target him. Nor do I accept that the applicant’s name is on a written list left by the guerrillas of people who will be killed, that strangers have been asking the applicant’s mother as to his whereabouts, or that his father (while he was alive) was hit by guerrillas looking for the applicant.
I also do not accept that the applicant’s parents were threatened for selling food to the police station adjacent to their farm. It relies entirely on the applicant’s oral testimony which I have found lacks credibility, and even if were true it occurred well over a decade ago and they have not been targeted subsequently because of it. The applicant for example, even claimed the guerrillas let them go when they kidnapped the applicant in 2007.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal does not accept that there is a real chance that the applicant will face serious harm on return to Colombia for any 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant has ever been kidnapped by FARC elements and asked to join them but refused, that he or any of his family have been threatened by FARC guerrillas or paramilitary groups or that his parents’ farm was taken over by rebel groups because of it, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims.
Whilst I note that there is some ongoing activity by armed groups in Colombia I also note that none of the applicant’s family have left the country which, given the ease with which Colombian citizens can move to neighbouring countries I am satisfied that this is because they feel safe where they are and the applicant would also be able to feel similarly safe.
I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Colombia, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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).
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. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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.
…

[2021] AATA 5090

2 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction