1712465 (Refugee)

[2023] AATA 1999

1712465 (Refugee) [2023] AATA 1999 (28 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712465

COUNTRY OF REFERENCE:                   Colombia

MEMBER:Jane Marquard

DATE:28 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 28 March 2023 at 1:34pm

CATCHWORDS

REFUGEE – protection visa – Colombia – particular social group – perception of wealthy returnees – family – child kidnapped for ransom – extortion – fear of urban extremist criminal gangs – fear of killing – forced child recruitment – disbanding of paramilitary groups – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379 at 429
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271
Ram v MIEA & Anor (1995) 57 FCR 565
SZDBG v MIAC [2006] FMCA 341

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 May 2017 (the delegate) to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO THE REVIEW

2. The first applicant is [an age]-year-old girl who was born in Australia. The second applicant is her mother, and the third applicant is her father. They are from Colombia. The second and third applicants have another child, [named], born on [date]. The second and third applicants claim they are seeking protection on behalf of their daughter, the first applicant, who has never been to Colombia.

3. The second applicant first arrived in Australia in 2014 on a [Student] visa, following which she was granted a number of other student visas. The third applicant arrived in Australia [in] January 2015 on a [Student] visa.

4. The first applicant was born in Australia on [date]. The applicants applied for the visas on 11 May 2016 on the basis that the first applicant would be kidnapped for ransom by urban armed criminal gangs operating across Colombia. In a decision dated 4 May 2017, the delegate noted that kidnapping for extortion has declined in Colombia and was not satisfied that there was a real chance of serious harm or a real risk of significant harm.

   SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

5. The applicants have applied for Permanent Protection (Class XA) (Subclass 866) visas.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

6. Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4]

   [2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (Convention).

   [3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

   [4] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in Attachment A to this decision. An applicant must establish that they:

   a.are a refugee (the refugee criterion);[5] or

   b.qualify for complementary protection (the complementary protection criterion);[6] or

   c.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[7]

   [5] Section 36(2)(a) of the Act.

   [6] Section 36(2)(aa) of the Act.

   [7] Section 36(2)(b), (c) of the Act.

   Refugee criterion

8. Section 36(2)(a) of the Act 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.

9. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.

10. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

11. A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).

12. The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Brennan CJ).

13. 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 of the Act, which are extracted in Attachment A to this decision.

    Complementary protection criterion

14. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.

15. 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) of the Act, which are extracted in Attachment A to this decision.

    The applicant must satisfy the statutory elements

16. It is the responsibility of the applicants to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.

17. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.

    Mandatory considerations

18. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    EVIDENCE

19. The second and third applicants appeared before the Tribunal, with their support person, on 9 January 2023 to give evidence and present arguments on behalf of the first applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages. The applicants were provided with an opportunity to provide submissions after the hearing.

20. The Tribunal has considered the following evidence in reaching a decision:

    a.The visa application and supporting documentation;

    b.Department movement records;

    c.The interview with the Department;

    d.The decision record of the delegate of the Department;

    e.A document title ‘legal submissions’ dated 9 June 2017;

    f.The oral evidence and arguments presented at the Tribunal hearing;

    g.The ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs;[8]

    h.Other independent country sources and media reports from a variety of sources; and

    i.Post-hearing submissions.

    [8] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

21. The most relevant of these sources and evidence are referred to and cited in the findings set out later in this decision. Not all the evidence is referred to in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[9]

    FINDINGS

    [9] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

    Nationality

22. For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.

23. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

24. The second and third applicants have provided copies of their Columbian passports.

25. The first applicant is a national of Colombia, by virtue of her parents’ nationality.[10]

    [10] Constitución Política de Colombia 1991 [Political Constitution of the Republic of Colombia 1991, as amended to 2020] arts 96, 98.

26. The Tribunal is satisfied on the basis of their passports and testimony and the law of Colombia, that the applicants are nationals of Colombia, and that Colombia is the receiving country for the purposes of the legislation.

    Findings of fact

27. The Tribunal accepts the personal particulars provided by the applicants.

28. The Tribunal accepts that the second and third applicants were born in Santiago de Cali (known as Cali), Valle Province, Colombia. By way of background, Cali is the capital city of the Valle del Cauca department (province), Colombia. It has an approximate population of 2,227,642. It is the second largest city in Colombia by area, and the third largest by population. Cali is both a popular tourist destination and an economic and transportation hub of Colombia.[11] The current governor of the Valle del Cauca department is Clara Luz Roldan, who was elected in January 2020.[12]

    [11] The Editors of Encyclopaedia Britannica (7 September 2022), Cali, Encyclopedia Britannica, < R Gilmore, Louis, Parsons, J James, McGreevey, William Paul, Kline, F Harvey F and Garavito, Clemente (8 November 2022), Colombia, Encyclopedia Britannica,

29. The second applicant’s parents and one [sibling] live in Cali. She has no family in Australia. She said that her mother used to work for [a named business], but is now a pensioner, and her father worked at times as an [occupation 1] for a Colombian company, but at the time of interview was a pensioner. They are still living in a middle-class area in the house she grew up in. Her [sibling] is unmarried and has a child aged [age]. [They work] in a [workplace]. Her grandparents have passed away but she has other extended family and a few friends in Cali. She speaks to her parents three times a week.

30. The third applicant’s father lives in Cali and his mother lives in [Country 1]. When he was growing up, his father was [an occupation 2], and his mother a housewife. He has one [sibling] living in Peru working as [an occupation]. [Another] lives in [Country 1] with his mother, working as [an occupation 3] for a multinational. He has very few relatives living in Cali and his grandparents have passed away.

31. The second applicant attended primary and high school in Cali. When she finished school, she studied [subject 1] at university. When she completed her course, she worked [for] two to three years. After that she travelled to Australia to study English. The second applicant first arrived in Australia on a [Student] visa, following which she was granted a number of other student visas. She studied English but did not complete any other courses.

32. The third applicant also attended school in Cali. When he finished school, he worked in various jobs including in [specified roles]. He decided to travel to Australia to support his wife in her further studies and then to study himself. The third applicant arrived in Australia [in] January 2015 on a [Student] visa. He studied at TAFE for one year.

33. The second and third applicants were married through a power of attorney/proxy while she was in Australia and he was in Colombia in 2014.

34. In Australia they have both worked as [occupation 4s] and the second applicant has looked after the children. They do not have other family members in Australia. They are Christians.

35. They did not suffer any harm in Colombia.

36. There is no reason to doubt the personal particulars set out above, which have been provided coherently and consistently.

    The refugee criterion - does the first applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

37. The applicants have claimed that the first applicant has a well-founded fear of persecution and they are members of her family unit.

38. 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[13].

    [13] Section 5H(1) of the Act.

39. The next issue for consideration by the Tribunal is whether the first applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

40. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:

    ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·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 above; and

    ·the real chance of persecution relates to all areas of a receiving country.

    Does the first applicant fear being persecuted for one of the reasons set out in the legislation?

41. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons.  This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.

42. The Tribunal is satisfied that the harm feared for the first applicant, who is a child, is derived from the fear held by her parents.[14]

    [14] SZDBG v MIAC [2006] FMCA 341.

43. The Tribunal is satisfied on the basis of their testimony that the second and third applicants fear that their child will be a victim of crime.

    Is there a real chance of serious harm if the first applicant were to return to Colombia in the reasonably foreseeable future?

44. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Refugees Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept[15]; not only must a person fear persecution, there must also be a prospect of that fear being realised.

    [15] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>

    The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[16]

    [16] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.

45. In evidence to the Department, the applicants claimed that if they returned to Colombia, their family would be labelled as wealthy, and they would be located by ‘infiltrated informant agents amongst civilian people who are working as part of the network of those extremist criminal gangs operating within the urban areas of the main cities of Colombia’. The applicants claim that there is a real chance that their daughter, the first applicant, will be kidnapped and if she were to be kidnapped, they would be unable to pay a ransom due to unavailability of funds.

46. These claims were confirmed at the Tribunal hearing, where the second applicant claimed that her daughter would be kidnapped due to ‘lack of security’. The second applicant said that there are unemployed people and criminals who ‘may do the wrong thing’. She said that they fear the criminals and also armed paramilitaries who are also criminals. At the Department interview the second applicant mentioned that there were several criminal groups she feared including FARC (Fuerzas Armadas Revolucionarias de Colombia), the military wing of the Colombian Communist Party (Partido Comunista de Colombia or PCC), the National Liberation Army (Ejército de Liberación Nacional or ELN) and paramilitary groups. Asked at the Tribunal hearing if there were specific paramilitaries she feared, she said ‘in general’. In the Department interview, the second applicant said that she did not fear that she and the third applicant would be harmed. At the Tribunal hearing she said that she feared the first applicant being sexually exploited and being killed.

47. The Tribunal is not satisfied that there is a real chance of serious harm for the first applicant for the following reasons.

48. Firstly, the second and third applicants did not suffer any harm in Colombia in the past, as confirmed by them at the Tribunal hearing. They also confirmed that they travelled to Australia to study, rather than to seek protection, which suggests that they did not fear persecution at the time. They have claimed that they will be targeted as returnees, who are perceived as being wealthy; however, the fact that they were not harmed through crime when living there adds some weight to the conclusion that there is not a real chance of serious harm on return.

1. Secondly, there is no evidence of other family members being kidnapped or otherwise harmed. The second applicant told the Tribunal that her family live in the same house that they have always lived in. When asked about why they fear harm if her family members live there safely, the second applicant said that it is ‘when someone returns from a foreign country’ that they are at risk, as criminals perceive them as being wealthy. Even if this were true, the fact that family members, including children, have not been harmed does in some measure indicate that the rate of kidnappings and crime is not significant.

2. Thirdly, country sources indicate that there is significant travel in and out of the country[17] and it is unlikely therefore that all returnees are considered wealthy given the continual entry and exit of people. Further, it is not clear how the relevant criminals would know that this family had returned. The second applicant was asked about this and said that when she was growing up there was always a fear of criminals and she feared that she would be kidnapped when she grew up. She said that she does not want her daughter to have this fear and there are always informants in the cities. The third applicant said that there is ‘always a friend of a friend’ who talks, and social media may also expose them. The Tribunal accepts that there may be informants or people who talk about their return but does not accept that there is a real chance of criminals finding out about their return who will also suspect them of being wealthy and want to kidnap the first applicant, given that many people travel in and out of the country and they have family members there with whom they can reside.

   [17] International Organisation for Migration, <Colombia Crisis Response Plan 2022 | Global Crisis Response Platform (iom.int)>.

3. Fourthly, the evidence establishes that kidnappings in the country have been largely opportunistic in their areas of operation rather than being based on specific targeting of the wealthy. An article in 2021 claimed that most kidnappings were not premeditated:

   Both FARC and ELN militants have historically carried out kidnappings for ideological and financial reasons in their area of operations, including the departments of Cauca, Antioquia, Arauca, Nariño, Norte de Santander and Putumayo. Their motivations have included kidnappings for political leverage or the release of detained group members, as well as to finance their ongoing insurgency through ransom demands. Although some kidnappings – such as those targeting senior government officials – have been premeditated, most reported kidnappings by militant groups are opportunistic, particularly those involving foreign nationals transiting through militant operational areas.[18]

   [18] SRM E Drake, 23 April 2021, <Kidnapped in Colombia: Isolated Occurrences or Resurgent Threat? (s-rminform.com)>.

4. The article also suggests that there is some targeting for financial reasons in remote border areas with a limited security presence:

   Criminal groups spanning the Colombia-Venezuela border have also occasionally staged financially-motivated kidnappings of local nationals and travellers. Such groups often pretend to be militants to increase the legitimacy of their threat. In 2013, for example, a criminal group identifying themselves as FARC members kidnapped two Spanish tourists near the popular Cabo de la Vela tourist spot, and were paid a USD 667,000 ransom for the victims’ release. FARC denied any involvement, and authorities later arrested the two individuals who collected the ransom – a Syrian and Spanish national – in Spain. Such groups will continue to stage kidnappings for ransom, particularly in remote border areas with a limited security presence.[19]

   [19] SRM, E Drake, 23 April 2021, <Kidnapped in Colombia: Isolated Occurrences or Resurgent Threat? (s-rminform.com)>.

5. However, this is not the area in which the applicants will live as they are likely to return to their hometown Cali where they lived and where their family resides. The Tribunal put to the applicants that there must be a real chance of serious harm, and the applicants must be targeted for persecution, rather than being victims of random or opportunistic crime. The applicants said that some of the kidnappings were related to political issues and in the cities there are criminal gangs involved in drug trafficking who do kidnap for ransom, looking for people they think are wealthy so they can finance gangs.

6. The Tribunal acknowledges that there may be some kidnappings in the cities for financial gain, but the country sources referred to below suggest that there are only small numbers of kidnappings, and that they are primarily opportunistic.

7. Fifthly and importantly, the rate of kidnappings has declined to such an extent that it cannot be said that there is a real chance of its occurrence in the reasonably foreseeable future. Kidnappings were ‘intensely problematic during the height of the Colombian conflict’ in the late 1990s and especially 2003 to 2013, however since then they have declined, particularly after the 2016 demobilisation.[20]

   [20] Colombia Reports, ‘Kidnapping and extortion’, 8 June 2022; See also: Colombia, ‘Ministerio de Defensa Nacional, Logros de la política de defensa y seguridad’, p13, quoted in European Union Agency for Asylum, ‘Colombia Country Focus’, December 2022, <>

   Although there are significant criminal networks operating in Colombia, this does not equate with a real chance of kidnapping for the first applicant, when considering the types and locality of harm and the statistics on kidnapping in recent years. The Global Organised Crime Index states that Colombia is a major centre of human trafficking,[21] and cocaine production and trafficking are the main criminal markets in Colombia, with the country producing 75% of the world’s cocaine. Sophisticated local criminal networks are linked to international organised crime groups that traffic the drug across porous borders. Colombia is also a source and destination market for cannabis, likely the second-largest drug-trafficking market after cocaine and the most consumed drug domestically. The heroin trade is also a significant source of income for domestic trafficking organisations. The trade is run by groups, often operating out of Cali, that supply the high-end market in the US.[22] Cali was reportedly the city in Colombia with the most reported homicides in 2022.[23]

   [21] Global Organised Crime Index, <Criminality in Colombia - The Organized Crime Index (ocindex.net)>.

   [22] Global Organised Crime Index, <Criminality in Colombia - The Organized Crime Index (ocindex.net)>.

   [23] Newsroom Infobea, ‘Cali is the city in Colombia with the most reported homicides during 2022’, 2 April 2022, <>

   However, notwithstanding there is significant crime in Colombia and in Cali specifically, crime statistics reveal a significant drop in crime since 1990,[24] including rates of kidnapping. Statistics suggest 174 people were kidnapped in 2018, as opposed to 3,600 victims of kidnapping in the year 2000, when Colombia’s armed conflict was at its most violent point.[25] Statistics from the United Nations Office on Drugs and Crime 2018 suggest countries such as the UK and New Zealand have higher rates of kidnapping than Colombia.[26] A Canadian Immigration and Research Report referred to a January 2021 press release from the Office of the Ombudsman (Defensoría del Pueblo) indicates that in 2020 kidnappings increased by [translation] "at least" 252 percent compared to 2019; these occurred "particularly" in Catatumbo due to conflict between the ELN and the Popular Liberation Army (Ejército Popular de Liberación, EPL) as well as in the Baudó y Pacífico Chocoano subregion due to "clashes" between the ELN, FARC dissidents and the Gulf Clan (Colombia, 7 January 2021).[27] US Country Reports 2020, citing the [Colombian] Ministry of Defence, reports 13 kidnappings from 1 January to 30 June 2020, five of which were "attributed to the ELN" (US, 30 March 2021, 14).[28] Other sources suggest there were 192 kidnappings in 2020, 160 in 2021 and 154 in 2022 as at October 2022.[29]

   [24]MacroTrends website, <Colombia Crime Rate & Statistics 1990-2023 | MacroTrends>.

   [25] Colombia Reports, < 8 June 2022.

   [26] World Population Review website, <Kidnappings per Country 2023 (worldpopulationreview.com)>.

   [27] Canadian Immigration and Research Board, ‘Colombia: Targets of criminal groups, particularly the Gulf Clan (Clan del Golfo) [also known as the Gaitanista Self-Defence Forces of Colombia (Autodefensas Gaitanistas de Colombia, AGC), Los Urabeños, Clan Úsuga], the National Liberation Army (Ejército de Liberación Nacional, ELN), Los Pachenca, and Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC) [or Revolutionary Armed Forces of Colombia—People's Army (Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo, FARC-EP)] dissidents; methods and ability of these groups to track their targets across the country; state protection (2019–June 2021)’, 13 August 2021 (the Canadian Immigration and Research Board Report 2021).

   [28] Canadian Immigration and Research Board Report 2021.weadsxxz4rewfsdtgcxfacdqsS

   [29] Colombia, Ministerio de Defensa Nacional, Logros de la política de defensa y seguridad, [Last updated October 2022], url, p. 13 quoted in European Union Agency for Asylum, ‘Colombia Country Focus’, December 2022, <>

   The Ombudsman’s Office suggested in 2021 that kidnapping is no longer widespread, being practised only occasionally:

   The Office of the Ombudsman assured that, during 2021, the humanitarian efforts carried out by that body allowed the return to freedom of several people who were in the possession of illegal armed groups. Among them, the release of Colonel Pedro Enrique Pérez, on December 19 of last year, and of engineer Luis Andrés Armando Araque, on the 26th of the same month, was highlighted.

   In dialogue with El Colombiano, Major Camilo Bello, commander of the Military Gaula of the Fourth Brigade, says: “It is not as easy today to commit a kidnapping as it was a few years ago. The capacity that we have Army, Prosecutor's Office and Police is no longer the same for bandits as was the case 15 or 20 years ago, when the famous miraculous fishing was done, the mass kidnappings. It is no longer possible today.” He adds that these “forms of abduction” are of short duration and not for months or years.

   The authorities say that express kidnapping is not a widespread or widespread crime, but practised occasionally by some gangs and as a factor of opportunity. There are several mechanisms that criminals use to carry out this crime.[30]

   [30] Infobae, 29 March 2022, ‘“Express kidnapping” is on the rise in Colombia, according to the Ombudsman's Office’, <>

   The diminution in kidnappings reflects the lessening of power of paramilitary groups. For more than 50 years, Revolutionary Armed Forces of Colombia (FARC-EP), the oldest and largest guerrilla group in the western hemisphere, was in conflict with the government, until 2016 when a peace agreement was reached.[31] On 27 June 2017, FARC disarmed and surrendered its weapons to the United Nations pursuant to the 12 November 2016 peace deal with the Colombian government. FARC then reformulated as a legal political party, known as the Common Alternative Revolutionary Force, in accordance with the peace agreement. A small group of about 2,000 FARC dissidents continued to engage in fundraising through drug trafficking and announced a return to armed activity on 29 August 2019. The Colombian government responded with offensive strikes, killing many of these splinter-group FARC members and would-be leaders to prevent expansion and rearmament.[32] FARC-EP was involved in a significant volume of kidnappings and the peace agreement brought a noticeable decline in violence.

   [31] European Union Agency for Asylum, ‘Colombia Country Focus’, December 2022, < Reuters, ‘Colombia signs new peace deal with FARC’, 24 November 2016; BBC News, ‘After decades of war, Colombia's FARC rebels debut political party’, 27 June 2017; Reuters, ‘Peru arrests more than 50 in anti-drug bust at Colombian border’,16 July 2018; Al Jazeera, ‘9 Colombian FARC dissidents killed in bombing raid’, 31 August 2019.

8. In 2020, former FARC combatants "publicly acknowledged" that "guerrillas" had engaged in kidnapping.[33] Former FARC members responsible for kidnapping have received harsh sentences.[34] FARC has evidently been greatly diminished in Colombia over the last decade, to the point of having been virtually wiped out, reportedly through actions ‘fair and otherwise’[35]. Former FARC leaders gave a formal and public apology in 2020 for past exercises in kidnapping and extortion:

   Former commanders of the now disbanded Farc rebel group in Colombia have for the first time issued an apology for the kidnappings they carried out during the armed conflict.

   A commission investigating crimes committed during 52 years of violence has promised more lenient sentences to those who admit wrongdoing.

   Eight commanders called the kidnappings an "extremely grave mistake" and acknowledged the pain they had caused…

   Thousands of people were kidnapped by the Revolutionary Armed Forces of Colombia (Farc) rebel group over the decades. Some were freed after ransom was paid, others were held for years, sometimes chained to trees, and some were killed or died in captivity …[36]

   [33] Freedom House, ‘Freedom in the World- Colombia’, 3 March 2021.

   [34] Reuters, 25 November 2022, <Colombia's ex-FARC leaders face up to eight year sentences for kidnappings | Reuters>.

   [35] Reuters, 25 November 2022,<Colombia's ex-FARC leaders face up to eight year sentences for kidnappings | Reuters>.

   [36] BBC News, ‘Colombian ex-Farc rebels 'ashamed' of kidnappings’, 16 September 2020, <>

   Other paramilitaries have also diminished in power over the last decade. A 2017 report[37] about Los Rastrojos states:

   The Rastrojos first emerged in 2002 as the armed wing for Wilber Varela, alias “Jabon.” At the time, Varela was fighting a rival in the Norte del Valle Cartel, Diego Montoya, alias “Don Diego,” and Montoya’s private army, the “Machos.” …

   However, the group imploded in 2012 with the fall of three of its main leaders … leaving the group with no clear leader. In further blows to the group, the US Treasury Department placed sanctions on the Rastrojos under the Kingpin Act in early 2013, while one of the group’s key hitmen operating in Cali was captured in Ecuador in August 2013.

   Nonetheless, the group has continued to operate in smaller, localized cells throughout the country, but particularly in their strongholds of Valle del Cauca, Nariño and Norte de Santander, as well as in Ecuador.

   In February 2017, Luis Enrique Calle Serna was sentenced to nine years in prison by a US court just a few days after the release of another of Comba’s brothers, Juan Carlos Calle Serna, by Colombian authorities…

   The Rastrojos were internally divided even before the loss of [several leaders]. The loss of these bosses has left the group without a clear leader, which has in turn caused it to lose membership.

   [37] Insight Crime, ‘Rastrojos’,16 February 2017, <>

   This information is confirmed by other sources.[38] A 2018 Refworld report states that by 2017, the Rastrojos drug cartel was reduced to only 310 members and dependent on alliances with paramilitary groups in order to continue its drug trafficking.[39]

   [38] Colombia Reports, ‘Rastrojos’, 16 September 2019, < Canada: Immigration and Refugee Board of Canada, ‘Colombia: The presence and activities of Los Rastrojos, including in Buenaventura; information on their relationship with the Gaitanist Self-Defense Forces of Colombia (Autodefensas Gaitanistas de Colombia, AGC) [also known as Gulf Clan (Clan del Golfo) or Úsuga Clan (Clan Úsuga), and formerly known as Los Urabeños]; state response (2017-April 2018)’, 17 April 2018, COL106086.E, <>

   The Norte del Valle cartel was taken down in 2012, with only a few infighting splinter groups remaining after that, all primarily involved in drug trafficking:

   Although the NDVC’s leadership structure has effectively been dismantled, the cartel’s legacy lives on. Aside from the still feuding Rastrojos and Machos, former NDVC operators, including the now returned El Quimico, continue to be influential figures in the Valle del Cauca underworld while others reportedly operate from other countries such as Bolivia and Argentina.

   The cartel’s operations have also helped establish a number of trafficking routes that are still in use today, especially the use of high-speed and fishing boats to take cocaine shipments from Colombia’s Pacific coast to Mexico, where they would be collected by Mexican allies, principally the Beltran Leyva Organization — the former armed wing of the Sinaloa Cartel — who moved it on to the United States.[40]

   [40] Insight Crime, ‘Norte del Valle Cartel’,17 November 2015, <>

   The applicants provided an article from Al Jazeera dated 30 April 2021 which referred to eight ex-commanders of FARC formally admitting that kidnapping was official FARC policy. It referred to about 21,396 people being kidnapped or taken hostage by FARC between 1990 and 2015. However, the article states FARC was ‘now defunct’ and referred to kidnappings which happened until 2015 only.[41]

   [41] Al Jazeera, ‘Colombia’s ex-FARC leaders admit kidnapping and other crimes’, 30 April 2021.

9. The applicants also provided a number of translated articles as follows:

   ·An article from ‘the ‘diariojuridico’ website dated 7 October 2022. The article stated that the Human Rights Legal Commission of the House of Representative had made a statement about the kidnapping of a minor in Aguachica. They also referred to a case in Putamayo and one in the locality of Bosa, where the authorities prevented the kidnapping. The state promised a strong response to what was referred to an increase in kidnapping in conflict-ridden areas.

   ·An article referring to a kidnapping of a two-year-old boy and two women in Antioquia, Colprensa. The article also referred to a number of other kidnappings, stating that ‘although this crime has not shown to be at the levels of the previous three decades, it continues to be a scourge that has not been eradicated from the country’.

   ·An article referring to the presence of the armed groups in rural areas of Antioqiua north and north-eastern of the region, also warning of some cases of indoctrination by subversives in some educational institutions.

   ·An article referring to the kidnap and release of a 14 year old child in Valle del Cauca in 2021. The National Police had managed his release.

   ·An article referring to a large reward offered for a child who had been kidnapped in a rural area of La Gloria.

   ·An article about a breakaway group from FARC called First Front, which has control over a large part of Guaviare.

   ·An article in 2022 suggesting that one of the biggest challenges for the new government of Gustavo Petro is security. The article suggested that there had been 14 000 homicides in 2021 and 33 massacres. The article suggested that the security infrastructure was underfunded.

1. The Tribunal acknowledges, as demonstrated by these articles, that there are incidents of kidnapping in Colombia, that there is a problem with crime generally and there are breakaway paramilitary groups active in the country. However, as discussed earlier, the statistics indicate that there are not high levels of kidnapping in the country since the peace agreement. There is independent evidence that during COVID-19, criminal groups expanded their areas of operation but there have only been isolated incidents of kidnappings:

   During the Covid-19 lockdown, FARC, ELN and organised criminal groups have expanded their areas of influence significantly, as security forces’ efforts focused increasingly on relief efforts and ensuring the delivery of basic goods and services.  The government’s inability to adequately provide such basic goods and services to remote, rural areas of the country further enabled FARC and ELN to consolidate control over their areas of operation, through enforcing their own arbitrary curfews and other measures, and acting as a de facto local government. This has mostly been achieved through violence, as evidenced by the highest number of militant-related killings since the 2016 peace agreement.

   A more lax security environment has further enabled these groups to intensify their usual range of activities, including drug production, and drug and weapons trafficking. This has driven increased competition for territory among rival groups, which has contributed to an uptick in violent clashes, and has prompted significant internal displacement. 

   The UN Peace Commission in Colombia defines ‘massacres’ as three or more fatalities in a single incident. However, while other militant activities have continued, militant-related kidnappings have, so far, remained isolated. According to government figures, overall kidnappings in the country even decreased by four percent in 2020, suggesting that the lockdown further limited the opportunity for such attacks to take place due to restrictions on travel. Nevertheless, the recent kidnapping of two tourists highlights that groups retain an intent to stage such incidents. In a similar recent incident in March 2020, a Brazilian and a Swiss national who were waylaid by their GPS were kidnapped by two armed FARC members on motorcycles, while they travelled through the Cauca Department. They were rescued a month later, unharmed.[42]

   [42] SRM E Drake, 23 April 2021, <Kidnapped in Colombia: Isolated Occurrences or Resurgent Threat? (s-rminform.com)>.

2. The same article suggests that there is no resurgence in kidnapping activity in Colombia with FARC, ELN and organised criminal groups remaining largely focused on establishing their territorial control over illegal mining operations, illicit crop plantations and lucrative smuggling networks.[43] The author’s view is that ‘kidnappings will therefore remain a supplementary and mostly opportunistic means of financial gain. As such, there is unlikely to be a significant increase in kidnappings in the coming months, including incidents targeting travellers.’[44] He argues this is because, ultimately, kidnappings (particularly of foreign nationals) remain comparatively high-risk endeavours for militant groups and the overhead costs of keeping a hostage, such as providing food and medical supplies, further limit their intent to carry out a longer-term kidnapping for ransom. He argues that ‘victims also require frequent relocation, which risks exposure or attracting the attention of local security forces or potential witnesses. However, when the opportunity arises, some groups will likely continue to leverage this, particularly if the victim lacks a security escort or is in a remote location. Nevertheless, there is little evidence to suggest a renewed intent to launch a kidnap campaign. As such, foreign nationals remain high-value – but ultimately opportunistic – targets.’[45]

   [43] SRM E Drake, 23 April 2021, <Kidnapped in Colombia: Isolated Occurrences or Resurgent Threat? (s-rminform.com)>.

   [44] SRM E Drake, 23 April 2021, <Kidnapped in Colombia: Isolated Occurrences or Resurgent Threat? (s-rminform.com)>.

   [45] SRM E Drake, 23 April 2021, <Kidnapped in Colombia: Isolated Occurrences or Resurgent Threat? (s-rminform.com)>.

3. These sources do suggest that kidnappings are isolated and opportunistic, and more likely in remote areas. A Canadian Immigration and Research Board Report, which summarises a number of sources, has also suggested that violence from paramilitary groups is most likely to impact human rights defenders, journalists, indigenous and Afro-Colombian leaders, or people in resource-rich areas or who ‘get in the way of drug trafficking’[46]:

   Human Rights Watch (HRW) reports that in 2020, "civilians in various parts of the country suffered serious abuses at the hands of" the ELN, FARC dissidents, and "paramilitary successor groups," and that "[h]uman rights defenders, journalists, indigenous and Afro-Colombian leaders, and other community activists face pervasive death threats and violence" (HRW 13 Jan. 2021, 175).

   According to sources, resource-rich areas [and drug-trafficking routes (Freedom House 3 Mar. 2021)] are "particularly" unsafe (Amnesty International 8 Oct. 2020; Freedom House 3 Mar. 2021), especially for those "defending human rights, territory and natural resources" (Amnesty International 8 Oct. 2020). A report by the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP) states that 2021 had the "most violent start" of any year since the peace accord was signed [in 2016] (Colombia 26 Jan. 2021). The same source adds that between 1 and 24 January 2021, one social leader was killed every 41 hours and there were 14 [translation] "armed confrontations" between criminal groups and security forces 13 cases of death threats against community leaders 6 "massacres 5 former FARC combatants murdered14 community leaders killed 3 instances of harassment7 "armed confrontations" between "illegal groups" (Colombia 26 Jan. 2021).

   In a telephone interview with the Research Directorate, a senior analyst for Colombia at International Crisis Group stated that "[i]n general," criminal groups target those they see as an "annoyance" or "obstacle" to their economic goals in an area (Senior Analyst 8 July 2021). The same source provided an example, stating that the Gulf Clan "may target an entire village" if the community is on a "strategic" drug route (Senior Analyst 8 July 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

   The Senior Analyst indicated that if the "annoyance or obstacle is removed," the group may or may not track the individual (Senior Analyst 8 July 2021). According to sources, criminal groups are more likely to track individuals who have a "high profile" or "continue to advocate for their communities" after being "displaced" (Senior Analyst 8 July 2021) or leaders, people who are "more likely to express their opinions," or those who are "more capable" of "infring[ing]" on the group's interests, for example by "encroach[ing] on their territories" or "limiting their operations" (Professor 12 July 2021). The Senior Analyst gave the example of a female human rights defender from Tolima who had experienced sexual violence, resettled in Bogotá, and was tracked because she "maintain[ed] her public profile" and was talking to the media about events in her community (Senior Analyst 8 July 2021).[47]

   [46] The Canadian Immigration and Research Board Report 2021.

   [47] The Canadian Immigration and Research Board Report 2021.

4. When the information about the reduction in numbers of kidnapping and the disbanding of paramilitaries was put to the applicants, they said that there are always new branches of the paramilitaries being created. This is accurate – a range of other paramilitary and criminal groups have become active since the peace agreement, and although the FARC-EP peace agreement has been significant, other armed and criminal groups now perpetuate insecurity in the country where FARC-EP used to be present.[48] FARC dissidents are also active throughout Colombia.[49] The US Embassy in Colombia has said that organised criminal groups have stepped into the void left by paramilitary organisations and are behind much of the violence in the country.[50] Sources indicate that violence has taken new forms, and abuses by armed groups, including killings, massacres and massive forced displacement increased in many remote areas of Colombia in 2021.[51] Civilians in various parts of the country suffered serious abuses at the hands of National Liberation Army (ELN) guerrillas, FARC dissidents and paramilitary successor groups.[52] The applicants provided an article dated 11 May 2017 from NPR stating that some groups of FARC rebels were operating from the jungle. The article noted that the territory they previously controlled had been taken over by other armed groups, particularly in the northern state of Choco.

   [48] European Union Agency for Asylum, ‘Colombia Country Focus’, December 2022, < European Union Agency for Asylum, ‘Colombia Country Focus’, December 2022, < The Canadian Immigration and Research Board Report 2021.

   [51] Human Rights Watch, 2022, <World Report 2022: Colombia | Human Rights Watch (hrw.org)>.

   [52] Human Rights Watch, 2022, <World Report 2022: Colombia | Human Rights Watch (hrw.org)>.

5. However, although new groups have been created, violence is often concentrated in areas where there is a limited state presence or in some parts of Bogota and Medellin where they are exercising territorial control.[53] The United Nations Secretary-General has also stressed in its reports that the areas most affected by violence are rural departments with limited state presence that are characterised by the presence of illicit economies and illegal armed groups.[54] Violence also takes place where there is rivalry between groups and where there are drug feuds, or in areas where there is illegal mining, or the need for access to ports and borders.[55] One article in 2020 said that what is seen now is attacks against civilians perceived to be part of the support structure of a rival groups, conducted by smaller groups going after drug routes, gold mines, timber smuggling and forming alliances with money launders.[56] Criminal groups are ‘interested in exerting control over communities, land, commerce and securing territorial control via coercion and control of populations. Violence by armed groups is very much over economic and military strategic interests and clashes are used to maintain or dispute power and control’.[57] These forms of violence and conflict are unlikely to impact on the applicants in Cali if they are not involved in any criminal activity. As discussed earlier, it is human rights defenders, journalists, Indigenous and Afro-Colombian leaders, and other community activists who face pervasive death threats and violence.[58] Further, many of the conflicts are regional and not in the Cali area, as referred to above. In Valle del Cauco, killings in 2020 impacted primarily social leaders and members of vulnerable communities such as farmers and indigenous groups.[59] Country sources do refer to the presence of former members of FARC, the Gulf Clan and other rebel groups running drug trafficking in the Cali area[60], however a report by the Canadian Immigration and Research Board on all the significant paramilitary groups, did not refer to Cali as an area of significant concern for operation of these groups.[61] Further, the ELN’s control in the area has reduced.[62] The killings that have taken place are often rural and based on feuds between criminal groups:

   Alarms are sounding in Colombia over a rising tide of violence. More than 230 people have been slain in massacres this year.

   The deaths signal a new chapter in the country’s long history of bloodshed. Rather than the previous national dispute between guerrillas and the state, violence in rural Colombia is now marked by a patchwork of local feuds between criminal groups that fight over drug routes, illegal mines and even gasoline smuggling routes.

   … “There is less direct confrontation now between armed groups and the government,” said Juan Carlos Garzon, an expert on Colombia’s conflict at the Ideas for Peace Foundation. “But what you see are many attacks against civilians who are perceived to be part of the support structure of a rival group.”

   Drug trafficking groups like the Gulf Clan and rebel groups led by former FARC members who did not sign the peace deal operate around the village of Munchique and elsewhere in Cauca state.

   “There are so many groups with interests here that we don’t really know who to blame,” said Clemencia Carabalí, a spokeswoman for the Association of Afro Colombian Women of Northern Cauca, a human rights group.

   Colombia’s government pointed to a group of former FARC members for the attack, and offered a reward of $300,000 for two of its leaders. On Monday, military commanders and officials from the defense ministry visited the area and said the army would step up operations against the FARC dissidents.

   … Camilo Gonzalez, president of the Colombian think tank Indepaz, said that so far this year, there have been 61 incidents in which three or more civilians were killed by armed groups, compared to 35 for all of last year.

   … Gonzalez said the spike in massacres is happening as armed groups reposition themselves around the country and fight for illegal resources abandoned by the FARC rebels. These are smaller groups who have little political purpose,” Gonzalez said. “They are going after drug routes, gold mines, timber smuggling, and forming alliances with money launderers.”[63]

   [53] European Union Agency for Asylum, ‘Colombia Country Focus’, December 2022, < United States Security Council, ‘Monthly forecast October 2020, ‘Security Council Report, 30 September 2020

   [55] European Union Agency for Asylum, ‘Colombia Country Focus’, December 2022, < M Rueda, ‘Wave of massacres signals new chapter in Colombia’s conflict’, Associated Press, 23 September 2020.

   [57] European Union Agency for Asylum, ‘Colombia Country Focus’, December 2022, < Human Rights Watch, 2022, <World Report 2022: Colombia | Human Rights Watch (hrw.org)>.

   [59] Armed Conflict Location and Event Data Project, ‘Regional Overview Colombia 2 August to 5 September 2020’; United States Security Council, ‘Monthly forecast October 2020, ‘Security Council Report, 30 September 2020.

   [60] Department of Home Affairs, Country of Origin Information Services Section (COISS),'Colombia - 20200922091942 - Valle del Cauca security situation - Campesino', 07 October 2020.

   [61] Immigration and Research Board, Canada, ‘Colombia: Targets of criminal groups, particularly the Gulf Clan (Clan del Golfo) [also known as the Gaitanista Self-Defence Forces of Colombia (Autodefensas Gaitanistas de Colombia, AGC), Los Urabeños, Clan Úsuga], the National Liberation Army (Ejército de Liberación Nacional, ELN), Los Pachenca, and Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC) [or Revolutionary Armed Forces of Colombia—People's Army (Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo, FARC-EP)] dissidents; methods and ability of these groups to track their targets across the country; state protection (2019–June 2021), COL200703.E, 13 August 2021.

   [62] Department of Home Affairs, Country of Origin Information Services Section (COISS),'Colombia - 20200922091942 - Valle del Cauca security situation - Campesino', 07 October 2020.

   [63] Rueda M, Associated Press (AP), 23 September 2020, ‘Wave of massacres signals new chapter in Colombia’s conflict’, <>

   The applicants claimed that if they returned to Colombia, their family would be labelled as wealthy, and they would be located by ‘infiltrated informant agents amongst civilian people who are working as part of the network of those extremist criminal gangs operating within the urban areas of the main cities of Colombia’. They also feared she could be killed or sexually exploited. The Tribunal does not accept that the evidence establishes that there is a real chance of informant agents in the cities locating and kidnapping the first applicant, killing her or sexually exploiting her, given the sources set out above relating to the type, volume and locality of crimes. These sources suggest that some diminished paramilitary groups do have drug trafficking operations which impact on civilians, mostly in the countryside and the mountainous region bordering with Venezuela, but there is not the level of kidnapping that there once was and the rates of kidnapping are minimal compared to the population. The applicants argued that the independent country information is suggestive, and ‘glosses over’ the situation. The third applicant said that he hears different things from the country. He submitted that criminality is increasing not decreasing, and this can be seen in social media, which is more accurate and provides more up-to-date information than statistics. It was argued that many young people are acting as journalists on social media to spread these stories. They submitted that media is a quicker and more accurate source. The third applicant also argued that crime is targeted, not random, and crime groups are well-organised. It was submitted that they fear for their daughter, who could be attacked and taken to a rural area.

6. The Tribunal acknowledges that there may be instances where social media provides more up-to-date information than human rights and media sources. However, there are many reputable organisations reporting on Colombia. The bulk of the independent information suggests that paramilitaries and criminal groups do not have the power they once had, and operate in remote areas, where crime is often a response to drug feuds, or other unlawful conflicts and there is little evidence of kidnappings other than those that are opportunistic and isolated. Furthermore, the state appears to be committed to finding solutions to the conflicts with the paramilitary groups. In early August 2022, Gustavo Petro (of the Pacto Histórico party) was inaugurated as President of Colombia; the first leftist president elected in the country’s history. Petro is himself a former member of a demobilised leftist guerrilla group. He has called for the maximal implementation of the 2016 peace accord, announced peace talks with the ELN and other armed groups, and is re-establishing diplomatic relations with Venezuela, while establishing policy priorities around support for Colombia’s peace and reconciliation processes, addressing land inequality/reform and rural inclusion and poverty.[64] The Petro Government’s ‘Total Peace’ concept is one of its key priorities and involves the implementation of the FARC-EP peace agreement in addition to resuming peace talks with the ELN, and exploring ‘submission to justice agreements, through which other illegal actors cease violence in exchange for legal benefits’[65]. Within the plan, there are ‘promises that the government will suspend the capture of members of armed groups and offer benefits, such as reduced sentences and a guarantee of no extradition, to members who reveal information on narcotrafficking routes and hand over earnings from illegal sources, such as cocaine trafficking.’ Shortly after taking office in August 2022, Petro’s government proposed a multilateral ceasefire with all illegal armed groups that agree to negotiate their disarmament/demobilisation. He also suspended arrest warrants and extradition requests against ELN peace negotiators.[66] This was discussed with the applicants, who did not feel that this new conciliatory environment would alleviate the risk to their daughter. However, the approach of the government to combat conflict, when also seen alongside reduced rates of kidnapping and extortion from groups such as FARC and ELN, does suggest that the first applicant does not face a real chance of serious harm in the reasonably foreseeable future.

   [64] European Union Agency for Asylum, ‘Colombia Country Focus’, December 2022, < European Union Agency for Asylum, ‘Colombia Country Focus’, December 2022, < European Union Agency for Asylum, ‘Colombia Country Focus’, December 2022, < type="1">

7. The second applicant submitted that in Colombia people in government and business can pay for security for their families but other people, such as the applicants, cannot afford it. She said that upper class people can send their children to safe schools, and they can have bodyguards and drivers. She said that normal schools do not have these security features. She said that kidnapping could happen at school, or in the shopping centre or in the car. The third applicant said that they have a fear for their daughter, and they can see what really happens in Colombia. The Tribunal acknowledges that it is possible that families without bodyguards and other security may face a higher risk than wealthier families, however, the Tribunal must determine whether there is a real chance of serious harm, and the Tribunal is not satisfied that this is the case. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’. In this case, given the low rates of kidnapping, the reduction in power of the paramilitaries, the focus of criminal gangs in remote areas on drug feuds and other conflict, and the commitment of the new government to peace with these groups, the Tribunal is not satisfied that there is a real substantial basis for the applicants’ fear of kidnapping.

8. The applicants also provided an article concerning child recruitment in Bajo Cauca and the Amazon Vaupes regions.[67] The article suggested that criminal groups and insurgents were enlisting and exploiting teenagers and between 169 and 235 cases a year were reported of forced child recruitment. While recognising that child recruitment by illegal armed groups is a serious problem,[68] the Tribunal notes that in the article provided by the applicants, Cali was not highlighted as an area of high recruitment. Similarly, the Office of the High Commissioner for Human Rights states that in 2019 the ELN "forcibly" recruited children in Antioquia, Arauca, Caquetá, Chocó, Guaviare, Meta, and Norte de Santander.[69] The same source indicates that in 2020, children were "forcibly" recruited in Antioquia, "allegedly" by the ELN, and in Caquetá, "allegedly" by a FARC dissident group (UN, 17 March 2021, para. 79).[70] The source also reports that in 2019, 19 children were killed by "criminal groups" in Antioquia, Caquetá, Nariño, and Norte de Santander (UN 8 May 2020, para. 84). The same source recorded that two children were killed by criminal groups in 2020, one in Antioquia, and one in Norte de Santander, the latter allegedly by the ELN (UN, 17 March 2021, para. 79).[71] An article by the Office of the Ombudsman indicates that between 17 March and 30 September 2020, 83 cases of [translation] "forced recruitment" of children and adolescents were reported, as follows: in Caquetá (21), Cauca (19), Putumayo (8), Antioquia (7), Arauca (6), Chocó (4), Amazonas (3), Córdoba (3), Huila (2), Meta (2), Vichada (2), Nariño (2), Bolivar (1), Boyacá (1), Cundinamarca (1), and Tolima (1); dissidents were responsible in 54 of the instances, the ELN in six, and the Gulf Clan in one (Colombia, 1 December 2020). A January 2020 report by HRW states that girls who escaped reported sexual violence, including rape and "forced abortion" (HRW, 22 January 2020, 3).[72] This is a significant problem, but relative to the country’s child population, the numbers are small, and the issue is not prevalent in Cali. The Tribunal is not satisfied, therefore, that there is a real chance of serious harm for the first applicant as a result of forced recruitment.

   [67] M Charles, Insight Crime, ‘Bajo Cauca and Vaupes – Colombia’s Child Recruitment Hotspots’, 1 April 2021.

   [68] Freedom House, 3 March 2021, referred to in the Canadian Immigration and Research Board Report 2021.

   [69] OHCHR, 8 May 2020, para. 84, referred to in the Canadian Immigration and Research Board Report 2021.

   [70] Canadian Immigration and Research Board Report 2021

   [71] Canadian Immigration and Research Board Report 2021

   [72] Research Directorate, Immigration and Refugee Board of Canada, ‘ELN, Los Pachenca, and Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC) [or Revolutionary Armed Forces of Colombia—People's Army (Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo, FARC-EP)] dissidents; methods and ability of these groups to track their targets across the country; state protection (2019–June 2021)’, 13 August 2021.

9. The Tribunal is not satisfied, for all the reasons set out above, that there is a real chance of serious harm for the first applicant – that is, that the chance of harm would be substantial, as opposed to remote or a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379).

10. Although the applicants made their initial claims for this protection visa on the basis of fear of persecution in relation to the first applicant, their daughter, with the parents as members of her family unit, the second applicant also mentioned at the Tribunal hearing that she feared being killed or being the victim of a sexual assault. The sources set out above suggest that the crime rate has dropped in Colombia, although it is still high, and Cali was reportedly the city in Colombia with the most reported homicides in 2022.[73]

    [73] Newsroom Infobea, ‘Cali is the city in Colombia with the most reported homicides during 2022’, 2 April 2022, <>

    However, crime is generally random and opportunistic. The Tribunal is not satisfied that criminal conduct would amount to harm for one of the reasons set out in the legislation. Crime is by nature random and non-selective, and the motivations are usually economic or based on the characteristics of the aggressor, rather than for reasons of race, religion, nationality, membership of a particular social group or political opinion. Studies on crime[74] indicate that there are multiple motivations for criminal conduct and that crime is often opportunistic, rather than caused by a desire to inflict harm on a particular group. The Tribunal is satisfied that this is the case here, as if crimes were to be committed on the applicants it would not be for reasons of membership of a particular social group or family, but likely because of opportunity, greed, propensity for violence or other reasons not related to one of the reasons set out in the legislation.

    [74] US Department of Justice, Agnew, Why Do Criminals Offend?: A General Theory of Crime and Delinquency, 2005, <>

    Paramilitary groups are still operational on a smaller scale and there have been killings, but primarily in rural areas due to drug feuds and conflict over other illegal operations.[75]While there is always a possibility that a person is a victim of crime, the legislation requires that there must be a real chance of serious harm for one of the reasons set out in the legislation. The evidence does not establish that the chance of being a victim of crime for any of the applicants is real and substantial (Chan v MIEA (1989) 169 CLR 379). Further, given the random nature of crime, the Tribunal is also not satisfied that the applicants face a real chance of serious harm for one of the reasons set out in the legislation.

    [75] Rueda M, Associated Press (AP), 23 September 2020, ‘Wave of massacres signals new chapter in Colombia’s conflict’, >

    The Tribunal is also not satisfied that any harm the applicants would suffer would involve systematic and discriminatory conduct.[76] It is well established that ‘persecution’ within the meaning of the Convention involves a discriminatory element. Courts have consistently held that the discriminatory element of persecution involves an element of motivation on the part of the persecutor. In the well-known passage in Ram v MIEA & Anor (1995) 57 FCR 565 (at 569), cited with approval by the High Court and Federal Court on a number of occasions, Burchett J said:

    Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

    [76] Section 5J(4) of the Act.

11. The Convention definition of ‘refugee’ does not encompass those fleeing generalised violence, internal turmoil or civil war. The Tribunal is not satisfied that there would be systematic and discriminatory conduct, as the crime would be random and generalised, rather than a result of harm motivated by one of the reasons set out in the legislation.

12. The applicants also claimed that the authorities cannot control gangs and they would not have state protection. They said that there were some protected areas but that they could not afford to live there. A number of media articles were provided to the Department. They said that although there are various independent mechanisms in place to regulate the judicial system, it is burdened by a lack of resources and high levels of corruption, with exceedingly high impunity rates.[77]

    [77] Global Organised Crime Index, <Criminality in Colombia - The Organized Crime Index (ocindex.net)>.

13. According to sources quoted in the Canadian Immigration Report 2021, the government has a "range" (Amnesty International, 8 October 2020) or "array" (HRW, 10 February 2021) of protection mechanisms it can use, including the National Protection Unit (Unidad Nacional de Protección or UNP) and the Early Warning System (Sistema de Alertas Tempranas or SAT) (Amnesty International, 8 October 2020; HRW, 10 February 2021). According to HRW, the UNP falls under the Ministry of Interior and is responsible for protecting "people at risk" (HRW, 10 February 2021).[78]

    [78] The Canadian Immigration and Research Board Report 2021.

14. The report suggests that protection measures may include the provision of cell phones, vehicles, bodyguards (HRW, 10 February 2021; Senior Analyst, 8 July 2021; Amnesty International, 8 October 2020) and bulletproof vests (HRW, 10 February 2021; Senior Analyst, 8 July 2021). According to HRW, the UNP has protected "hundreds" of human rights defenders (HRW, 10 February 2021). However, Amnesty International reports that the UNP "only" provides protection "on a highly individual basis," and "generally within urban areas" (Amnesty International, 8 October 2020). According to the Senior Analyst, it is "really hard" for those targeted by criminal groups to access state protection due to a "very high threshold" for eligibility; a "certain" amount of "public exposure" is required, such as for "known leaders" (Senior Analyst, 8 July 2021). The HRW report states that "many community leaders" do not receive threats or do not report them to prosecutors, which is a "require[ment]" to receive protection (HRW, 10 February 2021). According to the Office of the Ombudsman, the SAT is an [translation] "instrument" used by the Office of the Ombudsman to "collect, verif[y], and analyze, in a technical manner, information related to situations of vulnerability and risk of the civilian population, as a consequence of the armed conflict," and to warn the "authorities concerned" so they are able to "coordinate and provide timely and comprehensive attention to the affected communities" (Colombia n.d.). However, HRW reports that the authorities responsible for acting on its early warnings "have repeatedly failed to do so or have reacted in a pro-forma and unsubstantial way, leading to scant impact on the ground" (HRW, 10 February 2021). Amnesty International similarly states that the SAT is of "little effect" as there are "no consequences for state bodies that fail to comply with its measures" (Amnesty International, 8 October 2020). According to the Professor, although the UNP and SAT have grown "more effective", "significant flaws" remain, including "a lack of proper intelligence" on criminal groups, "pushback" from "local political elites" and "infiltrators" in government agencies and other organisations (Professor, 12 July 2021). The Collective Protection Route (Ruta de Protección Colectiva), a "set of actions adopted by the Colombian authorities to prevent risk, counteract threats and minimize the vulnerabilities of groups and communities" is also not "effectively implemented" (Amnesty International, 8 October 2020). Sources indicate that the government is experiencing "significant" financial "constraints" (InSight Crime, 11 November 2019; HRW, 10 February 2021)[79]. This information suggests that there are constraints on state protection due to resources, but not that there is discriminatory withholding of state protection for any reason.

    [79] The Canadian Immigration and Research Board Report 2021.

15. The Tribunal has found above that there is not a real chance of serious harm in the form of kidnappings or other crimes. The Tribunal is also not satisfied that the state would discriminatorily withhold protection from the applicants on the basis of their membership of a particular social group that is, the family. While there may be problems with resourcing[80], the independent information does not suggest that the state would withhold protection on the basis of the applicants’ membership of their family.

    [80] The Canadian Immigration and Research Board Report 2021.

    Is there a well-founded fear of persecution for one of the reasons set out in the legislation?

16. The applicants claim fear based on membership of the particular social group of [her named] family. They claim that there is a high risk of their daughter being kidnapped in cities across Colombia. They also claim that in reprisal for not being able to pay any 'ransom' requested for their daughter in a 'kidnapping', she might be delivered to another family.

17. In post-hearing submissions, the applicants claimed that the first applicant was the member of a particular social group of her family in accordance with s 5K of the Act. The applicants referred to the High Court case of Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, in which the court said that the term ‘particular social group’ should be given a wide interpretation. The applicants referred to the US case of Matter of L-E-A- Attorney General Overrules Finding of Family as a Social Group. Recent Adjudication: 27 I. & N. Dec. 581 (Att’y Gen. 2019) in which the Attorney-General contradicted longstanding precedent that family comprised a social group, a decision criticised in the Harvard Law Review.[81] The Department was not satisfied that the applicant’s family was a particular social group, pursuant to s 5K of the Act.

    [81] Harvard Law Review, < >

    The Tribunal is not satisfied that there is a real chance of serious harm, nor that any harm would occur for the reason of the first applicant being a member of the particular social group of family, were such a social group to exist, and therefore the issue of family as a particular social group is not relevant.

    Summary of findings on the refugee criterion

18. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

    Does the applicant meet the complementary protection criterion?

19. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are 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 (the complementary protection criterion).The evidentiary standard is ‘substantial grounds for believing’.

20. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’ are further defined in s 5(1) of the Act.

21. Section 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: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted, for reasons set out earlier, that there is a real chance of kidnapping for the first applicant or other forms of crime for the applicants, for reasons set out earlier. For the same reasons, on the basis of the decision in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of significant harm in the form of kidnapping or crime.

22. The Tribunal recognises that the applicants may potentially suffer some psychological, emotional and even some economic hardship in the event of removal to Colombia, given that they have lived in Australia since 2014/15; however, the Tribunal is not satisfied that these detriments would be intentional on anyone’s part, or that they would amount to arbitrary deprivation of life or the deprivation of life. Hence, such detriments would not meet the requirements of significant harm as particularised in s 5(1) of the Act.

23. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These include where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act. When asked about whether crime is faced by the population generally, the applicants claimed that they would be regarded as wealthy, and therefore the risk would be faced personally. For reasons set out earlier, the Tribunal is not satisfied that the applicants would be targeted on the basis of being considered wealthy. Crime impacts all sectors of the population. The Tribunal is satisfied that the risk is faced by the country generally and not the applicants personally.

    Summary of findings on complementary protection

24. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Colombia there is a real risk of significant harm.

    Referral for ministerial intervention

25. The Tribunal refers the case to the Department for consideration by the Minister pursuant to s 417 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

26. The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and respectfully refers the matter to the Department for ministerial consideration pursuant to these provisions.

27. Pursuant to the Ministerial Guidelines, cases which have compassionate circumstances regarding the age of the person that if not recognised would result in serious ongoing and irreversible harm and continuing hardship to the person, may be brought to the Minister’s attention. The first applicant is aged [age], and she has a younger brother aged [age]. They were born in Australia and the family has significant connections to Australia. Returning to Colombia which is completely unknown to them, and where there is no financial stability,  may result in serious ongoing and irreversible harm and continuing hardship to the children. The applicant parents have said that their objective is the wellbeing of their children.

1. The applicant parents have been in Australia since 2014/15, and the first applicant and her brother were born in Australia. The applicants told the Tribunal that they want their children to be safe and to honour the country and have good values, and they would contribute to the society and its principles. The Tribunal notes that the applicants have significantly integrated into the Australian community and contributed to disadvantaged people in their community. References from community members are summarised below.

100.   [Ms A], a social worker with [Agency 1] in a letter dated 6 February 2023, stated that she had known the applicant family for eight years, visited their home and met their children. She said that they provided a good life for their children. They are involved with the local church, including in volunteer work, serving, helping and supporting the general community through food relief projects. She said that they are described as good-hearted people by members of the community and go ‘beyond their capacity to help others, showing dedication to the helping role in time when disadvantaged people around them are in need’. She said that they had a stable social network of friends and neighbours.

101.   The Secretary of ‘[Agency 2]’ also provided a letter dated 30 January 2023. She said that the applicant family had been active members of their charity, helping those in need, supporting youth with mental health issues and assisting with delivery of food to international students who are living by themselves with no family.  They have also helped with [specified roles]. During the pandemic they helped organise distribution points for delivering food. She supported their application for a humanitarian visa. 

102.   In a letter from [Pastor A], the Senior Pastor of [Church 1], undated, the pastor said that the church supported the applicant family, who for the last eight years had cared for elderly people in the church. He said that they are mentors of the [named] team and are responsible for [specified roles]. They have helped spread gospel in the community and are committed to those in need. He said that they are diligent, kind-hearted and dedicated.

103.   Also provided by the applicants were a number of YouTube videos and photographs to demonstrate the involvement of the family in the church. In 11 videos provided, the second and third applicants are depicted running devotional and church services at [Church 1]. In one video there is testimony about how their child was given an 80% chance of having [a medical condition] and how their faith resulted in a healthy child. Also submitted were 34 photographs, showing the applicants participating in church activities and services. The photographs show the applicants assisting the community by running food drives and participating in church events.

CONCLUDING PARAGRAPHS

1. 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 criteria set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s 36(2)(b) or (c) and cannot be granted the visa.

   DECISION

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

Jane Marquard
Member

Attachment A -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

<

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Citations

1712465 (Refugee) [2023] AATA 1999

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4

AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

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