1711056 (Refugee)

1711056 (Refugee) [2021] AATA 4298 (31 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1711056

COUNTRY OF REFERENCE: Colombia
MEMBER:Roslyn Smidt
DATE:31 August 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 August 2021 at 3:01 PM
CATCHWORDS
REFUGEE – protection visa – Colombia – imputed political opinion – opposition to Revolutionary Armed Forces of Colombia (FARC) – particular social group – refusal to cooperate with FARC – threatening phone calls – peace deal with the government – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65
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 4 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Colombia, applied for the visa on 29 April 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.
BACKGROUND
The applicant is [an age] year old man from Pereira City, Risaralda Department in the western central region of Colombia. His wife and [children] remain in Colombia. He obtained a visitor visa on 20 January 2015 and arrived in Australia [in] February 2015. He applied for protection on 29 April 2015.
CLAIMS AND EVIDENCE
In written and oral submission to the Department the applicant stated that he operated a business dealing in [products] in Colombia. His work involved travelling to small towns and communities around Pereira City. On 26 July 2014 he was approached outside his home by a man who identified himself as a member of the Revolutionary Armed Forces of Colombia (FARC). He told the applicant that they were seeking cooperation from small business owners such as him and many dangerous things would happen to him if he did not cooperate. [In] August 2014 he received a telephone call from a man who told him to expect delivery of some packages, which he should then deliver to a farmer in the town of Armenia where they would be stored. He was warned not to tell anyone about these instructions. Following this telephone call, he feared he would be harmed or killed if he did not cooperate, so he left his home and moved from place to place staying with friends. His wife had received some telephone calls from someone asking for him while he was in hiding, so he told her to change the number of their landline. After that she did not receive any further telephone calls. She was never approached in person by anyone. The applicant asked his [relative] in Australia for help and she sent him an invitation for a visitor visa. His wife and children continued to live in the family home after his departure.
During his interview with the delegate in 2017 the applicant acknowledged that FARC had signed a peace deal with the government but said that he was afraid that dissidents who were not committed to this peace deal would still seek to harm him. He acknowledged that the situation might change so that he could return home at some time in the future.
In her decision the delegate observed that FARC commonly harm family members of those they approach. She found his failure to relocate his family, the absence of any ongoing problems for his family and his failure to use the [Country 1] visa which he obtained in 2014 indicated that he had never been approached or threatened by FARC.
At the hearing on 26 August 2021 the applicant confirmed that he feared that he would be harmed by members of FARC if he returned to Colombia and that he did not fear harm for any other reason. He said that he had been contacted by FARC on two occasions, once in person and once by telephone. His wife answered the phone on another occasion. Following this he went into hiding. When asked for more information on his movements he said that he had only worked three days a week and changed his work routine. He also spent the day at [a relative’s] house and only came home at night. He also stayed with [this relative] on occasion.
I advised the applicant that I had some difficulty accepting his claim. I observed that while I was aware that FARC had a history of forcing people to cooperate with them, it seemed somewhat unlikely that the group would have asked him to transport goods rather than use trusted members or supporters. I also observed that despite the fact that he did not appear to have been in hiding, FARC did not continue to contact him or seek to harm during the time he remained in Colombia between the final contact [in] August 2014 and his departure for Australia [in] February 2015, which suggested that he was not of interest to them. He said that FARC approached random people who were of good character to work for them and after being approached he had only two options, cooperate or flee the country. He said that his wife had received some suspicious calls after his departure for Australia and on his advice changed her telephone number and moved to another part of the city in 2015.
I advised the applicant that even if I accepted his claims at face value it was now seven years since he was approached by FARC and during that time a peace treaty had been signed, which saw most members of the group disarming and returning to civilian life or entering mainstream political activities. I noted that while some dissident members and other armed groups continued to carry out violent or criminal activities, I was unaware of any evidence which suggested that members of these groups would seek to harm him because he refused to cooperate with FARC in 2014.
The applicant acknowledged that a peace treaty had been signed but said that it had not really changed the situation as some members of FARC were still picking up arms and they were stronger than ever. I advised him that it was my understanding that FARC dissidents and other armed groups were active in more remote parts of the country and again observed that it appeared unlikely that members of the group would have any interest in him because he refused to carry packages for them in 2014. He said that he watched the news from Colombia and he did not feel safe. He feared that he would be killed if he returned.
