1711080 (Refugee)

1711080 (Refugee) [2022] AATA 1069 (22 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1711080
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Denise Connolly
DATE:22 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 February 2022 at 11:04am

CATCHWORDS
REFUGEE – protection visa – Colombia – fear of harm from paramilitary group and corrupt colleagues – police administrator pressured to delete criminal record of group associate – deaths of one uncle-in-law and colleague/friend, general violence and threats to applicant and family members – mental health – credibility – inconsistent claims and evidence – delays in departing after visa granted and in applying for protection – wife and child remained in home country initially, with no harm – treaty right to enter other South American countries – siblings’ profiles and locations available on social media – members of family unit – child’s settled life in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65, 438
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 12 May 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Colombia, applied for the visas on 15 December 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) is not person in respect of whom Australia has protection obligations.
The applicants appeared before the Tribunal on 8 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
Administrative matters
There are two s.438 certificates on the Department’s files certifying that folios 178 – 203 in file [Reference 1] and folios 1, 2 and 18 in file [Reference 2] should not be disclosed because it would be contrary to the public interest as the folios contain information that relates to integrity procedures of the Department. Those folios reveal the method by which the Department accesses social media accounts. The certificates were discussed with the applicant at the hearing and the Tribunal explained that it may accept that it is not in the public interest to reveal the Department’s method for accessing social media accounts. The applicant expressed no objection to this. The Tribunal notes those folios also contain publicly accessible information from the applicant’s siblings’ [Social media] accounts. It is not satisfied it would be contrary to the public interest for that information to be disclosed to the applicant. It notes the delegate discussed at the interview with the applicant the publicly available contents of those pages, as recorded in the delegate’s decision record. This information was also discussed with the applicant at the hearing.
The Tribunal is satisfied that the release of the information relating to the Department’s integrity would be contrary to the public interest. However it is not satisfied the release of the contents of the siblings’ [Social media] pages, publicly accessible information, discussed with the applicant at the delegate’s interview and at the Tribunal hearing, would be contrary to the public interest.

Evidence before the Tribunal

The applicant arrived in Australia on a student visa [in] June 2016. The second and third named applicants arrived in Australia on visitor visas [in] November 2016. The applicants applied for protection visas on 15 December 2016. The second and third named applicants did not raise claims of their own in their visa applications.
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was interviewed on 5 April 2017. The Tribunal has listened to the recording of the interview and notes some of his oral evidence is included in the decision record.
The applicant provided the following information in his visa application and at his interview with the delegate. He was born in [Town 1], [Province], Colombia. He is a citizen of Colombia. He is married to the second named applicant and has one daughter, the third named applicant. He studied to join the National Police at the [Police School] in 2009. He worked as an Officer in the Criminal Investigation section of the National Police, in the [Province] branch between December 2009 and August 2014. He was working in [Town 2], [Province] however, due to his excellent work performance, was promoted to the Criminal Investigation section in [City]. This branch had jurisdiction throughout most of [Province] but most of his work was centred in [City]. He lived in [Town 1] and commuted to [City] every day. During the latter part of his employment he attended [University] in [City] to study [Subject 1] but, due to threats he received, he was forced to withdraw from university in his second semester.
The applicant claims that in August 2014 he was assigned to working in the Judicial Information Administration Group. This section was responsible for updating police and judicial databases with information such as capture orders, assurance measures, prison sentences and “no travel” orders. The section could erase criminal records when directed by judicial authorities. In his visa application he stated he worked as a data entry typist in the Data Section from August 2014 until July 2015. At his interview with the delegate he stated he worked as a Digital Officer, and then as a Criminal Analyst in the Criminal Analyst section from July 2015 until he retired on 31 May 2016.
The applicant has made the following claims. In September 2015 he was contacted on his mobile by a man named [Mr A] who claimed to be a member of [Group 1], a paramilitary group, formerly known as [Former name] who were active throughout Colombia under the command of an anonymous leader. [Mr A] informed him that [Group 1] required his assistance because of his work position. The applicant was shocked. He informed [Mr A] he had the wrong person and hung up. A few days later he received a phone call from [Mr B] who threatened him and his family if he refused to cooperate. The applicant asked what [Mr B] wanted. [Mr B] said he would be contacted again soon. In November 2015, [Mr B] contacted him again advising he wished for the records of a friend of [Mr B]’s to be deleted and he would be informed of the name soon.
The applicant claims that around this time a former colleague contacted him and encouraged him to assist [Group 1]. This concerned him as he realised fellow officers were also involved with this group.
The applicant claims that in early December 2015, he received a text message providing him with the details of [Mr B]’s friend whose records he was to expunge. He tried to avoid doing this by stating that he was covering other posts for the rest of the year and would not return to [Province] until 2016. He was informed they would wait until he returned. In January 2016, he returned to [Province] and on 10 January he applied for retirement from the police force and was granted 25 days’ leave. He returned to the [Province] post on 3 February 2016. However his family was worried for his safety and decided he should leave the country. His wife suggested he apply for a student visa.
The applicant claims [Mr B] called in February 2016 and was angry that the applicant had not answered his phone in January 2016. The applicant told him he could not answer his phone because he was in remote locations without mobile reception. [Mr B] asked him how he was progressing with the request and the applicant informed him he was “working on it.” The applicant asked [Mr B] for additional details regarding the person to buy time. He lodged the visa application in February 2016.
The applicant’s visa was approved in April 2016. He did not leave Colombia until June 2016 because he was waiting for his retirement to be approved as, otherwise, he would be considered a deserter. His family would sometimes sleep at a relative’s house because they feared for their safety. The applicant feared he would be killed or jailed. He could not conceive of assisting [Group 1] as this was treasonous and against his beliefs. He received his retirement letter on 31 May 2016 and left Colombia [in] June 2016. He travelled to Australia via [Country 1]. He could not afford to bring his wife and daughter, so they lived with her family. The applicant feared that if [Group 1] found out he had left Colombia, his family would be killed. His mother and siblings went into hiding in [Province].
The applicant claims that his aunt’s husband, [Mr C], was murdered by members of [Group 2], a guerrilla organisation, in 2006.
The delegate records in the decision record that she discussed with the applicant evidence from his siblings’ [Social media] accounts which included public photographs and identified their locations in Colombia. She explained that, because of this evidence, she may not accept they feared for their lives. The applicant claimed he tried to inform his siblings that they could be targets but it was up to them how they lived their lives. The delegate did not accept his siblings would have utilised social media in the manner they had if they genuinely feared being targeted. She accepted his aunt’s husband may have been killed in 2006 but was not satisfied this put the applicant at any risk of harm in the future.
The delegate accepted the applicant was employed as a police officer in Colombia as claimed. However she noted he did not depart Colombia as soon as his student visa was granted in April 2016 and she was not satisfied his explanation, that he was waiting for his retirement letter or he would be considered a deserter, adequately explained his delay in departing Colombia. She also found the Mercosur agreement[1] enabled the applicant to cross the border into a safe country. The applicant argued he would not be safe anywhere in Latin America.
[1] Colombia is an associate member of Mercosur – a free trade agreement between various Latin American countries, SICE: Trade Policy Developments: Colombia-MERCOSUR (oas.org), accessed 10 January 2022
The delegate noted the applicant’s evidence that he received calls from members of [Group 1] in September, November 2015 and February 2016 and a text message in December 2015. However she noted he could not be more specific at the interview. She noted however that in his written evidence he was able to provide exact dates for some events. She was of the view a police officer would have understood the importance of recording times and dates for evidentiary purposes. She questioned whether he received the calls as claimed.
The delegate noted she discussed with the applicant training he received in dealing with corruption. He acknowledged that he had been trained to report any corruption to his commander or the Direction of Public Prosecutions. However he admitted he did not inform anyone about the calls or text, claiming the call from a fellow officer advising him to cooperate was discouraging. The delegate noted however that the applicant claimed he stopped answering his phone to avoid fulfilling the task. She questioned whether he would have stopped answering his phone if he felt other officers were informants or involved with [Group 1].
The delegate asked the applicant why he would still be targeted in Colombia given he is no longer a police officer. He stated he defied [Group 1’s] orders so they will be looking to kill him. He claimed he is on their wanted list. The delegate did not accept the applicant would be of any interest to [Group 1] in the future.
The delegate accepted the applicant may have been asked by [Group 1] to delete a person’s criminal history but she was not satisfied he was under threat when he left Colombia or that he would be under threat if he returned to Colombia.
Written submissions
On 1 December 2021 the applicant’s representative provided written submissions to the Tribunal stating as follows:
a.Regarding the issues raised about the applicant’s siblings’ [Social media] pages, showing public photographs and identifying their locations, as an experienced ex-officer he has good knowledge about how paramilitary groups execute their threats, by killing family members including children, spouses, parents and siblings. This is why he claimed his family was threatened by [Group 1]. The representative acknowledged the delegate raised with him that his siblings were active on social media, diminishing his claims they feared [Group 1]. The applicant responded to this by indicating his siblings were displaced from their usual residence and forced to change their lives. However he cannot protect his siblings or control their actions, only give them advice on how to protect themselves from the paramilitary. His siblings have stated that social media is the only way for them to keep in contact with peers and relatives. His mother however understands the situation.
b.The applicant’s mother provided a statutory declaration attested 26 November 2021 in which she states that she went to visit her mother in the [Town 1] municipality, from where she was displaced in September 2021, for 8 days. During the visit she went to the market and was approached by two men who enquired about the applicant, claiming to be his high school friends. However she knew they were not his friends because she knew most of his school mates, and these men looked older than the applicant. She told them she had not had contact with the applicant in a long time. They said “tell him to look after himself, that we are going to wait until he returns”. The applicant believes, by his mother’s description of these men, they are [members of Group 1].
c.Regarding the applicant’s delay in departing Colombia and the delegate’s concern about his decision to await his retirement authorisation, it is submitted the applicant would have faced an apprehended desertion order if he left before his retirement was approved. The representative provided an article with an excerpt from the Colombian Military Penal Code addressing the issue of absence without permission, considered an act of desertion punishable by imprisonment. Article 109 – Desertion of the Penal Code states that, if an officer is absent without permission for more than 5 consecutive days, they will incur imprisonment.
d.Regarding corruption procedures and training in the police force the representative referred to the death of a fellow police officer, [Mr D], the applicant’s “colleague and friend” since 2012, the victim of an attack at his home residence in May 2014. She quotes the applicant as stating “(f)or me it was a painful fact because he was a great friend. In the year 2015 fearing for my life I understood what happened to [Mr D], I was afraid it could happen to me, when I refused to collaborate with [Group 1]; the way how those paramilitaries attack and kill is very common among them, two men on a motorbike went into a house and perpetrated the execution. I believe my partner and friend was facing a situation like me and he obviously refused to participate in criminal activities so [Group 1] or [Group 3] killed him”. The representative provided a copy of an article about the murder. She also provided an article about an internal dispute in the [City] police in March 2021 when 6 police officers were accused of being corrupt.
e.Regarding the delegate’s question as to whether the applicant would still be a target the representative submitted [Group 1] still operate in Colombia. She provided an article dated August 2021 regarding the distribution of pamphlets by [Group 1] and forced disappearances, cruel and degrading treatment and murder. She also provided articles about police corruption, the [Group 1’s] structure making it difficult to track and dismantle them, and [Group 1] threatening and killing public officials, politicians and advisors.
f.Regarding the applicant’s inability to provide dates for the calls in September, November and February and the text in December it is submitted the applicant has been suffering emotional stress and has sought professional help from a psychologist in Colombia (remotely) to help him address problems with concentration, disconnection from reality, anxiety and difficulty remembering information, dates and times when under pressure. He has claimed his mind went blank when he was interviewed by the delegate.
The representative provided a report from a Colombian psychologist, [Mr E], dated 24 November 2021, advising the applicant consulted [Mr E] because he was having trouble concentrating, he felt disconnected from reality and “bad because I cannot accurately remember dates and times of a very difficult situation for me…which affected my whole family”. [Mr E] reported that during their sessions the applicant’s attitude was consistent, his language and thinking were logical and coherent, his judgment and reasoning were preserved, he was oriented in person, time and space, his introspection and prospection were adequate and throughout the whole treatment process he showed a responsible, empathetic and receptive attitude. The applicant reported to [Mr E] that on occasions when he was trying to remember the details of stressful events he had feelings of anxiety, sweating, tachycardia and negative thoughts. He reported difficulty engaging in social contexts. He did not experience these symptoms before joining the police force where he was a victim of coercion and threats, a situation which made him “leave his place of residence in search of protection”. He reported to [Mr E] that the triggering event occurred 7 years earlier when, as a police officer, he was threatened by members of an armed group who demanded he carry out actions outside the law.
[Mr E] recorded that the applicant reported he “tried to convey this incident to his police colleagues, this was when (the applicant) entered into an existential crisis, as he felt abandoned by his own institution”. He feared the armed groups, and the police officers who were active in conspiracy with them, would harm him and his family.
[Mr E] recorded that the applicant reported he felt cornered, without legal or institutional support, and exposed, so he quit his job. However, “after requesting to formally leave work, he still perceived and received threats, he was marked by the paramilitaries and the police force as a military objective, which at any time could make him disappear, murder him”.
[Mr E] recorded that the applicant reported he and his family experienced “a frightening event of violence by these outlaw groups, when the latter murdered all the political members of the town administration where the applicant and his family resided”. This incident occurred when the leaders were meeting. The massacre plunged the whole region and country into mourning. One of those murdered was the applicant’s uncle by marriage.
[Mr E] recorded that the applicant reported all of these circumstances forced him to search for security for himself, his wife and daughter. He left his country in 2016 in desperation, “with the pain of being forced to leave his family behind for the time being…(the applicant) arrived in a country where he was welcomed and began the task of saving his family, wife and daughter, taking them to Australia” to reconstruct their lives.

[Mr E] diagnosed the applicant with dissociative amnesia, problems relating to disasters such as war or other hostilities and generalised anxiety disorder.
[Mr E] concluded that “it is essential for the patient to know that he is safe in Australia, to be able to be with his wife and daughter in (Australia), it is the reason that allows him homeostasis, and normal and healthy functioning”. He recommended that the applicant have psychological therapy to “facilitate social and legal or legal intervention so that the patient and his nuclear family remain protected in Australia, in their current environment”.
[Mr E] reported that the applicant’s anxiety had reduced with therapy which had “markedly decreased the probability that anxiety behaviour occurs, in situations of social interaction” and that his functioning had improved. However the idea of losing the stability available to him in Australia is a trigger for destabilising him. [Dr E] recommended the applicant seek legal support to maintain his life in Australia.
The representative submitted that, because [Group 1] still operate in Colombia, the applicant still fears for his life and the lives of his wife and child. He believes [Group 1] will never forget him because he defied orders. She referred to civil war and displacement in Colombia. She referred to an article stating incorruptible police often end up on blacklists. She submitted that, even if [Group 1] have given up in charging him for “mockery and contempt”, the applicant is at risk because of the corruption of police colleagues inciting him to collaborate with the paramilitaries. Thus he is at threat from [Group 1] and corrupt police.
The representative submitted that the applicant’s mother being located on 16 September 2021, when the applicant was threatened, indicates [Group 1] have renewed their harassment.
The representative argued the applicant’s [daughter] will suffer sociocultural shock and will be exposed to danger if she has to return to Colombia. She stated the daughter demonstrated behavioural problems in her early school years reflecting the family’s stress. She fits in well and has integrated successfully in Australian society.
Hearing on 8 December 2021
At the hearing the Tribunal discussed with the applicant the s.438 certificates. It gave him an opportunity to comment on the validity of the certificates, explaining it might accept that it would be contrary to the public interest to disclose the information that relates to the Department’s integrity procedures. He did not disagree with this view and expressed no concerns about the certificates.
The Tribunal asked the applicant if he wished to make any changes to claims made in his written and oral evidence. He confirmed that he did not want to make any change.
The Tribunal asked the applicant about his passport which was issued in [2015]. He stated he got his passport “just to have it” in case he wanted to travel. The Tribunal asked if he was thinking about travelling in 2015. He indicated they had been thinking about a holiday, taking his daughter to [Location] in [Country 2]. The Tribunal noted his wife’s and daughter’s passports were not issued until [2016], after he came to Australia, suggesting there was no definite plan to take his daughter to [Location] in 2015. He stated he did not know why that was. He then referred to his claim that something happened in September 2015.
The Tribunal asked the applicant why he came to Australia. He stated he came because of persecution and threats. He brought $10,000 with him. He worked in Australia for [a] business, starting a few weeks after he arrived in Australia, on 1 July 2016. He denied knowing anyone in Australia before he came here, claiming someone at college told him about the [business]. He has since moved to Canberra, to work for a larger company, as he wants to live in a quieter place with more work opportunities and improve his English. The other company employed mostly Latinos.
The Tribunal asked the applicant about his childhood and family circumstances in Colombia. The applicant stated he lived with his mother and siblings. His parents separated, after he and his older brother finished school, leaving his mother to care for the children. His family was financially comfortable. His mother bought and sold [Commodity] as an intermediary, and was paid commission. She also worked in a [Workplace]. She owns her own home. The applicant lived with her before he came to Australia.
The applicant’s sibling, [Mr F], finished university in [City] and then studied [Subject 2] in [Country 3]. His other brother, [Mr G] lives in [Country 4]. He is financially comfortable. His sister, [Ms H], studied [Subject 1] in [City]. She is now [an Occupation].
The applicant completed high school in a school with about 1000 students. He then went into the Army for 2 years. After this service, he joined the police force, in 2008. He started as a Patrol Officer and was then appointed to Criminal Investigations because of his previous experience in the military. The Tribunal asked if he was required to complete 7 years’ service for the police force. He denied this and explained that the retirement letter can be sent at any time. He sent his retirement letter in January 2016, indicating he wished to retire immediately. It is up to the police force as to whether they will let an officer retire. Senior police meet to discuss the applications and then publish a list of approved retirements. When a request to retire is lodged, the officer is sent on annual leave.
The Tribunal noted the applicant provided a letter dated 26 February 2016 certifying his employment with the police. It asked why he obtained this letter. He indicated it was required for his student visa application. He did not tell the police force that he intended to study in Australia because he had doubts about his police colleagues.
The Tribunal noted the applicant’s human resources records indicate that he was not promoted during his 6 years of service with the police. He indicated an officer could only be promoted after a certain period of service.
The Tribunal asked the applicant about his [Subject 1] studies, noting he had not provided any transcripts for the study. He said he commenced in 2014 on a part-time basis. He worked during the day and studied in the evenings. He completed 3 semesters. He stopped studying at the end of 2015 when he decided to make the student visa application. The Tribunal asked when he first made enquiries about the student visa application. He said he enquired in January 2016, after he advised the police he wanted to retire. He could not remember when he started the student visa process, whether it was before or after he lodged the letter to retire.
The Tribunal asked about his intentions when he came to Australia. He indicated he intended to do a 6 month English course. His plan was that, at the end of the 6 month course, he would renew his student visa. However he could only afford another 6 month course due to the expense so did not renew the student visa.
The Tribunal asked the applicant if he feared for his wife’s safety when he came to Australia. He said he did fear for her safety but he could not afford for her to come to Australia with him. The Tribunal asked why that was, given his evidence that his family was financially comfortable and he was able to bring $10,000 with him to Australia. It asked why his family would not have assisted him to protect his wife and daughter if they genuinely believed he and his family were in danger. The applicant acknowledged the family had the financial means but coming to Australia was expensive and the exchange rate was poor.
The Tribunal asked the applicant why they did not consider going to a closer Latin American country if that was the case, so that he could make sure his wife and daughter were with him and also safe. He indicated he wanted to go to a faraway country with safe borders. The Tribunal asked if he knew anyone in Australia. He indicated his wife had heard there was “a way” in Australia. The Tribunal raised its concern that he and his wife could have gone to a Latin American country to be safe, speak the same language and stay together. It questioned why he would leave his wife and daughter in Colombia, and not go to a closer country together, if it was the case he was fearful for their safety. The applicant claimed that there was news that the illegal group was in other South American countries. He felt he would be safer here. He claimed he did not feel he would be safe, even in North America.
The Tribunal noted the applicant did not depart Colombia as soon as he could once the student visa was granted. It noted the applicant has indicated he was so scared in Colombia that he left his wife and daughter there, however he has also claimed he could not leave Colombia immediately on receiving his student visa because he was waiting for his retirement to be approved. It indicated it may not accept his reason for staying in Colombia after the grant of the visa, to wait for his retirement approval, supports his claims to be fearful of [Group 1]. It explained it may form the view that, if he was genuinely fearful as he has described, he would not have remained in Colombia once granted the student visa. It also noted that the delegate indicated there was country information indicating it was not necessary for him to remain there in order to be discharged. The applicant indicated that for many years he lived as a person who complied with rules. He could not leave before discharge because he would be abandoning the police force. He indicated the migration authorities control departures. The Tribunal asked the applicant if he intended to return to Colombia when he first came to Australia. He acknowledged that he did intend to return to Colombia. He indicated he loved being a police officer, cleaning the streets of criminals.
The Tribunal noted from the delegate’s decision record that the applicant told the delegate that he advised his family to move to [Town 3] because of fear. The applicant confirmed [Town 3] is about 4½ hours from [Town 1]. The Tribunal noted the delegate recorded that his siblings’ [Social media] accounts have photos and identify their locations. It explained it may find his siblings’ [Social media] details do not indicate fear and this may cast doubt on his claim that he advised his siblings to move. It explained it may not accept his claim that his siblings were displaced from their usual residence and forced to change their lives. The applicant indicated his siblings are young and naïve. The Tribunal noted his evidence that his sister is [an Occupation] in Colombia, which might cast doubt on his evidence that she is naïve. It also explained that, if he had the difficulties with [Group 1], his siblings would have known about those threats. He acknowledged his siblings continue to communicate on [Social media]. He claimed however that he knows more about criminals than his siblings. He also indicated that violence in Colombia is normal and pervasive. The Tribunal asked, in those circumstances, why he has claimed that he advised them to move to [Town 3] if violence is everywhere in Colombia. He indicated the threats were not directed at his siblings; only against his wife and daughter. The Tribunal noted there was no evidence to suggest his wife and daughter were harmed. The applicant indicated his was because they took measures by staying with relatives and friends.
The Tribunal noted the applicant told the delegate that, after [Group 1] contacted him asking that he delete a person’s records, he received a text with the person’s details. However he has indicated he did not keep that text or the particulars. It explained it may form the view that he would have kept that text, a key piece of evidence, if he was genuinely threatened and fearful, given his experience in the police force. The applicant stated he got rid of everything because at the time he was not thinking. He indicated he thought the evidence was only useful for reporting to the police or the DPP. He did not know about refugee applications. The Tribunal indicated it might not accept this explanation, given the applicant was an educated police officer who has claimed he wanted to come to Australia to escape persecution.
The Tribunal noted the delegate raised a concern that the applicant did not know the dates of the calls, given their significance and the fact that he had worked as a police officer and would have known the importance of keeping a record of such particulars. The applicant indicated his studies were not advanced and in Colombia people do not apply for protection. He indicated all of the information was on his mobile phone but he decided to destroy it all.
The Tribunal noted the delegate recorded that the applicant had stated, as part of his training, he was advised to report corruption to his commander or the DPP. It asked why he did not do that, if it was the case that he received calls from [Mr A] and [Mr B] purporting to be from [Group 1]. The applicant stated colleagues told him he should cooperate. The Tribunal asked if more than one colleague told him to do this. He indicated there was only one he remembered, a colleague told him in November 2015. When asked for more particulars, the applicant said he received a call from a colleague, [Mr AA]. The Tribunal asked why he did not report this in accordance with his training. He indicated at the time he was too fearful and too scared.
The Tribunal noted the applicant indicated he avoided answering the phone as a way of putting off [Group 1]. It explained it may form the view that this does not indicate he was particularly fearful, or that [Group 1] were not particularly interested in him, as it may conclude they would have pursued him more rigorously for refusing to answer his phone. The applicant indicated he was scared and avoided them by saying he was far away. He claimed he took time to think about what he was going to do. He claimed he was not trained to deal with the situation. The Tribunal noted this appeared to be inconsistent with his evidence that he was trained to report it to his commander or the DPP.
The Tribunal noted the applicant has claimed he was called about once or twice a month over four months. It explained that it may form the view this does not suggest [Group 1] were particularly interested in recruiting him and, if they genuinely wanted a person’s details removed from the database, they would have been more persistent and not have waited so long for him to delete the data. The applicant claimed [Group 1] were in a lot of locations and the Colombian mountain areas had poor communication, hence the few calls. He suggested [Group 1] may not have known anyone else who could do it. He claimed he was the only officer with access to the data. The Tribunal questioned whether this was the case. He claimed he was the only officer with access to the Interpol database. The Tribunal indicated it may not accept this, and it may form the view his supervisor would have had at least the same access. It questioned how they could access the data if he was not at work. It also noted this appeared to be a new claim which might raise concerns about its veracity. The applicant indicated that perhaps he did not think of it before.
The Tribunal asked the applicant why he cannot return to Colombia, and why [Group 1] would be interested in him now, given his claims relate to events said to have occurred 5 years ago. The applicant referred to his mother being approached in September 2021. He said she had changed her residence but was visiting [Town 1]. The Tribunal questioned why [Group 1] would wait 5 years to approach a family member. He indicated she had previously been away from their home town so this was the first time she was back to [Town 1]. The Tribunal asked the applicant to reconcile that [Group 1] happened to be in [Town 1] when his mother visited for 8 days, with his evidence that [Group 1] did not often call him because they are located in the mountains. The applicant suggested perhaps they were just in the village on the occasion they approached his mother.
The Tribunal referred to the claim that his mother knew the men did not go to school with the applicant. It also referred to his evidence there were about 1000 students at his school. It explained that, even if it accepted men approached his mother, it may not accept she knew every boy who went to his school. The applicant indicated that, while there were 1000 students, different classes were held at different times of the day. There were morning classes and afternoon classes.
The Tribunal referred to the report from the psychologist dated November 2021. It asked the applicant about his consultations, why he obtained the report and whether he obtained the report to address the delegate’s concern that he could not remember the dates when contacted by [Group 1]. The applicant indicated the report was prepared as the result of therapy. He told the psychologist that he could not remember dates. In March 2018 he was under a lot of pressure so he consulted the psychologist. He saw him 7 times over 2018 to 2019. The Tribunal asked the applicant why he consulted an offshore psychologist rather than a locally based psychologist. The applicant indicated this was because of language difficulties. He admitted he did not look for a Spanish speaking psychologist in Sydney.
The Tribunal noted the psychologist described the applicant as consistent, coherent, logical, responsive, empathetic and receptive. It noted the only information he appears to have forgotten is the actual dates in September, November and December 2015 and February 2016. It explained this does not appear to be consistent with the symptoms he claims he suffered and the psychologist’s diagnosis of dissociative amnesia[2]. The Tribunal also noted the psychologist recorded that the applicant talked about the triggering events for anxiety and amnesia and appears to have accepted all of those claims. The Tribunal observed the psychologist accepted the applicant’s claims to have memory problems and amnesia, yet it observed the applicant was able to give him detailed particulars regarding his claims, except for the actual dates. It explained it may form the view the psychologist’s report does not appear to demonstrate symptoms of poor memory or lack of concentration. It also explained it may not accept the applicant suffers from dissociative amnesia merely because he cannot remember dates. The Tribunal also raised its concern that the psychologist appears to be advocating for the applicant as he states that there should be legal intervention to allow the applicant to remain in Australia. The applicant stated the psychologist is a professional and formed his own view.
[2] Dissociative amnesia is when a person can’t remember the details of a traumatic or stressful event, although they do realise they are experiencing memory loss. This is also known as psychogenic amnesia. This type of amnesia can last from a few days to one or more years. Dissociative amnesia may be linked to other disorders such as an anxiety disorder. Better Health Channel, Department of Health, Victoria Dissociation and dissociative disorders - Better Health Channel, accessed 8 December 2021
The Tribunal explained to the applicant that it may form the view he intended to come to Australia, given he obtained his passport in [2015], before the claimed contact with [Group 1], and did not depart Colombia immediately when his student visa was granted but waited until his retirement from police was approved. The applicant indicated, if that was the case, he would have started the process with the agent immediately. He stated, when he got his passport, he was only thinking of leaving Colombia. He used an Australian based education agent to get his student visa after seeing an ad in the paper. He then said he thinks his wife told him about the agent.

The Tribunal referred to the applicant’s new claim, that [Mr D], the police officer who was murdered, was his “great friend”. It asked why he had not made this claim previously. The applicant indicated he worked with the officer in the same department and he was a friend. He could not explain why he had not made the claim previously except to say there was no opportunity for him to mention this. The Tribunal asked him about [Mr D]’s age when he was murdered. He indicated he was 40 to 42 (the article the applicant provided records [Mr D] was 45). It asked when he was murdered. The applicant indicated it was in March 2014 (the article records it was in May 2014).
The Tribunal referred to the applicant’s claim that he would still be at risk in Colombia because [Group 1] threaten journalists, politicians, judges, and incorruptible police. It noted he did not report any corruption to the authorities so it may not be satisfied he has a record or a profile as being incorruptible. It explained it may not be satisfied the applicant has an adverse profile in Colombia, or that [Group 1] are interested in him. The applicant stated [Group 1] do not care; once a person does not comply they are targeted, blacklisted and there is a price on their head.
The Tribunal explained that it may not be satisfied the issues he has raised regarding his daughter’s difficulties in readjusting in Colombia would amount to serious or significant harm. The applicant indicated his daughter is not aware of the situation in Colombia. If they go back to Colombia they will have to keep moving and he will have to explain it to his daughter.
The Tribunal referred to the applicant’s country information about the murder of police in 2021 but noted he is no longer a police officer. The applicant indicate [Group 1] never forget.
The Tribunal asked the applicant if he came to Australia to work, as it noted he commenced work shortly after arriving here and did not apply for protection for over 6 months. It explained it may form the view the applicant applied for protection to achieve his preferred migration outcome and not because he fears serious or significant harm in Colombia. The applicant denied coming to Australia to work.
The applicant’s wife told the Tribunal that she hopes the Tribunal will allow the family to stay in Australia as she does not want to return to Colombia. When asked why she said before they came to Australia their tranquillity had been damaged.
The Tribunal asked the applicant if there was anything else he wished to add or to have taken into account. The applicant had no further evidence to give.

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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 and country information
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.
The Tribunal also takes into account the country information provided to the Tribunal by the applicant and other publicly available information referred to in this decision.

CONSIDERATION OF CLAIMS AND EVIDENCE

Nationality

The applicant presented to the Department his passport issued by the Republic of Colombia in [2015]. The Tribunal finds the applicant is a citizen of Colombia. When making the visa applications the second and third named applicants also provided copies of their Colombian passports issued in [2016]. The Tribunal will assess the claims accordingly, for the purposes of the applicant’s claim to be a refugee, and Colombia as the receiving country for the purposes of the complementary protection provisions.
Does the applicant meet the refugee criterion in s.36(2)(a)?
The Tribunal has considered the psychologist’s report dated 24 November 2021 provided by the applicant, prepared by [Mr E], practising in Colombia, after several online consultations with the applicant. [Mr E] has diagnosed dissociative amnesia, problems relating to disasters such as war or other hostilities, and generalised anxiety disorder. He recorded that the applicant reported that on occasions when he was trying to remember the details of stressful events he had feelings of anxiety, sweating, tachycardia and negative thoughts. The Tribunal did not observe the applicant had any of those symptoms during the hearing and he did not raise any concerns that he was unable to give his evidence because of those symptoms. The Tribunal notes [Mr E] recorded that the applicant’s anxiety had reduced with therapy which had “markedly decreased the probability that anxiety behaviour occurs, in situations of social interaction” and that his functioning had improved. While it accepts the applicant has suffered with anxiety, the Tribunal is satisfied he was able to give his evidence and present his arguments, engage with the process in a meaningful way and that he has had a fair hearing.
The Tribunal has some concerns that the psychologist appears to have accepted all of the applicant’s information without question and has reached his own conclusion that it is essential for the applicant to be able to stay in Australia with his wife and daughter. He recommended the applicant have psychological therapy to “facilitate social and legal or legal intervention so that the patient and his nuclear family remain protected in Australia, in their current environment”. He appears to have concluded the applicant is owed protection in Australia, which is not the responsibility of the psychologist. The Tribunal gave the applicant an opportunity to comment on its concerns that the psychologist appeared to be advocating on his behalf. He stated the psychologist is a professional and formed his own view. The Tribunal has taken this into account.
The applicant has provided documentary evidence verifying his employment as a police officer and recording his retirement. The delegate recorded that she found his evidence regarding him employment as a police officer to be persuasive. The applicant’s written evidence indicates he joined the police force in 2008 and started as a Patrol Officer. At his interview with the delegate he stated he worked as a Digital Officer from August 2014, and then worked as a Criminal Analyst in the Criminal Analyst section from July 2015 until he retired on 31 May 2016. The Tribunal accepts the applicant was employed in Colombia as a police officer as described.
The applicant has claimed that he was contacted by members of [Group 1], [Mr A] and [Mr B], by phone in September, November 2015 and February 2016 and by text message in December 2015. He has not been able to remember the actual dates of those contacts. The applicant has indicated that this is because of his memory problems due to his anxiety. The Tribunal notes it appears the only particulars the applicant is unable to remember are the actual dates in those months. The Tribunal takes into account that these claims relate to contacts occurring several years ago. It is of the view this in itself is not a reason to not accept the claims. However for the reasons set out below the Tribunal has concerns about whether these claims are true.
The applicant has claimed that [Group 1] harm family members in circumstances where a person does not comply with their requests. He told the Tribunal he feared for his wife’s and daughter’s safety. Yet the applicant travelled to Australia and left his wife and daughter in Colombia for 5 months. When discussing his siblings, the applicant told the Tribunal threats were not directed at his siblings; only against his wife and daughter. This evidence raises concerns for the Tribunal as to whether the applicant would have left his wife and daughter in Colombia and travelled to Australia alone if he received such threats and genuinely feared for their safety. The Tribunal has taken into account his claim that he could not afford to bring his wife and daughter to Australia and that she hid with family. However it notes the applicant’s evidence that his family is financially comfortable and he acknowledged the family had financial means. It notes his siblings are tertiary educated and his mother, who owns her own home, was paid commission buying and selling [Commodity]. It takes into account that the exchange rate was poor but notes he brought $10,000 to Australia. Given his claims he feared if [Group 1] found out he was no longer in Colombia, his family would be killed, the Tribunal finds it concerning that he was willing to leave his wife and daughter in Colombia and travel to Australia on his own.
The Tribunal also has concerns as to why he did not take his wife and daughter to a closer Latin American country if it was the case he feared for their safety and they had received threats. When this was raised with him he stated he wanted to go to a faraway country with safe borders. When the Tribunal raised its concern that he and his wife could have gone to a Latin American country to be safe, speak the same language and stay together, the applicant claimed that there was news that the illegal group was in other South American countries and he felt he would be safer here. He claimed he did not feel he would be safe, even in North America. The Tribunal is not persuaded this adequately explains why he would leave his wife and daughter in Colombia if it was the case that he feared serious harm because he had been contacted by [Group 1] who directed him to change data but he refused to do this and fled the country. It is of the view the applicant’s decision to leave his wife and daughter in Colombia, and not cross the border to a Latin American country with them, casts doubt on his claims that he and his family were threatened by [Group 1].
The Tribunal also notes that the applicant did not depart Colombia as soon as he was granted his student visa. He has claimed that he did not depart immediately because he was waiting for his retirement application to be confirmed. This raised concerns for the Tribunal as to whether he intended to return to Colombia. When asked about this he told the Tribunal that when he came to Australia he did intend to return to Colombia because he loved being a police officer. He also told the Tribunal that when he came to Australia his intention was to do a 6 month English course and then renew his student visa. However he did not do this because he could only afford another 6 month course due to the expense. The Tribunal is of the view this suggests that he came to Australia to study English, not to flee persecution and threats as he has claimed. It notes he told the psychologist that he left his country in 2016 in desperation which, in the Tribunal’s view, is not reflected by his decision to remain in Colombia for several weeks after his student visa was cancelled. It finds his decision to remain in Colombia until June 2016, after his student visa was granted in April 2016, casts some doubt on his claims.
The Tribunal takes into account that the applicant wanted his retirement approved by the police force before he departed Colombia. It accepts that the Colombian Military Penal Code addressing the issue of absence without permission, states that if an officer is absent without permission for more than 5 consecutive days, they will incur imprisonment. However it is not satisfied this would have applied to the applicant if he was outside the country. It also takes into account his claim that he did not want to abandon the police force but it notes he had already decided to leave. It notes his claim that the migration authorities control departures. However it notes he obtained his passport in [2015] because he intended to travel outside Colombia and that was before he decided to retire from the police force. The Tribunal does not accept the applicant would not have been able to depart Colombia before the retirement application was approved. The Tribunal is of the view the applicant was waiting for his retirement to be approved because, when he left Colombia in June 2016 holding the student visa, he was intending to return to Colombia, as he has stated. This casts doubt on his claims about being wanted by [Group 1] and to fear serious harm in Colombia.
The applicant’s Colombian passport was issued in [2015]. The Tribunal asked if he was thinking about travelling in 2015. He indicated they had been thinking about a holiday, taking his daughter to [Location] in [Country 2]. The Tribunal noted however that his wife’s and daughter’s passports were not issued until [2016], after he came to Australia, casting doubt on his claim that they were planning to take his daughter to [Location] in 2015. He could provide no adequate explanation for this. While the Tribunal is of the view this issue is not significant on its own, it does suggest that the applicant was already considering leaving Colombia, even if only temporarily, prior to September 2015 when he claims he was first contacted by [Group 1].
The applicant has claimed that in early December 2015 [Mr B] texted him the details of the individual whose records he was required to expunge. However he told the Tribunal he did not keep that text or the particulars. He stated he got rid of everything because at the time he was not thinking. The Tribunal is of the view that he would have kept that text, a key piece of evidence, if he was genuinely threatened and fearful, given his experience in the police force. The applicant indicated he thought the evidence was only useful for reporting to the police or the DPP. He claims he did not know about refugee applications. The Tribunal does not accept this adequately explains his failure to keep evidence of the requests from [Group 1], given he is educated and he told his psychologist that, because of these circumstances he was forced to search for security for himself, his wife and daughter, and left his country in 2016 in desperation, “with the pain of being forced to leave his family behind for the time being…(the applicant) arrived in a country where he was welcomed and began the task of saving his family, wife and daughter, taking them to Australia”. The Tribunal is of the view that if a police officer, studying [Subject 1], who would understand the importance of evidence, was leaving his country to seek safe refuge in another country because they feared serious harm, they would have brought with them any evidence of those claims, even if stressed and anxious. It takes into account his various explanations, including that his studies were not advanced, but is not satisfied he has explained the lack of evidence of those contacts. The applicant’s failure to bring with him any evidence of the contact from [Group 1] casts doubt on the veracity of his claims to have been contacted by [Group 1].
The Tribunal notes the applicant’s evidence that he was trained to report corruption to his commander or DPP. When this was raised with him at the hearing he stated that colleagues told him he should cooperate, suggesting there was more than one colleague. The Tribunal noted that his previous evidence indicated there was only one officer who told him to cooperate. When this was raised with him he changed his oral evidence and stated there was only one he remembered. When asked for more particulars he indicated a colleague, [Mr AA], told him in November 2015 to cooperate. The Tribunal notes this was 2 months after the first alleged contact in September 2015, albeit with a [member of Group 1] also named [Mr A]. When asked why he did not report this in accordance with his training, he indicated at the time he would have been too fearful and too scared. The Tribunal does not accept this adequately explains why the applicant, who claims to have been a committed police officer, did not report the contacts. Considering all this evidence, the Tribunal is not satisfied the applicant reported corruption to the authorities. It is not satisfied he has a profile as an incorruptible police officer.
The Tribunal however notes the applicant’s evidence on this issue is inconsistent and raises serious concerns about his credibility. The psychologist’s report provided to the Tribunal reports that he told the psychologist he “tried to convey this incident to his police colleagues, this was when (the applicant) entered into an existential crisis, as he felt abandoned by his own institution”. This is inconsistent with his evidence to the Tribunal that he did not report the contacts with [Group 1]. The applicant has not claimed previously, or since the report was written, that he tried to convey the incident but was let down. This inconsistency casts doubt on the applicant’s claims about the contacts from [Group 1] and the pressure from another officer, [Mr AA], to cooperate with [Group 1]. It also raises concerns about the reliability of other information recorded in the psychologist’s report, provided by the applicant.
The psychologist also recorded that the applicant reported he felt cornered, without legal or institutional support, and exposed so he quit his job. However, “after requesting to formally leave work, he still perceived and received threats, he was marked by the paramilitaries and the police force as a military objective, which at any time could make him disappear, murder him”. Given the inconsistencies in the applicant’s evidence and information recorded in the psychologist’s report, discussed above, the Tribunal is not satisfied it can rely on the information recorded in the report and does not accept it is reliable evidence that the applicant was marked by paramilitaries and the police force.

The Tribunal is also of the view the alleged infrequent contacts, is not reflective of genuine interest by [Group 1]. He has claimed he was contacted twice in September, once in November, texted in December 2015 and phoned in February 2016. He has claimed he avoided contact in January 2016 by not answering his phone. The Tribunal is of the view that, if [Group 1] were genuinely interested in pursuing the applicant for the purpose described, they would have been more rigorous in their pursuit of him. It is not satisfied he was able to explain this, by suggesting [Group 1] did not often call him because they are located in the mountains. It also finds this explanation is contradicted by the new claim that his mother was approached [Group 1] when shopping in the [Town 1] municipality. The Tribunal has considered his mother’s statutory declaration but has concerns her claims that she was approached by men in the [Town 1] municipality while at the market are not reliable. It does not accept that his mother would recognise all the males in the applicant’s school of 1000 students, even if she did know most of his friends. It is unpersuaded that the men looking older than the applicant is of any significance, given she has not seen the applicant in over 5 years. Also the Tribunal has serious doubt that [Group 1], nearly 6 years after the last claimed contact, would be pursuing the applicant and threatening that they are waiting for his return, particularly in circumstances where no family member has suffered any harm since the alleged events. It finds this evidence has been manufactured for the purposes of the review application.
The applicant made a new claim at the hearing indicating to the Tribunal that he was the only officer who had access to the Interpol database. The Tribunal does not accept this claim. It has formed the view such an arrangement would be impractical and that his supervisor would have had at least the same database access that he had. When questioned how the police would have been able to access the data if he was not at work, noting it was a new claim, the applicant merely indicated that perhaps he did not think of it before. The Tribunal is of the view the applicant has manufactured the claim that he was the only police officer with Interpol database access.
The Tribunal also notes that in his written application, the applicant has claimed his mother and siblings went into hiding in [Province]. However the delegate records that the siblings’ [Social media] entries cast serious doubt on this claim as his siblings’ accounts included public photographs and identified their locations in Colombia. The applicant then changed his evidence about his siblings going into hiding. He claimed he tried to inform his siblings that they could be targets but it was up to them how they lived their lives. He told the Tribunal they are young and naïve, and he knows more about criminals. The Tribunal notes however his evidence that his sister is [an Occupation] in Colombia. It is not persuaded [an Occupation] in Colombia would be naïve about threats from [Group 1]. He then argued that violence in Colombia is normal and pervasive. The Tribunal asked, in those circumstances, why he has claimed he advised them to move to [Town 3] if violence is everywhere in Colombia. He then indicated the threats were not directed at his siblings; only against his wife and daughter. Considered overall the Tribunal is of the view the applicant’s evidence about his siblings is problematic. He has not been able to adequately explain why he stated in his written application that his siblings went into hiding when his other evidence and their [Social media] account entries, as described in the delegate’s decision record, provided to the Tribunal by the applicant, contradict this claim. Overall the Tribunal finds the applicant has manufactured the claim that his siblings went into hiding. This casts serious doubt on his credibility.
The applicant now claims that his colleague since 2012 and “great friend” [Mr D], was murdered. He provided a newspaper report about this claim. When asked why he did not make the claim until December 2021, he stated there was no opportunity for him to mention this. The Tribunal is not satisfied the applicant, represented by a registered migration agent, did not have previous opportunities to raise the claim. Based on the newspaper report the Tribunal accepts [Mr D], a police officer, was murdered in his home. It notes his evidence about his friend’s age and date of death are not consistent with the information in the report he provided. While these are minor inconsistencies, the Tribunal is not satisfied [Mr D] was his “great friend” because it is of the view, if that was the case, the applicant would have raised the information before December 2021. The Tribunal accepts [Mr D] was murdered in his home in May 2014. The applicant has not claimed he will be harmed because he was a “great friend” of his former colleague. The Tribunal is not satisfied the applicant has an adverse profile because of any association with [Mr D]. It is not satisfied he will suffer serious or significant harm because of any association with [Mr D] if he returns to Colombia in the reasonably foreseeable future.
The Tribunal accepts the country information provided by the applicant recording that there has been an internal dispute in the [City] police in March 2021 because 6 police officers were accused of being corrupt. It notes however that the applicant is no longer a police officer, and has not worked in Colombia as a police officer for several years. It is not satisfied he will be associated with this.
The Tribunal takes into account the country information provided by the applicant indicating [Group 1] kills politicians, public officials and advisors, journalists, judges, and incorruptible police. The Tribunal is not satisfied the applicant holds any of those roles. It has found he does not have a profile as an incorruptible police officer. Accordingly it is not satisfied there is a real chance the applicant faces serious harm from [Group 1] because of any profile [Group 1] consider to be adverse.
The Tribunal also notes that the applicant did not apply for protection until December 2016, about 6 months after he arrived in Australia in June 2016. It notes his evidence regarding his intention when he came here, that he intended to complete an English course and then renew his student visa. However he could only afford to do this. The Tribunal is of the view this strongly indicates the applicant’s protection visa application was made as a visa application of last resort because he could not afford to continue studying in Australia.
Considered overall the Tribunal has serious concerns about the reliability of the applicant’s evidence. It is of the view he has manufactured claims to support his protection visa application. It is not satisfied it can rely on his evidence that he was contacted by [Group 1] members and directed to expunge the records of a person, as he has claimed. It does not accept he was the only police officer with data or Interpol access. Nor does it accept that a fellow police officer told him to cooperate with [Group 1]. It is not satisfied he was “marked by the paramilitary” as he told his psychologist because it does not accept his claims to have not complied with [Group 1]’s demands. It is of the view he would not have stayed in Colombia until June 2016, after his student visa was granted in April 2016, if he was marked by [Group 1]. It is not satisfied his explanation, that he was waiting for his retirement to be approved, explains his decision to remain in Colombia. It does not accept he came to Australia because he feared harm, or that he was threatened, or that his wife, daughter, or any other family member was threatened. Accordingly it does not accept he has an adverse profile with [Group 1] or any other paramilitary organisation in Colombia. It does not accept he is on a [Group 1] wanted list. It does not accept he has a profile as an incorruptible police officer because there is no reliable evidence to indicate he approached the authorities about the alleged contacts from [Group 1]. The Tribunal is not satisfied the applicant has an adverse profile in Colombia as a consequence of his claims to have been directed by [Group 1] to expunge a person’s records, and to have not done this, such that there is a real chance he will face serious harm if he returns to Colombia in the foreseeable future.
The Tribunal has considered the applicant’s claims that his [daughter], the third named applicant, will suffer sociocultural shock and will be exposed to danger if she returns to Colombia. The representative indicated she demonstrated behavioural problems in her early school years reflecting the family’s stress. The Tribunal accepts the third named applicant has settled in Australia and the family may prefer that she remains here. However it is satisfied that she will be supported by her parents and her family if she returns to Colombia in the foreseeable future. It notes the applicant has the resources to consult a psychologist and it is satisfied he will provide his daughter with similar resources if need be. The applicant has claimed that if they go back to Colombia they will have to keep moving and he will have to explain it to his daughter. The Tribunal does not accept that the family will need to keep moving. It notes his wife and daughter were not harmed in Colombia after he came to Australia, despite the applicant’s claims. It also notes that there is no evidence his mother or siblings have been harmed. It is not satisfied there is a real chance the applicant or his wife or daughter face a real chance of serious harm if they return to Colombia in the foreseeable future, because the applicant was a police officer who refused to comply with directions from [Group 1] members to expunge a person’s data, or for any other reason. It is not satisfied there is a real chance any of the applicants will suffer serious harm if the daughter has difficulties settling in on her return to Colombia.
The Tribunal notes the applicant has claimed that his uncle by marriage was murdered by [Group 2]. This is referred to by the psychologist as [Mr E] recorded that the applicant reported he and his family experienced “a frightening event of violence by these outlaw groups, when the latter murdered all the political members of the town administration where the applicant and his family resided”, resulting in a relative’s death. The Tribunal accepts there has been a history of conflict in Colombia that has resulted in deaths. It accepts that it is quite possible the applicant has a uncle who died in 2006 as the result of conflict between the Colombian authorities and guerrilla groups. However there is no reliable evidence before the Tribunal to indicate that there is a real chance the applicant faces serious harm because of his association with the uncle who died in 2006.
The Tribunal takes into account the second named applicant’s evidence that in Colombia their tranquillity was damaged. It is not satisfied her evidence overcomes the problems arising due to the inconsistencies in, and concerns with, the applicant’s evidence.
The Tribunal has considered the applicant’s claims individually and cumulatively. Overall having considered all of the evidence and the country information, in light of its findings above, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm because of his former employment as a police officer, or his psychological condition, or his uncle’s murder in 2006, or his daughter’s difficulties or for any other reason. It is not satisfied the third named applicant faces a real chance of serious harm if she returns to Colombia in the foreseeable future and is challenged by cultural differences. It is not satisfied the applicants face a real chance of serious harm for any reason if they return to Colombia, now or in the reasonably foreseeable future. The Tribunal is not satisfied any of the applicants meets the criterion set out in s.36(2)(a) of the Act.

Does the applicant meet the complementary protection criterion?

100.Having found that the applicants do not meet the refugee criterion, the Tribunal has considered whether, on the evidence before it, there is a real risk any of the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia and returned to Colombia.
101.The Tribunal has taken into account the applicant has been diagnosed with dissociative amnesia and an anxiety disorder. It notes he has sought the assistance of a psychologist in Colombia so it is satisfied he will be able to pursue that treatment with [Mr E] if his anxiety continues to be a problem. It is also satisfied he has family support in Colombia. It is satisfied he will provide similar support for his daughter if she has difficulty resettling. It is not satisfied any of the applicants face a real risk of significant harm because of psychological conditions.
102.With respect to the claims about crime in Colombia, the Tribunal notes there is no evidence to suggest the applicant or his family have suffered harm because of crime in Colombia. It is not satisfied there is a real risk the applicant, or his wife or daughter, will be targeted and harmed in Colombia.
103.Having considered all of the evidence in this case, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Colombia, there is a real risk that the applicant will suffer significant harm. It is not satisfied he meets s.36(2)(aa). Nor is it satisfied the second or third named applicant meet s.36(2)(aa).
Conclusion

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

DECISION

The Tribunal affirms the decision not to grant the applicants protection visas.

Denise Connolly
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

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

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.
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.
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.
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.
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.

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

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.
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.

…

Protection visas – criteria provided for by this Act

…

A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

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

[2022] AATA 1069

22 February 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction