1712110 (Refugee)

1712110 (Refugee) [2022] AATA 516 (5 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712110
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Denise Connolly
DATE:5 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 05 January 2022 at 10:13am
CATCHWORDS
REFUGEE – protection visa – Colombia – fear of harm from paramilitary group – women’s rights activist through work and community organisations – kidnap and rape, and death threats – physical injury and post-traumatic anxiety after motor vehicle accidents in Australia – prevalence of COVID-19 and government’s response in home country – inconsistent claims and evidence – return to same area after first visit to Australia – delay in applying for protection on second visit – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Colombia, applied for the visa on 15 October 2013 and the delegate refused to grant the visa on 19 May 2017.
The applicant appeared before the Tribunal on 9 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.
CLAIMS AND EVIDENCE
Background to review
When making the visa application the applicant made the following claims. She was born in Bogota, Colombia in [Year]. She has never married. She has travelled twice to Australia as the holder of a student visa, most recently arriving in Australia in December 2011. She was granted a further student visa in June 2012. She had previously travelled to Australia holding a student visa in March 2009. She was awarded a Bachelor of [Subject] in Colombia before travelling to Australia. She studied English in Australia. She worked in Colombia as [an Occupation 1] for [Company 1], at a [workplace] and for her father’s [business]. The applicant provided to the Department a copy of her passport which records that she had travelled outside Colombia. She stated in the visa application that she travelled to [Country 1] and [Country 2] in 2007/2008 for work and holidays.
In a written submission prepared by the applicant’s representative the following claims were made. The applicant fears persecution at the hands of paramilitary groups (known as [Paramilitary group] – a criminal paramilitary organisation) in Colombia who have threatened to kill her due to her work with women in Soacha (45 minutes from her home in Bogota). She is a member of “a particular social group – women - through her job she empowered women to become financially independent and breakdown the cycle of Domestic Violence”. The applicant worked as a manager and supervisor in [Soacha] for [Company 1]. She had [Number 1] women working for her. She provided education in business, marketing, customer service and women’s health. She came into contact with victims of domestic violence. She had a confrontation with the partner of a woman who she assisted. He was a member of the [Paramilitary group] in Soacha. She was bitten, raped and threatened with death. She was identified as a community leader. Accordingly she was subjected to persecution by [Paramilitary group] members due to her involvement with women in Soacha.
The representative provided country information from 2005 to 2012 regarding the [Paramilitary group] and their criminal activity, including rape, extortion and drug trafficking, and the state’s response, and information about sexual assault and violence in Colombia, and in Soacha in particular.
The applicant provided evidence that she was employed by [Company 1] from October 2004 to July 2008 as an area manager in Soacha.
Prior to her interview with the delegate the applicant provided a statement in which she stated that after she completed her tertiary studies she worked for [Company 1], and her father’s [business] doing accounting and administrative tasks. She also worked for a [workplace]. In her [Company 1] role she started out with [Number 2] women and ultimately managed [Number 1] women. She was involved in a [project] which assisted women working for [Company 1] to achieve independence by providing information. There were a significant number of displaced people in Soacha due to social and political violence. The area has a known paramilitary presence, dedicated to “social cleansing”, killing community leaders and NGO workers, and destabilising government.
The applicant submitted that Colombia has a significant rate of domestic violence but the authorities are indifferent and negligent, and the justice system is ineffective in dealing with the problem. Perpetrators have no fear of the authorities. In her [Company 1] role she organised courses on a range of topics, including domestic violence, women’s health and rights. She placed ads in shops and bakeries and sent out invitations. She connected with women who attended the talks and worked with women from the Neighbourhood Action Committees. She spoke at their meetings about working for [Company 1]. She worked with NGOs to reach more women who facilitated the promotion of [Company 1]’s social work in the area.
The applicant claimed she received a threat via a debt collector and was warned to stop getting involved with women in Soacha, or she would be killed for meddling. She believed this was because she was assisting women achieve financial independence. A community leader told her that her name was on a [Paramilitary group] blacklist and they were going to kill her because they did not like what she was doing. However she continued to do her job until there was an incident that changed her life. At a training session a young woman, [Ms A], attended with a bruised face. She told the applicant she had fallen. The applicant encouraged her to go to the police and accompanied her where she made a report, after which she contacted the neighbourhood action committee leader who made a report to the community legal centre. It turned out the woman’s partner was a [Paramilitary group member] in Soacha, known as [Mr B]. She later found out that the woman had been hit again and hospitalised for some days. That week she received texts, messages on her phone and anonymous calls threatening her life and demanding she leave the area. She was already on the paramilitary’s blacklist so she could no longer work in the area. She notified [Company 1] and repeatedly asked to be moved to another area. Her boss promised this but did not follow through. Ultimately [Company 1] dismissed her in July 2008, accusing her of jeopardising the company name. A community leader claimed that a group of men had been asking about her and said she was a military target. She later found out that community leader had to flee the area. The applicant and her family decided she should leave Colombia.
The applicant came to Australia as a student of English in March 2009. After her arrival an agent made a mistake in the application to extend her student visa and she had to leave Australia. She provided evidence that she tried to secure a [Country 3] visa but was not successful because, by then, she held a bridging visa. She tried to go to [Country 4] but did not have a return ticket to Colombia so they would not let her board the flight. She had to return to Colombia [in] January 2010 where she went into hiding. Her father asked her to start working for him, which she did from her home. Her church pastor gave her advice and she contacted a [Employer 2 representative] in March 2011 and started working in Northern Bogota. In May 2011 her father told her someone contacted the [business] looking for her, stating they had seen her in Bogota. She immediately left [Employer 2] and went into hiding. In October 2011 she was shopping at a commercial centre where she was approached by two men who said “you are the one from [Company 1]”. They placed a weapon on her back and threatened to shoot her. They told her to go with them. They put her in a car, blindfolded her and took her to a dark, damp room. She was then raped, beaten and insulted by a number of men, including a black man, [Mr B], who said “this is what a bitch like you deserves. Be grateful that I am not killing you. Because of you I was jailed for 6 months.” The applicant lost consciousness. She was left in a rural area near Soacha. A peasant couple found her and took her to their home where she was treated by a medical student on his rural placement. She was afraid so decided to apply for another Australian student visa, which was granted in November 2011. She arrived in Australia [in] December 2011. Since then she studied and worked in Australia.
The applicant provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was interviewed by the delegate on 5 May 2014. The Tribunal has listened to the interview recording. Some of her oral evidence is recorded in the decision record.
The delegate noted that the applicant was able to describe in detail her work with [Company 1], including her involvement in promoting women’s rights. She also gave evidence about issues for women in Colombia, including domestic violence.
With respect to threats the applicant stated she was first threatened in June 2006 when a staff member collecting money told her that he was to give her a message not to go to that area anymore or they would kill her. The applicant said she ceased attending the area for around 3 months but she then returned to work in the area because threats are part of life in Colombia and many people receive them. She stated she returned because she had not received any further threats and felt a sense of social obligation to the women she was working with. She stated she sought relocation but [Company 1] would not agree and terminated her employment.
While the delegate accepted the applicant worked for [Company 1] and participated in promoting women’s rights, they did not accept that the applicant would have returned to the area if she had received death threats. Nor did the delegate accept that [Company 1] would have refused to accommodate the applicant’s wishes, given she was a valued employee and [Company 1]’s commitment to promoting women’s rights.
The delegate noted that the applicant returned to Colombia from Australia and remained there for 2 years. Departmental records confirm she did not apply for another visa to return to Australia in that 2 year period. The delegate also noted that, on returning to Australia, she did not apply for protection for nearly 2 years. She claimed she was not aware of the protection visa program. The delegate did not accept this given the applicant’s claim to be involved in human rights work. It was also noted she is well educated and had facilitated her own travel to Australia on 2 occasions. This led the delegate to doubt her claims to fear harm, or to have an adverse profile with the [Paramilitary group]. The delegate was not satisfied there was persuasive evidence to demonstrate the applicant had a profile in Colombia as a women’s rights activist. The delegate accepted a person engaged in activism at the local level might attract unwanted attention from the [Paramilitary group] but did not accept the evidence supported her claim that she would be targeted on her return. The delegate also concluded relocation was an option for the applicant.
Evidence to the Tribunal
At the hearing, the applicant presented to the Tribunal several documents, some of which had previously been provided. She provided new country information, relevant parts of which she highlighted for the Tribunal’s attention, concerning the [Paramilitary group’s] ongoing targeting of progressive political groups, social leaders, politicians and human rights workers. The information describes their organisational structure and modus operandi.