COUNTRY INFORMATION
The following is intended to provide a context for the applicant’s claims. It is based on the US Department of State Country Reports on Human Rights Practices: Colombia 2020, 30 March 2021, Section G, Abuses in Internal Conflict; Human Rights Watch World Report on Colombia 2021; and ‘Colombia’s fragile peace deal threatened by the return of mass killings’, The Conversation, 15 February 2021.
Conflict between FARC and the government resulted in an estimated 250,000 deaths in five decades prior to November 2016 when a peace deal was reached. The vast majority of FARC members disarmed and surrendered their weapons to the United Nations on 27 June 2017. A small minority refused to disarm and some returned to armed violence in later years. Reports indicate that this violence occurs mostly in the countryside and mountainous region bordering Venezuela. According to the Human Rights Watch World Report on Colombia 2021, most of the violence occurred in areas where illegal economic activities, such as drug production and trafficking, are common, such as: Putumayo, Cauca, Valle del Cauca and Nariño states in the south; the Catatumbo region, on the border with Venezuela; and the Bajo Cauca region. Targets of the violence include human rights defenders, journalists and community activists. An article from The Conversation entitled ‘Colombia’s fragile peace deal threatened by the return of mass killings’ notes that paramilitary groups, drug trafficking organisations and former FARC militia members currently operate mainly in territory previously controlled by FARC where rival groups compete for dominance and there is little in the way of government support. In the author’s view the main reason for the resurgence of massacres and other violent attacks in Colombia is to deter people from supporting the peace process because of its likely impact on illegal or criminal activities.
CONSIDERATION OF CLAIMS AND EVIDENCE
I found the applicant evidence regarding his interactions with FARC confused, contradictory and unconvincing.
In his submissions to the Department the applicant said that he had gone into hiding after receiving a call from FARC demanding his cooperation [in] August. At the hearing he said that he continued to work three days, albeit with a different schedule, and returned to his home most nights until his departure in February 2015. Not only is this at odds with his earlier evidence, as he was not in hiding FARC could easily have located and contacted him had they wished to do so. However, there is no suggestion that they delivered or attempted to deliver the parcel mentioned in the August telephone call or that the applicant received any further instructions or threats from the group from the group in person or by phone. In these circumstances, even if I accept that he was contacted by FARC in mid-2014 (which I do not) they clearly did not have an ongoing interest in him.
The applicant also gave differing accounts of his wife’s contact with FARC members. He told the delegate that she had received a number of suspicious calls while he was in hiding in Colombia and had changed their landline number\, after which she received no further calls. During the hearing he said that his wife answered one call from FARC before he left Colombia and she had also received several suspicious calls after he left for Australia so she changed her telephone number and moved to another part of the city.
In addition to these problems, as pointed out in the delegate’s decision, the applicant had a valid visa for [Country 1] throughout the time he claims to have feared for his safety in Colombia. If he had been genuinely fearful of FARC I believe he would have used this visa.
After considering all of the evidence, I do not accept that the applicant was approached by FARC in 2014 or that he left Colombia in 2015 because he feared that he would be harmed by members of FARC. I believe that he concocted these claims in order to obtain protection and remain in Australia.
Furthermore, even if I accept the applicant’s claim that he was approached and threatened by member of FARC in 2015 (which I do not), as set out in the country information section above, the situation in Colombia has changed significantly since the applicant’s departure in 2015. Most FARC members have disarmed and returned to civilian life. While FARC dissidents and others continue to carry out violent attacks in some parts of the country, the evidence does not suggest that FARC dissidents or other armed groups have a significant presence in the applicant’s area or that they are targeting people who refused to cooperate with FARC in the past.
After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of suffering serious or significant harm on return to Colombia because he refused to cooperate with FARC. As no other claims have been made, I am not satisfied that he faces a real chance of suffering serious or significant harm on return to Colombia for any reason.
DOES THE APPLICANT MEET THE REFUGEE CRITERION?
After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm for any of the reasons in s.5J(1), if he returns to Colombia now or in the reasonably foreseeable future. Therefore, I am not satisfied that he has a well-founded fear of persecution in Colombia for any of the reasons set out in s.5J(1).
DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?
After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real risk of suffering significant harm on return to Colombia for any reason. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Colombia, there is a real risk that he will suffer significant harm.
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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 4298

31 August 2021

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