One recent article records that the [Paramilitary group] have been responsible for many violent acts, including sexual and gender based violence, disappearances and many homicides. Another article records the brutal killing of a lawyer/taxi driver who was beaten to death by police, having been apprehended during a lockdown for breaching curfew and social distancing regulations. Others were killed by police during related protests. One article reports that social leaders are under threat in Colombia during lockdowns and that 100 were killed in the first 6 months of the pandemic. An article reports that human rights defenders were murdered in 2020, including during gunfire between soldiers and paramilitary. It reports that trade unionists and teachers are targeted and the [Paramilitary group] distribute pamphlets with threats against journalists, political leaders and congress members.
The applicant also provided a recent report from Amnesty International regarding human rights in the Americas. It reports that there were protests and accompanying violence regarding austerity measures and that the [Paramilitary group] continue to be of concern.
At the hearing the applicant provided to the Tribunal the following oral evidence. She confirmed that she came to Australia in March 2009 to study English and, after departing Australia in January 2010, returned in December 2011 holding a student visa to study English. She then completed a one year English course, having been granted another student visa onshore.
The applicant stated she has lived alone in Sydney suburbs. She brought $1500 with her from Colombia. She secured employment as soon as she arrived, as [an Occupation 2] and at [Employer 3]. She has now established her own [Occupation 2] business earning about $1000 a week. Her parents, who are separated, and siblings live in Bogota. She has numerous siblings and half siblings. Her mother has, in the past, provided her with financial support. Until recently her mother worked as [an Occupation 3] in the [Employer 4]. She recently retired but works part-time. Her father runs a [business]. She has contact with family members. She was in a relationship in Australia but it ended about a year ago.
The applicant completed tertiary study in Colombia and was awarded a Bachelor of [Subject]. She started working for [Company 1] in 2004 and left in September 2008. She was paid a base salary and commission and earned a reasonable income. However the business was affected by the global financial crisis in 2008 and sales went down. This was when [Company 1] ended her contract.
Initially the applicant told the Tribunal [Company 1] ended the contract because she was not fulfilling her sales targets. She then added that around this time she was having problems with personal safety because she asked [Company 1] to change her zone. She was working in a neighbourhood influenced by the [Paramilitary group] where there were a lot of displaced people and poverty. The Tribunal asked how that neighbourhood could afford to buy [Company 1] products. She claimed people still had disposable income and some housewives lived quite well. [Company 1] was not just [Products 1]; they also sold [Products 2]. When asked to describe her job, the applicant stated it consisted mainly of generating income from the representatives’ sales, for which she received commission and given incentives for selling new products.
The Tribunal noted that the [Company 1] letter did not record that she was dismissed. The applicant acknowledged this was not stated in the letter. She got the letter as evidence of the zone she worked in, Soacha, famous for gangs and criminal activity. She did not live in this area; she lived about 45 minutes away. The Tribunal asked if she had an office in Soacha. She did not have an office but she sometimes used the community centre’s space.
The Tribunal asked the applicant about her work at [Employer 2]. She indicated she worked there for only 2 months, from March to May 2011. She lived with her mother at the time. She was also working for her father’s [business] until she came to Australia.
The Tribunal asked the applicant why she cannot return to Colombia. She stated the social situation in Colombia has deteriorated since she was last there. The [Paramilitary group] are rampant and Covid is unmanaged. The police do not provide protection. She is afraid she will put her family at risk if she returns to Colombia. She confirmed nothing has happened to them since she came to Australia in 2011 but she fears she will endanger them because of her profile.
The Tribunal noted the applicant is educated and has been able to establish herself in another country and appears to be enterprising, independent and self-employed. It asked why she cannot re-establish herself in Colombia, particularly given she speaks the language, has a large family with resources and the time that has passed since her [Company 1] employment. The applicant agreed all this is true but is of the view if she returned to Colombia she would be stuck at home. She claimed she worked for her father’s [business] from home.
The Tribunal asked the applicant when she first experienced difficulties/threats in Colombia. The applicant stated it was in September 2007 when she received the first threat. When asked to be more specific she indicated she received a text message from a debt collector who told her she better not return to the Soacha area because they were going to kill her. The Tribunal asked the applicant to confirm the timing of the first threat. She was emphatic that it was in September 2007. The Tribunal asked the applicant what she did in response. She stated she spoke to her boss and asked to move to another zone. However he did not help her. She showed her boss the text message and he told her to be careful. The Tribunal asked the applicant is she returned to the area. She stated emphatically that she did not return to the area after receiving the threat.
The Tribunal asked the applicant if anything else happened to her to make her fearful. The applicant stated that a community leader told her that her name was on a blacklist. That leader had to leave the area around the end of 2007 because her brother had problems with the [Paramilitary group].
The Tribunal asked the applicant if she considered relocating after she received the threat. She stated she did not consider relocating; she continued to live with her mother. The Tribunal asked why she did not consider relocating if she feared harm from the [Paramilitary group] in the area. The applicant stated it was not easy to relocate. Her boss would not help her by changing her zone. The Tribunal asked the applicant why she did not resign from [Company 1] and move to safety, given her education and capacity to secure other employment, including with her father’s [business]. The applicant stated she did not want to leave [Company 1] because she was hoping to buy her own flat and she needed proof she had secure employment so she could borrow money. She claimed her father did not pay her much money. The Tribunal raised its concern that her decision to remain in the [Company 1] employment for those reasons, despite threats from the [Paramilitary group], might cast doubt on her claims. The applicant said it was complicated – the zone was dangerous but she thought the situation would improve.

The Tribunal raised its concern that she did not apply for protection during her first period in Australia and she returned to Colombia, where she stayed for 2 years before attempting to leave again. The applicant said she wanted to go to [Country 2] but she had problems getting a visa. She claimed she did not know anything about protection visas; she just worked in sales. The Tribunal noted she has claimed to have been involved in human rights work and she is tertiary educated. It explained it may not accept, given her circumstances, that she did not know about protection visas until 2013.
The Tribunal asked the applicant about her other claims. The applicant stated after she returned to Colombia, in October 2010, she was kidnapped and raped. The Tribunal asked the applicant if she was comfortable discussing this claim using a male interpreter. She indicated she did not have any objection to the Tribunal being assisted by a male interpreter. She provided some particulars of the assault, consistent with her written claims.
The Tribunal raised with the applicant that she had stated in her written claims that the assault took place in October 2011. The applicant stated she thought she was in Australia in October 2011. She repeated that the assault occurred in October 2010, when 2 men approached her and said “you are the [Company 1] girl”. The Tribunal raised with the applicant that her own written evidence indicates she returned to Australia in December 2011. The applicant asked for a break because she was getting confused. The Tribunal agreed.
After a break the applicant stated the incident occurred on 26 October 2011. She was shopping and 2 men approached her and said “you are the [Company 1] girl. Come with us or we will shoot you”. She felt something on her back and believed it was a weapon. They blindfolded her and took her to a dark room. Then a man entered, [Mr B].
The Tribunal asked her about the circumstances in which she was captured. She indicated she was in a shopping mall buying food. She had travelled there by public transport. It was close to where she lived. It was not busy but there were other people around. The Tribunal asked if anyone would have noticed that the men held a weapon to her back. She indicated she could not tell – people are indifferent in Colombia. The Tribunal asked if she screamed. She denied screaming. It asked if she recognised the men. She denied recognising them. It asked how she knew they were [Paramilitary group]. She stated when [Mr B] came into the room he told her he was the husband of the woman she helped. The Tribunal asked the applicant for the particulars what he said to her when he came into the room. She stated he told her “I am the husband of [Ms A]”. The Tribunal asked the applicant when she had helped [Ms A]. She stated it was in 2007, around the time she received the death threat via the debt collector.
The Tribunal asked the applicant how she helped [Ms A]. She stated [Ms A] came to a meetings and was bruised. The applicant offered to help her report it. They went to the House of Justice (a small court) to report the assault. The Tribunal asked when they did this. She stated it was in September or October 2007. The Tribunal asked the applicant why she accompanied [Ms A] to the House of Justice. She indicated she convinced her to present her case. She stated [Ms A] had been harmed before. The Tribunal asked if there was any connection between her taking [Ms A] to the House of Justice and the warning conveyed by the debt collector not to return to the area. She thought it might have been a catalyst for the warning not to return to the area.
The Tribunal asked the applicant to provide further particulars of what [Mr B] had said to her when she was taken to the dark room. She said that he said “this is going to cost you dearly. You have crossed me.” He also swore at her. The Tribunal asked if there was anything she wanted to tell the Tribunal about [Mr B]. She stated he raped her first, then the others. The Tribunal asked if she could remember what he looked like and she stated she could remember but she did not offer any description. It asked if there were any other relevant particulars she wanted to put to the Tribunal about this incident or [Mr B]. She indicated she did not have other evidence but she believed she was a [Paramilitary group] target because of the social work she undertook and the help she provided women to improve their status and earn income. She stated she actively participated in the community and had [Number 1] representatives working for her. She was well known in the community and the ladies trusted her.
The Tribunal asked the applicant if, after returning to Colombia in January 2010, anything else happened to the applicant before the assault in October 2011. She indicated nothing happened. The Tribunal explained it may not accept she was living a reclusive life the whole time given nothing had happened. It also noted she worked for [Employer 2] for 2 months. She stated that work was in North Bogota, nowhere near Soacha, and she was selling mostly by phone. She only went out occasionally. She could do [her father’s business] work from home.
The Tribunal raised with the applicant its concern that, in her written claims and to the delegate, she claimed that the debt collector told her about the threat in June 2006 but to the Tribunal she indicated it was September 2007. The applicant indicated she has had personal problems that have affected her memory. She had car accidents in 2019 and May 2021 and has been diagnosed with PTSD for which she is having psychological treatment.
The Tribunal raised its concern that the applicant told the delegate she returned to the area after the debt collector conveyed the threat because she had not received any further threats and she felt a sense of social obligation to the women she was working with. It noted however that she was told the Tribunal emphatically that she did not return to the area after receiving the threat. The applicant told the Tribunal that she has memory problems. The Tribunal explained it may not accept that a memory problem provides an adequate explanation for this inconsistency as it may find this particular issue is significant and highly relevant to her claim to have feared the [Paramilitary group]. The applicant stated the PTSD specialist told her she has suffered a lot of trauma.
The Tribunal raised its concern that the applicant did not repeat the claim that [Mr B] said “Because of you I was jailed for 6 months.” Nor did she describe in her oral evidence his physical appearance as she had in her written application. It explained it may form the view his incarceration is a significant aspect of the claim, and one that would not be forgotten, because it provides such a strong motive to seek revenge. The applicant stated she now remembers he was a black man. She indicated she was stressed and embarrassed.
The Tribunal asked the applicant why she did not relocate in Colombia after receiving the first threat. The applicant stated that she was working for [Company 1] involved in the promotion of women’s rights. She repeated her claim that she sought to be transferred but, despite the manager’s promise, [Company 1] would not transfer her.
The Tribunal raised the possibility that, even if it accepts her claims, it may find relocation may be a reasonable and achievable option in her circumstances. It also asked why she did not consider going to another South American country where she would speak the language and be in closer proximity to her supportive family. The applicant stated she did not consider relocation to a South American country because she wanted to learn English. She came to Australia to study and learn English.
The Tribunal explained it may not accept she has a profile as a women’s or human rights activist such that she would be of adverse interest to the [Paramilitary group]. The applicant repeated that she believes she has a profile for working with community leaders and NGOs in Colombia, but she did not do this work under contract. She indicated it could be bad for her mother if she returns because of her [Company 1] work. She stated the [Paramilitary group] are all over Colombia so she cannot relocate.
The Tribunal asked the applicant if she had any further evidence to give. She asked for more time. The Tribunal discussed with her that it would only agree to give her more time if there was utility in doing so. She indicated she wanted to obtain more country information about the social situation in Colombia. The Tribunal discussed with the applicant the new country information she provided which addressed the social situation in Colombia. She indicated that, now that she has clarity around the issues, there might be more information she could obtain. The Tribunal explained that it would not agree to provide the applicant with more time to provide country information, given she was not specific about what she wanted to provide and she had provided country information about the social situation in Colombia.
After the hearing the applicant provided medical evidence relating to her motor vehicle accident in May 2021, including a certificate of fitness indicating she suffers post traumatic anxiety following the MVA, a letter from [Dr C] dated 13 May 2021 indicating she required a referral to a psychologist after the car accident as she was experiencing post traumatic anxiety, and a liability notice indicating she would receive benefits until November 2021. She also provided another liability notice indicating she had an MVA in 2019, for which she received benefits. It records that she suffered a L5/S1 disc bulge and a soft tissue injury.
She also provided a written statement in which she submitted her memory problem has been aggravated by the MVAs, in June 2019 and May 2021. She described her employment history in Australia and indicated that she has forgotten to [do some job tasks] because of her memory problems. She stated her psychologist has advised her memory problems are normal and associated with the MVAs.
RELEVANT LAW
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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant presented to the Department her passport issued by the Republic of Colombia. The Tribunal finds the applicant is a citizen of Colombia. The Tribunal will assess the claims accordingly, for the purposes of the applicant’s claim to be a refugee, and as the receiving country for the purposes of the complementary protection provisions in s.36(2)(aa).
Does the applicant meet the refugee criterion in s.36(2)(a)?
The Tribunal has considered the applicant’s claims and evidence. For the following reasons it is not satisfied the applicant meets the refugee criterion in s.36(2)(a) of the Act.
The Tribunal has taken into account the applicant’s psychological evidence indicating she is suffering from post traumatic anxiety. It notes that evidence indicates her current condition follows a recent MVA. There is no medical evidence indicating her condition is a consequence of any harm suffered in Colombia. The Tribunal accepts her post traumatic anxiety may impact on her memory. It notes her claim that it has led to her forgetting to [do job tasks]. However, for the reasons discussed below, it is not satisfied this condition explains some significant problems with her evidence. The Tribunal also notes her medical evidence records that she has suffered a back injury. She did not indicate that this impacted on her capacity to participate meaningfully in the hearing process. The Tribunal observed the applicant was articulate in her responses, able to engage with the Tribunal and answer its questions in detail. It also notes she has been working in her own business as [an Occupation 1]. It raised with her whether she had any concerns about the use of a male interpreter given the nature of some of her claims. She indicated she had no objection to using a male interpreter. Overall the Tribunal is satisfied that, during the hearing, the applicant was able to give her evidence and present her arguments in a meaningful way. It is satisfied the applicant has had a fair hearing.
On the basis of the applicant’s written material and oral evidence the Tribunal accepts the applicant has a tertiary qualification. It accepts her parents and several siblings live and work in Bogota and she continues to have contact with family members.
On the basis of the letter from [Company 1] and the applicant’s written and oral evidence, the Tribunal is satisfied the applicant was employed as a manager for [Company 1] in the Soacha area from October 2004 to July 2008 and increased the number of [Company 1] representatives from [Number 2] to [Number 1] women. The Tribunal has considered the applicant’s claim that she was dismissed because [Company 1] accused her of jeopardising the company name however it is not satisfied this was the case. The [Company 1] letter does not indicate she was dismissed. Her own oral evidence to the Tribunal indicates she was dismissed for not fulfilling her sales targets. The Tribunal is persuaded by this because it notes she was dismissed at the height of the global financial crisis when, for many people, disposable income was limited. It also notes her evidence that [Company 1] supported the [project] so it has difficulty accepting [Company 1] would find her support of women enduring domestic violence to be jeopardising the company’s reputation.
The Tribunal accepts that the applicant was involved in [Company 1]’s project aimed at assisting women to develop financial independence, to the extent that she encouraged them to work as [Company 1] representatives. This is demonstrated by her success at recruiting a further [Number 3] representatives during her employment. However it is not satisfied that her involvement led to her having a profile as a women’s rights activist or a community leader such that she attracted the adverse attention of the [Paramilitary group]. Even taking into account her memory problems it finds the inconsistencies in her evidence regarding her response to the debt collector’s warning to be highly problematic. It notes from the delegate’s decision record, which she provided to the Tribunal, that she told the delegate she was first threatened in June 2006 when the debt collector gave her a message not to go to that area anymore or they would kill her. The applicant told the delegate she ceased attending the area for 3 months but returned to work in the area because threats are part of life in Colombia and many people receive them. She stated she returned because she had not received any further threats and felt a sense of social obligation to the women she was working with. However she told the Tribunal she first encountered problems in September 2007 when she received a text message from a debt collector who told her she better not return to the area because they were going to kill her. When asked if she returned to the area she stated emphatically that she did not return to the area after receiving the threat. While the Tribunal accepts the inconsistency in the timing may not be significant, it is not satisfied the applicant’s current anxiety explains the inconsistency in her evidence regarding her return to the area. The Tribunal is of the view that, if the applicant returned to the area because of a sense of social obligation or because threats are a common occurrence in Colombia, she would have remembered this. It finds her inconsistency on the issue of whether she returned to the area after receiving the threat to be problematic, and casts doubt on the claim that she received a serious threat.
The Tribunal has some doubts that the applicant, as the [Company 1] manager, would have accompanied [Ms A], to the police or the House of Justice, in circumstances where there were NGOs and community leaders and workers involved in supporting victims, and the [Company 1] project assisted by providing information. It notes in her written claims she indicated she accompanied [Ms A] to the police where she made a report, and she then contacted the neighbourhood action committee leader who made a report to the community legal centre. At the hearing she claimed she accompanied [Ms A] to the House of Justice to make the report. The Tribunal is of the view this inconsistency is minor. She also claimed in her written application that the assistance provided to [Ms A] in 2007 led to her being kidnapped in 2011 from a commercial centre, threatened with a gun, put her in a car, blindfolded her and taken to a room where she was raped, beaten and insulted by a number of men, including [Mr B], who said “this is what a bitch like you deserves. Be grateful that I am not killing you. Because of you I was jailed for 6 months.” The Tribunal notes however that, despite being prompted at the hearing and given opportunities to repeat this claim, she did not repeat that [Mr B] told her she was being harmed because he was incarcerated for 6 months. The Tribunal is of the view the claim that he told her he was jailed because of her is significant and critical because it explains why she was pursued 4 years after the applicant claims to have assisted [Ms A]. Her failure to repeat this critical aspect of the claim casts significant doubt on the applicant’s evidence that she was kidnapped and raped by [Mr B] because she assisted [Ms A].

The Tribunal has considered the applicant’s claim to have been sexually assaulted. She was somewhat reticent to provide particulars but this does not raise a concern for the Tribunal because it accepts that recalling such an experience is traumatic and can be difficult to articulate. Human Rights Watch has reported that:
Gender-based violence, including by armed groups, is widespread. Lack of training and poor implementation of treatment protocols impede timely access to medical services and create obstacles for women and girls seeking post-violence care and justice. Perpetrators of violent, gender-based crimes are rarely held accountable.[1]
[1] World Report 2021: Colombia | Human Rights Watch (hrw.org) accessed 4 January 2022
The country information provided by the applicant also refers to the high rates of sexual violence in Colombia. The Tribunal accepts that it is possible the applicant was sexually assaulted while in Colombia, given the incidence of sexual violence in Colombia. However it is not satisfied any sexual assault she suffered was as a consequence of assistance provided to [Ms A] or any other woman she encountered in her role as an [Company 1] manager. It is not satisfied she was targeted and harmed in 2011 because of her work for [Company 1] in 2004 to 2008 as she has claimed. On the evidence before it, the Tribunal is not satisfied that, if the applicant suffers any assault in the future, it will be for a Convention related reason.
The Tribunal has considered the applicant’s country information which indicates community leaders, journalists, lawyers, progressive political groups, social leaders, politicians, academics, unionists and human rights workers are targeted and harmed by paramilitary groups such as the [Paramilitary group] and it accepts the evidence that those with profiles are targeted by paramilitary groups. However it is not satisfied the applicant was targeted, received threats, or was on a [Paramilitary group] blacklist because she had a profile as a community leader or a women’s rights activist. It is of the view that, if the applicant received the threats she describes, she would not have continued her work with [Company 1], particularly given she had other options, previous work experience, family support and a tertiary qualification. It is not satisfied her explanation for continuing to work for [Company 1], despite the threats, that she wanted to keep the job so she could borrow money for a property, adequately explains her decision. It accepts she may have sought a transfer in 2008 to a better area but has some concern this was for economic reasons, given the GFC, rather than because of any threats or fear. It also has concerns that her reason for not relocating domestically, that she wanted to learn English, casts doubt on her claims to fear harm from [Paramilitary group] in Soacha.
The Tribunal also finds it concerning that the applicant returned to Colombia from Australia in 2010. On her own evidence, she came to Australia to study English. The Tribunal accepts she did not want to return to Colombia and tried unsuccessfully to secure a visa for [Country 3]. It also accepts she could not fly to [Country 4] because she did not have a return ticket to Colombia. However given the applicant is educated, had some exposure to human rights issues in her employment at [Company 1] and studied in Australia, the Tribunal is not satisfied she was not aware of Australia’s protection visa program. It notes she did not attempt to return to Australia for nearly 2 years after returning to Colombia, and once she returned, to study English, it was nearly 2 years before she applied for protection. The Tribunal does not accept that a person with her level of education, awareness, resourcefulness and employment background, studying in Australia, would not have had the resources to make enquiries about suitable visa options if she genuinely feared harm in Colombia. It is of the view her voluntary return to Colombia, her remaining there for nearly 2 years and her significant delay in making a protection visa application after returning to Australia, cast concerning doubt on the reliability of her claims to fear harm by the [Paramilitary group] in Colombia for the reasons she has given.
The Tribunal notes the applicant claimed in her visa application that her father told her someone contacted him the [business] looking for her as they had seen her in Bogota and so she left [Employer 2] and went into hiding. However it notes she left [Employer 2] in May 2011 and did not seek to leave Colombia until November 2011. It also finds her claim that she was captured and kidnapped in October 2011 from a commercial centre, casts doubt on her claim to have been in hiding since May 2011. Accordingly the Tribunal does not accept her father warned her that someone was looking for her, or that she had been in hiding since May 2011.
The Tribunal is not satisfied the applicant came to the adverse attention of the [Paramilitary group] because of her involvement in supporting women facing domestic violence while working for [Company 1] such that she has a profile in Colombia. It does not accept she received threats because of her involvement in supporting women suffering domestic violence. Nor does it accept she was identified as a community leader. It does not accept any harm or sexual assault in 2011 she suffered was associated with her [Company 1] employment or engagement in any project or work supporting women to be financial independent or escaping domestic violence. It finds she came to Australia, in 2009 and 2011, to study English and not because she feared harm in Colombia for a Convention related reason.
The Tribunal has considered the applicant’s other claims regarding the reasons she cannot return to Colombia, that the social situation in Colombia has deteriorated, the [Paramilitary group] are rampant, Covid is unmanaged and there is no police protection. It has taken into account the country information she provided which confirms that the [Paramilitary group] are threatening political groups denouncing human rights violations, targeting social leaders and the profiles described above. However the Tribunal is not satisfied the applicant falls within the profiles described in the country information. It is not satisfied she is a community leader, journalist, lawyer, member of a progressive political group, social leader, politician, academic, unionist or human rights worker. The applicant provided evidence that the police have targeted and harmed several people participating in protests regarding restrictions imposed due to the Covid pandemic. The applicant did not indicate that she intends to participate in any protests if she returns to Colombia. While the applicant has provided a report from Wola claiming the police have been violent towards protesters since the start of the pandemic, the Tribunal is not satisfied this demonstrates the authorities in Colombia will not provide the applicant with any protection as she has claimed.
The applicant has also claimed that she cannot return to Colombia because she does not want to put her family at risk and she will be stuck at home. There is no evidence to suggest any member of her family has been harmed because of the applicant’s employment with [Company 1]. She confirmed nothing has happened to them since she came to Australia in 2011. The Tribunal is not satisfied there is any evidence to suggest the applicant’s family will be harmed because of the applicant. It is not satisfied she will suffer any harm by putting her family at risk, as it is not satisfied she has put her family at risk. It is not satisfied the applicant will need to remain at home, except if lockdown, curfew or social distancing regulations require her to do so.
Having considered the evidence overall the Tribunal is not satisfied the applicant has a profile, or will be identified, as a member of a particular social group, women who through their employment empowered other women to become financially independent and break down the cycle of domestic violence. It is not satisfied there is a real chance the applicant will suffer serious harm for this reason.
The Tribunal accepts social cohesion in Colombia may have been impacted by the Covid pandemic, as indicated by punishment by police in response to violations of curfew and social distancing regulations. The applicant has not indicated she holds any particular position regarding such regulations. The Tribunal is not satisfied there is a real chance the applicant will suffer serious harm as a consequence of social breakdown or Covid restrictions for a Convention related reason.
Overall the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm on the basis of any political opinion or imputed political opinion, her gender, her past employment with [Company 1], her involvement with women in Soacha, membership of a particular social group or for any other reason. It is not satisfied she faces a real chance of serious harm for any Convention related reason. The Tribunal does not accept the applicant has a well-founded fear of being persecuted. Accordingly she does not meet the requirements of s.36(2)(a) of the Act.
Does the applicant meet the complementary protection criterion?
Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether, on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Colombia. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
In considering whether there is a real risk, the Tribunal has taken into account country information referred to earlier in this decision.
The Tribunal is satisfied the applicant has family support in Colombia. She has employment experience and a tertiary qualification. While it accepts she has anxiety associated with a recent MVA and has had a back condition it notes she has been able to set up her own business and earn a reasonable income as [an Occupation 2]. On her own evidence she has professional employment experience in Colombia. While the Tribunal accepts the Covid pandemic has impacted on Colombia’s economic and social circumstances, the Tribunal is satisfied that, if the applicant returns to Colombia in the foreseeable future, she will have family support and will be able to secure some form of employment and subsist.
With respect to the claims about violence against women and social breakdown, although the country information indicates there continues to be violence and criminality, for the same reasons given with respect to a real chance, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm for these reasons. It is not satisfied she will be targeted and harmed. It is not satisfied any psychological condition she suffers will increase her risk. She did not provide persuasive evidence that there is a real risk she will suffer significant harm as a consequence of violence against women and social breakdown in Colombia.
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 she meets s.36(2)(aa).
Conclusion
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Denise Connolly
Member

[2022] AATA 516

5 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction