1718041 (Refugee)

1718041 (Refugee) [2023] AATA 2500 (25 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms MELANY RAMOS (MARN: 9896522)
CASE NUMBERS: 1718041
2208034

COUNTRY OF REFERENCE: Colombia
MEMBER:Roslyn Smidt
DATE:25 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 25 May 2023 at 1:19 PM

CATCHWORDS
REFUGEE – Protection visa – Colombia – political opinion –holds left wing views – opposition to right wing paramilitary groups – applicant A was threatened by right wing paramilitary groups –not a well-known political figure – applicant A’s radio broadcasts –contradictory evidence– delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 August 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who are citizens of Colombia, applied for the visas on 4 May 2016. The delegate refused to grant the visas on the basis that she did not accept that their fears were well founded.
The applicants appeared before the Tribunal on 15 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
Mr [name] (applicant A) is a [age] year old married man. He was born in [Town 1], a town located about [number] kilometres from Cali, but lived in Cali from about 1993 until his departure for Australia. He completed high school in November 1994. From January 1997 until December 1998, he studied [at] the [Institute 1]. From February 2006 to December 2008, he studied at [University 1]. He worked as [Occupation 1] and [Occupation 2] for various radio stations from about 1998 until August 2010. He also ran a business [from] August 2001 until December 2006 and from February 2007 until July 2008 he was involved in [sales].
Applicant A arrived in Australia on a student visa on [date] September 2010. He held student visas in his own right or as a dependent of his wife until March 2015. He returned to Colombia between [date] July 2012 and [date] September 2012 and between [date] May 2014 and [date] August 2014. On 12 March 2015 his wife applied for a further student visa. He was included as a dependant in that application. The application was refused by a delegate of the Minister on 6 July 2015. The delegate’s decision was upheld by a differently constituted Tribunal on 7 April 2016. Applicant A applied for protection on 4 May 2016.
The applicant’s son [name] (applicant B) was born in Australia after the applicant’s application was refused by the delegate. A separate application for protection was lodged on his behalf on 8 June 2021.
Ms [name] (applicant C) is applicant A’s wife and applicant B’s mother. She was included in applicant A’s application as a member of his family unit.
SUMMARY OF CLAIMS
Applicant A claims that he would be at risk of harm from right wing paramilitary groups on return to Colombia because he holds left wing views and has expressed these views on the radio and elsewhere in Colombia and Australia.
Applicant A claims that his wife and son are also at risk of harm from the groups and individuals who he believes would target him if he returned to Colombia.
It has also been claimed that applicant B would face problems due to the targeting of children for recruitment by some groups and the general situation in Colombia.
COUNTRY INFORMATION[1]
[1] The following overview is based on Colombia: Country Focus European Union Agency for Asylum December 2022; Protecting Colombia’s Most Vulnerable on the Road to ‘Total Peace’, International Crisis Group Report 98 Latin America and Caribbean 24 February 2023; Colombia: Organizational structure of the Black Eagles (Águilas Negras), (March 2015-May 2016) COL105522.E; Human Rights Watch World Report 2022 Colombia; US Department of State Country Report on Human Rights Practices Colombia 2022. The Genocide of a Political Party – Unión Patriótica over 6,000 members killed in the 1980s and 1990s ABC Colombia / Colombia EU Annual Report on Human Rights and Democracy in the World 2021.
Colombia is among the most longstanding democracies in Latin America. It also has a long history of violence and widespread human rights abuses by the government, armed political groups and criminal gangs. For more than 50 years until 2016, the left-wing Revolutionary Armed Forces of Colombia (FARC), a guerrilla group was in conflict with the government. A range of other left wing guerrillas, paramilitary and criminal groups have also been active at different times during that period of conflict. The period was marked by widespread killings and other abuses. FARC committed some of these abuses, but more were by right wing paramilitary and criminal groups. According to reports security forces were also involved in thousands of extrajudicial killings of civilians in the late 1990s to early 2000s, often falsely claiming that they were guerrilla combatants. It is generally agreed that prior to efforts to demobilise these groups in about 2003 conservative governments and security forces collaborated with or tolerated the activities of paramilitary groups. Victims of the conflict were mainly people associated with or believed to be associated with FARC and civilians in rural areas, most commonly Indigenous and Afro-Colombian people.
The largest right wing paramilitary organisation was the United Self-Defense Forces of Colombia (AUC). It was responsible for retaliations against FARC and other left wing groups as well as numerous attacks against civilians. It publicly singled out ‘political and trade union operatives of the extreme left’ as legitimate targets. It conducted an ongoing campaign against the Union Patriotica, a political party formed by FARC and the Colombian Communist party in 1985 which resulted in some 6,000 deaths, mostly in the 1980s and 1990s.
Following a process which began in 2003 most AUC blocs had demobilised by early 2006. Local successors such as the Black Eagles continued to exist but operated mostly as criminal gangs in areas previously controlled by those AUC groups. Research conducted by the Canadian Immigration and Refugee Board in 2016 suggested that the group had a presence in a number of areas, including Cali, but also stated that the name Black Eagles seemed to be a ‘blanket name’ for paramilitary successor groups after the demise of the AUC and that while the name was used by people or gangs wishing to make threats, these groups generally lacked any real structure. The Canadian report lists a number of threats or attacks on a range of people including journalists which were claimed by or attributed to the Black Eagles in 2015-2016. None of the incidents reported occurred in Cali.[2]
[2] The report notes a report in a Cali newspaper, but the reported problems occurred in an area very distant from the city.
A peace agreement with FARC was reached in 2016 which resulted in the demobilisation of 13,000 members of the group and their transition to civilian life. While the peace agreement had a significant impact, it did not end the violence. Left wing guerrilla groups including the National Liberation Army (ENL) and dissident FARC groups which refused to disarm have fought each other seeking to control some areas. Armed criminal groups which include former members of right wing paramilitary groups have sought to control communities to gain access to mines, fertile farmland, gas siphons and trafficking corridors. The areas they control has increased since 2016, but violence continues to occur mostly in remote communities in the west of the country where it impacts mostly on indigenous and Afro-Colombians, many of whom have been killed or displaced. That said, illegal armed groups have some presence in many parts of the country including some cities.
UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia, September 2015 (the Guidelines) provide a useful overview of the situation at that time. In broad terms they confirm that violence carried out by armed right wing and guerrilla groups continued to be a significant problem in many parts of Colombia, primarily in more rural areas but also in cities. They also confirm that by 2015 right wing groups had become largely criminal organisations. They note that the Government had made considerable efforts to enhance protection for victims of armed groups including those formed by former right wing paramilitary groups, but their ability to do so was limited in areas where these groups had a strong presence or where there is active conflict due to lack of capacity, and in some cases corruption and complicity by local and regional authorities.
The Guidelines provide a list of 12 potential risk profiles which include active members of some social and political movements, indigenous communities, people of Afro-descendants, local and regional governmental authorities and public officials involved in the administration of justice, human rights defenders and journalists. It is clear from the commentary it was people living or working in areas under the control of armed groups or where there was active conflict who were most at risk.
With regard to the journalists, the 2015 UNHCR Guidelines report that threats in the form of direct threats to individuals and in flyers which name individuals had been common since at least 2006. Journalists were targeted for reasons including disclosing and disseminating information on the armed conflict including how armed groups operate and corruption by local authorities as well as issues related to drug trafficking, corruption, and land restitution. Later a US Department of State Report stated that the law provides for freedom of expression, that the government generally respected this right, and that the independent media were active and expressed a wide variety of views without restriction. However, they report that violence against journalists continued to be a significant problem. According to the 2021 report members of armed groups inhibited freedom of expression by intimidating, threatening, kidnapping, and killing journalists. National and international NGOs reported media regularly practised self-censorship because of threats of violence from armed groups.
According to the European Union Agency for Asylum 2022 report, the distinction between criminal and political violence is not always clear because most armed groups are not ideologically driven and no longer distinguish between enemies and allies on that basis, but rather, on who aligns with or opposes their military or economic interests in that local area at any given moment.
According to numerous reports, including a number submitted by applicant A illegal armed groups continue to target a range of groups and individuals in areas where they operated or were in conflict with other illegal groups, mostly in relation to criminal enterprises. This created a dangerous situation for many local communities, in particular for social leaders and human rights and environmental defenders.
Political developments since 2010
The Unity Party candidate, Juan Manuel Santos, was elected president in June 2010. According to the US Department of State Country Report for Human Rights for 2010, an independent media was active in Colombia and expressed a wide range of views. Observers found that the elections were generally free and fair and that political parties could operate without restrictions or outside interference. The OAS observation mission observed that levels of election violence were the lowest in 30 years.
Presidential elections were next held in Colombia on 25 May 2014. A run-off between the two leading candidates took place three weeks later on 15 June 2014. According to the US Department of State Country Report on Colombia for 2014 the OAS electoral mission considered elections held that year were generally free and fair and involved the lowest levels of violence in 38 years. However, an independent election monitoring NGOs observed that electoral fraud remained a serious concern and reported nine incidents of ‘political violence’ against candidates during the election.
Demonstrations driven by a range of grievances began in 2019. In April 2021 thousands took to the streets to protest against increased taxes, corruption, and health care reform proposed by the government of the day. A national strike was called in May 2021. Opposition leader Gustavo Petro [Mr Petro] supported the protests and invited Colombians to participate in the strike. Tens of thousands protested in Cali and other large cities. The protests were mostly peaceful, but some involved significant destruction of property. The resulting clashes with police resulted in a number of deaths and there were credible claims of abuses by police, particularly in Cali. Harassment and threats against journalists by the government of the day increased in response to their coverage of these protests.
Legislative and presidential election were held in March and May 2022. A second round of voting for President was held in June 2022. Mr Petro was sworn in as President of Colombia on 7 August 2022. Mr Petro, who was a member of the M19 left wing guerrilla group as a young man before moving into mainstream politics, is the first leftist elected to the Presidency. The Pacto Historico coalition also won the most seats in both houses of the Colombian congress.[3] According to the US Department of State Country Report on Human Rights Practices of 2022 most observers considered the elections free and fair. However, according to the Carter Center[4] the elections were marked by extreme polarisation and candidates could not campaign freely in areas where armed clashes were taking place. Some candidates reported threats and had to cancel several campaign events. During the second round, both candidates restricted their public appearances.
Children
[3] Mr Petro To Have Majority in the Colombian Chambers | News | teleSUR English
[4] Analyzing Colombia’s 2022 Presidential Elections, July 2022, The Carter Center
According to the 2015 UNHCR Guidelines some armed groups engaged in underage recruitment, mostly but not always in rural areas. Most vulnerable to this possibility in 2015 were children who lacked social support networks. Also facing potential risk of harm were children associated with artistic and cultural activities that armed groups perceive as threats to social control, children who oppose forced recruitment, children outside the educational system, or students who get involved with income generation activities in the informal economy. Children in conflict areas also faced the possibility of being victims of attacks, occupation of their schools and the killing and maiming within the context of general violence.
Cali and Valle del Cauca
Santiago de Cali or Cali, is the capital of the Valle del Cauca department. It has a population of about 2,228,000 residents making it the third largest city in Colombia. Cali is also known as the salsa Capital of Colombia. It is both a popular tourist destination and an economic and transportation hub of Colombia. The current Mayor of the city belongs to the centre-left Green Party. As noted above the Valle del Cauca department is one of the areas which had been subjected to violence from a variety of groups in past years. However, as in other parts of the country this appears to have occurred mostly in more remote rural areas outside Cali.
CLAIMS AND EVIDENCE: APPLICANT A
Submissions to the Department
According to the application lodged by applicant A, he studied [at] the [Institute 1] from January 1997 until December 1998 and [at] the [University 1] from February 2006 to December 2008. According to his application he worked for [an employer] from September 1998 to August 2010 as a [occupation], [Occupation 1] and [Occupation 2]. However, he later clarified that he had worked for a number of different radio stations during that period. From August 2001 to December 2006, he operated a private business [and] from February 2007 to July 2010 he worked as a sales person [and] as an [occupation] for a [company].

Applicant A provided a written statement dated 3 May 2016. He said that his brother [name] was murdered by a paramilitary group sponsored by local landowners in 1988 because of his political views. In part because of this, he was always interested in politics and human rights issues. As a result of his [studies], he was able to work part time as a [Occupation 1] on different radio stations in Cali from 1997 until 2010. He spoke about the injustices and abuses committed by corrupt politicians and others including right wing military groups known as Self-Defence Groups of Colombia (AUC. Because of this he received death threats from paramilitary groups sponsored by corrupt politicians. For safety he and other [colleague]s worked at irregular times.
Applicant A said that he had never ceased speaking out against injustices. In 2005 he supported Carlos Gaviria Diaz, the POLO candidate in upcoming elections. Because of this and his criticisms of abuses by right wing paramilitary groups the Calima Bloc began to threaten him by telephone. In 2010 he supported POLO candidate Mr Petro and travelled to meetings in a number of rallies in different [municipalities]. As he was leaving one of these meetings in [Town 1] on 11 June 2010 some men who identified themselves as members of the Calima Bloc and knew his name attacked him violently and attempted to force him into a car. He was rescued by bodyguards. Following this attack a condolence card was sent to his father’s home in [Town 1] and his home in Cali. He decided that it was too dangerous to remain in Colombia, so he obtained a student visa and travelled to Australia.
Applicant A continued to support Mr Petro, including when he left POLO in 2011 and formed a party called Colombia Humana. POLO and Colombia Humana later formed an alliance called Pacto Historico.
Applicant A said that about a year after he arrived in Sydney, he learned that his nephew had died in a motorcycle accident. According to witnesses armed men on motorcycles were following him at high speed when he lost control on a curve. Applicant A believed that the men might have been looking for him.
In May 2012 applicant A became involved with community radio station [Station 1] in Sydney.
In July 2012 applicant A travelled to Colombia to attend his mother’s funeral. In 2014 he travelled to Colombia to support the party’s candidate in the second round of voting for the Presidential election. He stayed at his sister’s house. Paramilitary groups called her house twice but hung up without saying anything. On the third occasion his sister handed the phone to him. The person on the phone accused him of helping the guerrillas from POLO and told him to leave or he would be killed. Applicant A returned to Australia as soon as possible.
After returning to Australia in 2014, he continued to work on community radio. In 2015 he decided to create an online radio station called [Station 2] to reach Colombians in Colombia and outside the country. He broadcast music, sports and political opinion on that station.
After applicant A’s wife’s student visa application was refused they decided to apply for protection.
In support of his claims, applicant A provided:
·     An undated letter from POLO which states that applicant A had been a member since 2005, that he was involved in community work and spoke about the ideals of the party on the radio. It says nothing which suggests that he or anyone else had experienced problems because of this.
·     An undated letter from POLO which states the party was formed in 2002 but divided in 2011 with some members leaving to form the Progressivists Movement led by Mr Petro. It states that applicant A had identified himself with the social and democratic ideologies of the party through community work and his work on the radio since the party was founded. It makes no mention of any threats or problems he faced as a result.
·     An undated reference from [Mr A], a journalist, [which] states that he worked with applicant A at several radio stations between 1998 and 2010 and that he was professional in his [work]. It does not suggest that he commented on political matters or that he had faced any problems as a result of his [work].
·     An undated letter from the Black Eagles Calima Bloc which threatens to kill applicant A if he continues to promote left wing ideologies.
·     A report from the municipality of [Town 1] which states that applicant A had reported receiving threats from the Calima paramilitary group in 2000, 2006, 2010 and 2014 because he was promoting POLO.
·     A recommendation dated 1 March 2016 from [Station 1] which states that applicant A had been involved with the station from May 2012 and that he had been involved in helping students who had relocated to Australia. It says nothing which suggests that his program contained political commentary of any kind.
During an interview held on 14 March 2017 the delegate noted that applicant A had a valid visa for [Country 1] issued in Australia on [date] August 2014 which was valid until 2024 and advised him that in her opinion this gave him the right to enter and reside in [Country 1], that his failure to avail himself of that right suggested that he did not fear harm in Colombia and in any event his possession of that visa meant that Australia did not have protection obligations in his case.
The delegate found that Australia did not have protection obligations in relation to applicant A because he had not taken all available steps to avail himself of the right to enter and reside in [Country 1]. I note that applicant A held a [visa], a non-migrant visa roughly equivalent to an Australian [temporary] visa.
CLAIMS AND EVIDENCE OF APPLICANT B
Submissions to the Department
In a submission dated 8 June 2021 the applicants’ representative states that applicant B would be at risk of harm if he returned to Colombia because his father had been targeted by right wing groups.
On 14 February 2022 applicant A provided a statement dated 9 February 2022 in which he said that he could not return to Colombia because of his past and present support for left wing political ideals and parties and his opposition to right wing paramilitary groups. He said that Calima Bloc which had threatened to kill him in the past was growing rapidly and would harm him if he returned to his homeland. He said that he continued to broadcast his views on [Station 3] and on [Station 2], an online radio station which he created in 2017. He used these programs to support the Pacto Historico. He said that right wing groups in Colombia target the children of political activists and applicant B would be at risk of harm for that reason.
On 14 February 2022 a number of documents were provided in support of applicant B’s application, including:
·     A reference from [Station 3] dated 8 February 2022 which states that applicant A had been involved with the station since April 2017 doing social work in the Colombian community and that he had presented the [Station 2] program for the previous three years.
·     A reference from [Group 1] dated 8 February 2022 which states that applicant A uses his program on [Station 3] to carry out social work in the Colombian community in Australia and to denounce the abuses of the government of Colombia and promote peace, equality and human rights in his homeland.
·     A letter dated 8 February 2022 from[Mr B], [Mr [B] a community [leader]. It states that applicant A gave him the opportunity to address the Colombian community in Australia on his [Station 3] program in particular to address the social outburst (the demonstrations) which took place in Colombia on 28 April 2021. It states that Mr [B] valued applicant A’s democratic work promoting and defending human rights in Colombia.
·     A transcript of applicant A’s interview with Mr [B]. It refers to the fact that the program was also broadcast online and on a radio station in Cali. Both applicant A and Mr [B] were strongly critical of the government in power at that time and of those who dominated the economy. The discussion covers economic and social problems, the reasons for the demonstrations in and around Cali in 2021 and the brutal response of the security forces which resulted in many young people being killed. The only mention of paramilitary groups relates to their role in the displacement of farmers in rural areas.
·     An undated letter from Calima Bloc which calls applicant A a communist and threatens to kill him for misinforming the community.
Delegate’s interview
Applicant A attended an interview with the delegate on behalf of his son on 16 February 2022. He worked in [specified field] when he lived in Colombia. Initially his work was mostly technical, but later he was an [Occupation 1]. The stations he worked [had] an audience of some [number]. He was forced to change stations on a number of occasions because the stations were forced to remove him because of the views he [expressed]. His last radio job in Colombia was [a] program called [name]. It was broadcast three times a week on several radio stations and focused on social and political issues which caused problems. He held that job for about three years. He was also involved in community work in his local area.
When asked for details of the threats he had received before he left Colombia, applicant A said that he had been threatened directly about four to six times and many more threats were sent to the radio stations where he worked. The direct threats took the form of pamphlets or condolence cards sent to his home and in 2010 members of the Calima Bloc punched him and attempted to kidnap him.
Applicant A confirmed that he received the written threat from the Aguilas Negras provided with applicant B’s application in 2020. He said that he had received similar threats in 2006 and 2008 and possibly at other times. He also received threats from other groups. He reported some of these threats to the police and the Ombudsman’s office, but the police did not investigate his complaints. He received death threats in 2014 when he returned to promote a blank vote in the Presidential election.[5]
[5] During the hearing it was explained that the POLO candidate was not included in the run-off elections as he had not received sufficient votes, but if a majority of voters returned a blank ballot paper the election would have to be re-run with all candidates included.
The delegate noted that applicant A had returned to Colombia in 2012 and again in 2014. He said that his nephew who was like his son had been killed in about 2011 and his mother died in 2012. His nephew’s death was reported as a traffic accident, but he was killed because of applicant A’s political views.
Applicant A said that he had been involved in [a] program on [Station 3] for about three years which was transmitted online and broadcast several times a week [in] Colombia. He established a studio in Cali, but he was forced to close it due to threats from the Aguilas Negras. The threats were made over [social media] using the telephone number of the studio. He did not report these threats because he is not in Colombia and because in the past the police had done nothing to help him. He continued to broadcast online and continued to receive threats. The delegate observed that his program appeared to focus mostly on salsa music. He said that Cali was the salsa capital of Colombia and he used music to gain an audience for his views and the music he played had a political message.
The delegate asked why applicant A had not applied for protection until 2016. He said that he came to study and he was optimistic and hoped that things would change. When he began to work on the radio in Australia the threats started again and his nephew was killed so he feared for his life. The delegate observed that he had returned to Australia most recently in 2014, which was after these events, but had not applied for another two years. Applicant A said that he had waited, hoping that things would change, but he continued to receive threats.
The delegate observed that it appeared that the applicants could avoid problems in Colombia by relocating to another area, for example Bogota. Applicant A noted that he had continued to receive threats while living in Australia and said that he did not believe he would be safe anywhere in Colombia.
Post interview submissions
On 16 February 2022 the delegate wrote to applicant A setting out a number of concerns raised during the interview. He noted that applicant A had travelled to Colombia in 2012 and 2014 which could suggest that his claims regarding his fear of returning to Colombia lacked credibility. He also noted that applicant A had failed to provide evidence in support of his claims regarding his work on the radio in Colombia and that the evidence he had provided regarding his work for [Station 3] and his online station suggested that his program was mainly a music show and would not cause him problems on return to Colombia. He also observed that it was his understanding that the situation in Colombia had changed since he lodged his application and that he had been unable to locate information which suggested that children are targeted in Colombia because of the political activities of their parents. The delegate appears to have attached a screenshot of a page from the [Station 3] website downloaded in May 2022 to this letter. It states that applicant A played salsa classics and other music and told stories [on] his program. It does not mention any political commentary.
In a response dated 2 March 2022 applicant A said he had returned to Colombia in 2012 because his mother was dying. The trip in 2014 was to support the ‘blank vote’ campaign. While he was in Colombia on the second occasion he was threatened and returned to Australia. His wife held a student visa, but an application for a further visa was refused by the Department and a differently constituted Tribunal because his wife’s stepmother altered supporting financial documents without her knowledge and the institute at which she was studying issued conflicting documents regarding her studies. Because it was unsafe for them to return to Colombia, they sought help and were advised they could apply for protection.
Applicant A said that he had worked on radio programs in Colombia from 1997 until 2010 using space leased to him by a number of stations and repeated the claims made earlier regarding the problems he faced because of this.
Applicant A said that he continued to work on radio in Australia, first on [Station 1] and later on [Station 3]. In August 2015 he decided to create an online radio station called [Station 2] with the aim of spreading his political and social ideology. The station now has some [number] followers who share his views on social [networks]. He broadcasts a mixture of salsa music, much of it political in nature, and political comment. Cali is the salsa capital of the world and he used music to attract people to his program.
In April 2017 applicant A began to broadcast a [program] on [Station 3]. It was also broadcast in Colombia over the Internet and on local FM stations. While the program was mostly musical, it also contained political content. In August 2017 he opened a studio/booth in [a venue] in Cali. It operated as a non-profit organisation. It broadcast political, social, sports and musical programs at different times of the day. Due to constant death threats by phone and pamphlets addressed to him by name, he was forced to close the station in November 2018. However, he continued to broadcast his program online and continued to receive threats throughout his time in Australia.
Applicant A said that his program had a significant following. The FM station which broadcast his program had an audience of [number] or more and he had more than [number] followers on social media.
Applicant A said that the situation in Colombia had deteriorated since he left Colombia and groups like the Calima Bloc continued to operate in all parts of Colombia and were actively searching for people like him to eliminate them from left wing politics.
Applicant A said that in Colombia it was common practice for children and partners of those targeted for persecution to be harmed as a way of forcing them to cease their activities. He had also said that he feared for his son because young people in Colombia lacked the opportunity to develop freely and corruption and inequality meant that many took up a life of crime or decision to leave.
In support of these claims, applicant A provided several documents, including:
·     A letter from [a radio station] in Cali dated 23 February 2022 which states that applicant A commenced work for the company [in] 1997 and worked [on] programs of a musical, political, social, opinion and sports nature between 1999 and 2010.
·     Translations of transcripts of what appear to be messages sent to applicant A regarding the threats received by the staff at the studio he established in Cali. They warn applicant A that he would be at risk of death if he returned to Colombia.
·     Translations of transcripts of what appear to be messages from someone claiming to have forced applicant A to close his radio station, warning him to stop spreading his ideology and threatening to kill him.
Extracts from a number of reports on the situation in Colombia were also provided, including:
·     A July 2018 report which suggests that the Calima Bloc no longer operated but had been replaced by illegal groups operating in areas they once controlled.
·     An Amnesty International report which notes that several thousand paramilitaries had been demobilised since 2003, but the process had disregarded fundamental principles on the rights of victims and the impunity of human rights abusers.
·     Several reports which note a surge of violence in the countryside despite the historic peace deal of 2016.
·     Reports on clashes between demonstrators and police during a national strike in June 2021 during which protestors put up blockades on a number of roads and security forces responded with violence.
·     Reports on the murder of a 14 year old indigenous activist in 2022, threats against child environmentalists in 2021 and the vulnerability of children in areas where armed groups operate, including the possibility of being recruited.
Delegate’s decision
The delegate refused applicant B’s application. In reaching this decision he reviewed evidence regarding threats and attacks on the children of activists from Amnesty International, the Guardian and two Colombian publications. She observed that the reports suggested that targeting of children of political activists was rare and that even if she accepted applicant A’s claims regarding the harm he feared, she was not satisfied that applicant B faced a real chance of experiencing serious or significant harm as a result.
SUBMISSIONS TO THE TRIBUNAL
Submission provided on 7 February 2023
On 7 February 2023 the Tribunal received a joint submission from the applicants. It states that they continue to be at risk of harm as a result of applicant A’s political views and activities. Applicant A noted that Mr Petro had been elected President in 2022 but said that this was only the first step towards real peace and observed that the country remained divided and the powers that had previously dominated Colombia might not allow radical change. He said that he would be at risk of harm because he supported a left wing ideology and he had been working with social leaders, activists and politicians and through community radio stations. He added that anyone who supported Humana Colombia was at risk of being violently attacked.
In support of these claims, applicant A provided a number of human rights and medical reports regarding continuing violence and human rights abuses in Colombia, including:
·     A report from the UN Human Rights Office dated 26 July 2022 which notes that there was a dramatic fall in the level of violence following the 2016 peace accord between the government and FARC. However, activities of non-state armed groups and criminal organisations involved in drug trafficking and illegal mining over the two years preceding the report had resulted in a rising level of violence in rural areas which has impacted mostly on women and children, indigenous people, people of African descent, community leaders and defenders of human rights. It notes that reports suggest 22 human rights defenders were killed in the first six months of 2022.
·     An extract from the Amnesty International Report on Colombia for 2021 which reports on a number of abuses including a report that three men were detained by armed civilians in Cali and then held for 24 hours by police in May.
·     An extract from a Human Rights Watch report for 2020 which states that civilians in various parts of the country faced threats and suffered a range of human rights abuses at the hands of left wing and paramilitary successor groups. It notes that government abuses against the Patriotic Union and recruitment of children by FARC had been a widespread practice.
·     News reports form the City Paper Bogota and Telesurenglish.
Hearing held on 15 February 2023

Applicant A confirmed that he had worked for several radio stations in Cali. He initially worked on the technical side but after two or three years he became a [Occupation 1]. He also [did other work]. During his broadcasts he spoke out in favour of left wing ideals and groups such as M-19 and criticised the government of the day. Later he spoke in support of POLO. He began to receive threats, sometimes from callers [and] sometimes in the form of messages left at the stations where he worked. Numerous other [Occupation 1] expressed similar views and many of them were killed.
In about 2002 a condolence booklet was delivered to his home. He took this as a threat. He moved to his father’s house outside Cali and remained there for about seven or eight months. He did not speak on the radio again until after the [May] 2006 elections. However, he continued to actively support left wing views by speaking to small groups of people who gathered in parks and elsewhere. Initially he gathered friends of his late brother and their children, but over time the meetings involved people from other areas and he travelled around to speak to them. I asked if this was part of his work for POLO. He said that the ideas were the same and from 1997 he had always been linked with people who identified with POLO’s ideology. He continued to receive threats from people who told him that if he did not stop expressing his views, he and everyone else involved in these groups would be killed. A friend who was involved in the meetings or similar activities was also threatened.
Applicant A said that he had supported POLO from 2002 because he had always identified with the ideals the party espoused. During the 2006 Presidential election campaign he went to meetings or gatherings and encouraged others to attend. He gave out information about the party’s plans and program, for example by distributing pamphlets. He was one of many people who were engaged in these activities. When asked if he had experienced any problems while campaigning for POLO, he said that people often threw away the materials he was distributing and sometimes threatened to assault him. These problems were often caused by people who were paid by the ruling party.
Applicant A said that he formally joined POLO after the 2006 election. Between 2006 and 2009 he arranged and attended party meetings three times a week and encouraged other people to attend. He continued to receive threats. He kept moving from place to place to avoid problems. Many people involved in similar activities were killed.
Applicant A supported Mr Petro in the 2010 Presidential election. He was an activist, but he did not hold a position in the party. I noted that he had claimed that members of a paramilitary group attempted to kidnap him during the 2010 campaign. I advised him that while I was aware that violence by right wing groups had continued to be a problem in Colombia at the time, according to a report from the OAS electoral observation mission the level of violence during the election was the lowest in 30 years and it seemed unlikely that a paramilitary group would have attempted to kidnap him in those circumstances. He responded that not all of the attacks carried out by paramilitary groups were reported and other people were also kidnapped from other meetings. The incident occurred when he was at a big POLO outdoor meeting. Some party leaders were addressing the meeting when the attempt occurred. His assailants did not attack the leaders because they had bodyguards. He was rescued by other party members.
I noted that applicant A had provided a reference from POLO which stated that he had been a supporter since 2005 but did not suggest that he ever held a prominent position in the party or that he had experienced problems because of his involvement. He said that the signatory of the letters no longer belonged to POLO. I noted that POLO had split after the 2010 election. Applicant A confirmed that this was correct and said that he had followed Mr Petro to his new party Colombia Humana. He added that he could have obtained a reference from Colombia Humana but got one from POLO because he had always identified with the left.
I noted that the report from the Ombudsman in [Town 1] stated that applicant A had reported being threatened because of his support for POLO in 2000, 2006, 2010 and 2014 and observed that it appeared that POLO did not exist in 2000. He said that he had been threatened before POLO was formed.
Applicant A said that he had come to Australia to study because he feared for his life in Colombia. I asked why he had not sought protection when he first arrived. He said that he wanted to study and return to Colombia, and he was optimistic that this would be possible. However, continuing problems caused him to make a different decision later.
I noted that applicant A had claimed that his nephew was murdered about a year after he arrived in Australia by men who wanted to harm him (applicant A). I observed that it seemed unlikely that someone would have killed his nephew because they were interested in him a year after he left Colombia. He said that witnesses had seen people following his nephew and in Colombia family members of political activists were often targeted. He added that he had expressed radical ideas in his radio programs in Colombia and Australia.
Applicant A said that he had spoken out and expressed radical views on his radio programs in Colombia and Australia. Programs he made in Australia were broadcast in Colombia and he continued to receive threats because of this. He first broadcast on [Station 1], but from about 2016 he had a program on [Station 3] which was also broadcast [in] Colombia [from] 2016. He received threats at various times in Australia, but they had increased in 2017 because his broadcasts were more frequent. I observed that it appeared that his program had been broadcast on a music network in Colombia. He said that he spoke about his left wing ideas and the station also dealt with politics and sport. I advised him that it was my understanding the many people in Colombia supported the left. He agreed that this was correct and added that many of them had been killed.
Applicant A said that he had also been involved in a solidarity group in Australia which supported left wing ideas and left wing groups in Colombia.
Applicant A said that he had returned to Colombia in 2014 to support a ‘blank vote’ in the second round of the Presidential election. The POLO candidate and other progressive candidates had failed to reach the second round leaving only two conservative candidates. Under Colombian law if a majority of voters return a blank ballot in the second round another election contested by all candidates should be held. This did not occur in 2014. While in Colombia in 2014 he met with local leaders [and] assured them he would continue to defend and promote the ideals of the left on his radio programs. He had a lot of followers because of his radio program so he was able to meet with groups of young people and promoted the blank vote in suburban areas. Because of this he received a number of threatening calls at his sister’s house. He moved to the home of another sister, bought a ticket and returned to Australia as quickly as possible.
I noted that despite these developments, applicant A had not applied for protection when he returned to Australia. He said that his wife had a student visa at that time, but when her application to renew that visa was refused, they applied for protection. I noted that he had returned from Colombia in August 2014 but he had not applied for protection until May 2016. I advised him that his failure to apply for protection despite claiming that he fled because he feared for his life caused me to doubt that he feared harm in Colombia at that time.
Applicant A and C said that they had not been aware of the possibility of seeking protection. I advised them that I had great difficulty accepting this as refugee issues were widely discussed in Australia, including on community radio stations such as [Station 3]. After some discussion they conceded that they had been aware of the possibility of seeking protection. Applicant A said that he and his family had not wanted to ask for things like protection. They preferred to rely on his wife’s studies to allow them to remain in Australia and hoped to obtain residency through other means, but when that became impossible, they applied for protection.
I noted that applicant A had provided a number of documents which he claimed were threats from people in Colombia who wished to harm him. I observed that they would have been produced by anyone with a computer and printer and advised him that if I concluded that his claims lacked credibility, I might also conclude that these documents were not genuine. He maintained that his claims were true and that the documents were genuine.
Applicant A said that in about 2018 or 2019 he established a studio/radio station in Colombia called [Station 2] to defend left wing ideals. It was a commercial station located [in] Cali and earned money by selling advertisements. He broadcast his views on the radio. He also employed [students]. Because he was well-known paramilitary groups such as the Calima Bloc and the Black Eagles began to harass his employees. They sent notes and audio messages threatening to kill them if they continued to work with him. On one occasion some members of one group went to the studio and threatened them in person. Because of this his employees left: the first one in 2020 and the last in 2022. He closed the studio and sold the equipment and lost money he had invested. He complained to the authorities, but some of them worked with the paramilitary groups which were threatening him, so nothing was done.
I noted that the candidate that applicant A had supported for many years was now the President. He said that since Mr Petro had gained power, the killing of people who were social leaders had increased and anyone who supported Mr Petro was at risk of harm.
I advised him that I had yet to reach a conclusion regarding whether I accepted the claims that he had made, but I had significant doubts about some of them. I also advised him that it was not my understanding that supporters of the current President or of POLO or Colombia Humana were generally at risk of harm because of this. Applicant A maintained that his claims were true and that he was at risk of harm in Colombia.
At hearing applicant A provided a report from WOLA entitled Social leaders and ethnic communities hard hit by Colombian violence dated 21 November 2022. I advised him that I would review the evidence thoroughly after the hearing, but it appeared that most of the reports related to problems facing community leaders in rural areas where paramilitary groups still had a significant presence. Applicant A said that his mother’s house was in a rural area outside Cali and he would have to live there if he returned to Colombia. I observed that there did not appear to be any reason why he would have to live in a rural area. I suggested that he could live in Cali or Bogota and express his views without facing a real chance of experiencing harm. He said that there were risks in all parts of the country and added that party leaders had protection but people like him were at risk.
On 15 March 2023 applicant A provided a statement in which he said that his brother’s death continued to impact on his life in Colombia because he continued to defend the ideals and political thoughts he espoused. He reviewed the situation following his brother’s death and peace agreement with M-19 reached in the 1990s. He said that he had been actively promoting left wing views during public activities in the rural areas and marginal neighbourhoods in urban areas, mostly in support of the candidates of the Polo. He continued this work through the radio from Australia. He observed that the problems which confronted Colombia had a long history and would continue to cause problems for many years to come. He notes the continuing existence of armed groups and the continuing violence in the country and observes that the problems which confront Colombia had a long history and would continue to cause problems for many years to come.
Applicant A also provided
· A letter from [Station 3] dated 13 March 2023 which states that he had been producing and presenting a [program] called [Station 2] for the previous four years. The program plays a variety of Afro-Caribbean music known as salsa. The lyrics of the songs reflect social realities and encourage listeners to express their political, social and cultural ideologies. In addition, applicant A continued to promote left wing ideologies on the internet for the Colombian community.
· A reference from [name] which states that applicant A had worked for several radio stations in Cali including [deleted] and others from 1998 to 2010 and that due to the content of his programs he received constant threats against his life.
A second hearing was held on 5 April 2023 to discuss issues relating to applicant B which was not fully addressed at the first hearing. I noted that applicant A had stated previously that he feared his son would be harmed because of his involvement in politics, but he had also stated in submissions to the Department that he feared for his son because young people in Colombia lacked the opportunity to develop freely and corruption and inequality meant that many took up a life of crime or a decision to leave. I advised him that while I understood that this is true for some, he appeared to be from a well-educated, middle-class family and it was not my understanding that children with this background were likely to experience such problems. Applicant A said that the violence in Colombia impacted on everyone at all levels of society, not just people from marginal areas or communities, his his main fears mostly related to the fact his family was included in the threats he received.
I advised applicant A that I had read the documents provided at the previous hearing and it while it recorded the murder of a journalist in Cordoba, the other reports appeared to relate to abuses against indigenous and Afro-Colombian leaders in rural areas, not people with his background. I asked him to draw my attention to any reports which he believed were relevant to his case. He said that he had provided other evidence which covered people in his circumstances and added that he had indigenous heritage. I advised him that it was my understanding that many people in Latin America had some indigenous heritage, but he did not appear to be an indigenous leader from a rural area. He said that he would be at risk when he passed through rural areas because he would be known to people there.
Applicant A said that he was concerned that there had been problems with the previous interpreter, and he was concerned that this might have resulted in his evidence being misunderstood. I observed that he, his wife and his representative were all bi-lingual and advised him that I would be happy to consider any submission problems caused by inadequacies in the interpreting during the first hearing. No submissions on that issue have been received.
Applicant A noted that I had expressed doubts about his claim that armed men had attempted to kidnap him in 2010. He said that he had been targeted because he had built a name for himself in Colombia. Every time his program was aired there were threats and whenever he went into rural areas he was at risk of harm. I advised him that I accepted that he held leftist views and had expressed these views on radio. However, as pointed out during the first hearing the evidence does not suggest people who expressed these views were generally at risk of harm during the 2010 election. Furthermore, it appeared that the radio programs in which he had been involved were mainly musical in nature and political comment was secondary. I also noted that the party he supported was currently in power in Colombia. He said that music was a means to get to the communities in rural areas and added that much of the music had a political message.
Following the hearing, applicant A provided:
·     An al Jazeera report dated 23 January 2023 which states that the Colombian human rights Ombudsman had reported that more than 200 social leaders had been killed in 2022, a substantial increase over previous years. It states that these deaths occurred as armed groups vying for control of drug trafficking routes increased their attacks.
·     Human Rights Watch advice from 1 April 2023 which states that 33 social leaders had been murdered in 2023 with the highest numbers in including eight in Cauca and Valle del Cauca [Santiago de Cali is the capital of Cauca department].
·     An April 2023 report on the murder of a community leader from Narino who had relocated to Cali after being threatened in his local area.
·     Translation of the lyrics of a song by Ruben Blades entitled País Portátil or Portable Country.
FINDINGS OF FACT: APPLICANT A
I accept that applicant A holds left wing views and that he has supported left wing candidates and parties in elections in Colombia. I accept that his brother was murdered in 1988 because of his left wing political views or activities. I accept that he studied [a subject] in Colombia and that he worked for a number of radio stations in Cali at some time between about 1998 and 2010 and that he has worked as a volunteer at community radio stations in Australia. I accept that he has expressed his political views on air in Colombia and Australia. I accept that he has indigenous forebears. However, for the following reasons I did not find him to be an entirely reliable witness and I do not accept that he has provided an honest or accurate account of his involvement with radio or politics or the threats and problems he has faced because of this in Colombia or Australia.
Activities in Colombia
Applicant A claims he left Colombia in 2010 because he feared for his life. However, he did not apply for protection until 2016. If he had been repeatedly threatened and genuinely believed his life was in danger when he left in 2010, I believe he would have sought protection as soon possible after his arrival. While I might perhaps have accepted that he initially delayed this because he hoped the situation would improve when he arrived in 2010, this does not explain his failure to apply after his nephew died a year later in circumstances which he believed indicated that he was still at risk of harm in Colombia. And while I accept that someone with a genuine fear of harm might nevertheless risk visiting a close family member who was dying as applicant A claims to have done in 2012, I find it highly unlikely that he would have returned to Colombia in 2014 and engaged in political activities despite continuing to receive threats while living in Australia.
Most significantly, I find the claim that he waited nearly two years after leaving Colombia for a second time in 2014 because he feared for his life far-fetched and implausible. When asked about this delay at the hearing he first said that he had not been aware of the possibility of seeking protection but when I expressed doubt about this claim conceded that it was not correct. He then said that he did not want to ask for assistance and preferred to remain in Australia as a dependant on his wife’s student visa and perhaps seek another means of gaining residency. I find the claim that someone who believed that their life was in danger would decide to remain in Australia on a student visa which did not guarantee a long term stay and which involved paying significant fees implausible and I do not accept that applicant A delayed applying for protection for that reason. I believe that he sought protection in 2016 because he wished to remain in Australia for reasons unrelated to his claimed fear of harm in Colombia.

In my view, this conclusion is supported by other problems with his evidence.
In the first place, I found significant parts of applicant A’s evidence regarding his radio work and political activities in Colombia unpersuasive.
While applicant A has consistently stated that he worked part time in radio, he has also suggested that radio work was his first priority and dominated his time from the late 1990s until his departure in 2010. This is at odds with his evidence at hearing when he said that he completely ceased speaking on radio from 2002 until 2006 and his evidence when interviewed by the delegate in December 2022 when he said that he had worked on one [program] during his final three years in Colombia. He claims that he was repeatedly threatened by right-wing paramilitary groups because of the political content of his programs. However, it appears that his programs were primarily musical in nature and included commentary on sports and other matters as well as politics. While I accept that applicant A expressed his views on politics on radio programs in Colombia from the late 1990s until about 2002 and again between 2006 and his departure in 2010, I believe he has sought to exaggerate the extent of his involvement in radio programs and that he has misrepresented the nature of those programs to bolster his claim for protection.

100. In addition, I found the claim that he organised political activities in areas outside Cali after 2002 lacking in credibility. I have great difficulty reconciling the claim that he stopped working on radio in 2002 and temporarily left his home because he was threatened and feared serious harm with the claim that he began or continued to organise meetings in parks which placed him at significant risk of harm in 2002. And I find the claim that all or most of the people who attended those meetings were associated with his brother who died 14 years earlier implausible.
101. Secondly, I find the claim that members of a paramilitary group sought out applicant A and attempted to kidnap him while he was attending a POLO rally in [Town 1] in June 2010 lacking in credibility. As noted above, independent observers of the June 2010 Presidential elections observed that the level of violence during the 2010 election was the lowest in 30 years and political parties could operate without restrictions or outside interference. Furthermore, according to independent evidence right wing paramilitary groups such as AUC had been demobilised or degenerated into criminal gangs operating mostly in remote areas by 2006. Members of these gangs where mostly interested in maintaining control of these areas in order to carry out their criminal activities. While it is certainly true that many journalists were threatened by armed groups during that period in question, in my view the evidence does not suggest that a relatively low-level POLO supporter with a relatively limited presence on radio programs would be targeted in this way. I also find it extremely unlikely that a right wing paramilitary group or anyone else would attempt to abduct someone attending a POLO party rally in full view of nearby supporters in the manner claimed.
102. Thirdly, I find the claim that applicant A was threatened by right wing paramilitary groups when he returned to Colombia in 2014 lacking in credibility. At the hearing he said that he was threatened because he had a lot of followers because of his radio program which enabled him to meet with local leaders and promote the blank vote to groups of young people. As discussed above, I do not accept that applicant A was a well-known journalist or political figure when he left Colombia in 2010. According to his evidence his only involvement on radio between 2010 and 2014 was a program on [Station 1], a small community radio in Sydney. I do not accept that he would have gained a large following which enabled him to attract significant numbers of people to meetings or rallies when he visited Colombia in 2014 as a result of his radio program in Sydney. I also note that the second round of voting in 2014 was held on 15 June 2014, two weeks after he arrived in Colombia, which also suggests that his involvement in the campaign for a blank vote was limited at most. Finally, his evidence regarding the threats he claimed caused him to flee was unpersuasive. According to the statement dated May 2016, paramilitary groups called his sister’s house three times but only spoke and made threats on one occasion. At the hearing he claimed that he received a number of threatening calls while staying with his sister. I do not accept that applicant A left Colombia in 2014 because he had been threatened by a member of a right wing paramilitary group or anyone else.
103. Finally, I have considered the claim that applicant A’s nephew was killed about a year after his arrival in Australia by people who wished to harm him (applicant A). I accept that his nephew died in a motorcycle accident. However, even if I ignore the problems set out above, the claim that applicant A’s nephew’s death was related to his political views or activities is speculation at most. I find the claim that members of right wing paramilitary groups would have sought to threaten applicant A by chasing his nephew while he was riding a motorcycle a year after he left Colombia far-fetched and implausible. I do not accept this occurred. I believe that applicant A sought to misrepresent the circumstances of his nephew’s death to support his claim for protection.
104. In reaching the conclusions set out below I have considered the supporting documents provided by applicant A relating to his activities in Colombia:
·     Two undated references from POLO. I have some concerns about the second letter as it appears to have been obtained after applicant A and POLO split and applicant A joined a different party. In any event, these letters do little more than confirm that he was a member or supporter of POLO, which I accept.
·     Two undated references from [Mr A] which state that applicant A worked in radio from 1998 to 2010. This does not sit well with his evidence that he ceased to speak on radio between 2002 and 2006. In any event, neither provides any information on the size of his audience or following. The first provides no information on problems he faced. The second states that he received constant threats against his life because of the contents of his programs but provides no further details. As discussed above, I found significant portions of applicant A’s evidence regarding the problems he faced in Colombia lacking in credibility. The letters from [Mr A] do not overcome these concerns. Beyond confirming that applicant A worked in radio in Colombia, I consider that limited weight can be placed on this evidence.
·     A report from the municipality of [Town 1] which states that applicant A had reported receiving threats from the Calima paramilitary group in the rural area in [Town 1] in 2000, 2006, 2010 and 2014. As discussed above, after careful consideration of applicant A’s claims and independent information regarding the situation in Colombia during the period in question, I do not accept that he was repeatedly threatened by members of right wing paramilitary groups. Furthermore, as noted during the hearing, POLO did not exist in 2000 and applicant A left the party when it split in 2011. And as discussed below, I found applicant A’s evidence regarding the threats he received in 2014 lacking in credibility. As I pointed out at the hearing, this document could have been manufactured by anyone with a computer and printer. I believe that this document was manufactured by applicant A or on his instructions and I have given it no weight.
·     An undated death threat from the Black Eagles/Calima Bloc. This document could also have been manufactured by anyone on a computer and in light of my findings regarding applicant A’s credibility I do not accept that it is a genuine document.
Conclusions
105. It is clear that many journalists in Colombia have been threatened by right wing paramilitary groups and the criminal remnants of these groups and it is possible that the radio stations on which applicant A worked received threats from right wing groups at some time during the period he worked or volunteered on radio programs in Colombia. It is also possible that he faced verbal insults and threats from members of opposing parties when handing out POLO materials during election campaigns. However, after considering all of the evidence, I believe that he has exaggerated and misrepresented the extent of his political activities and his presence on radio in Colombia prior to his departure in 2010. I do not accept that he had a significant following in Colombia when he left in 2010 or when he returned in 2014. I do not accept that he received repeated death threats from right wing paramilitary groups or anyone else prior to his departure from Colombia or that he left Colombia in 2010 or 2014 because he believed he was at risk of being killed or seriously harmed if he remained. I believe that he made these claims in order to support his application for protection so that he and his family could remain in Australia.
Activities in Australia
106. I accept that applicant A has been involved with community radio in Sydney since May 2012, first broadcasting on [Station 1] and from April 2017[6] on [Station 3]. I accept that he expressed left wing views, interviewed at least one left wing political figure from Colombia, spoke against human rights abuses and criticised the government which was in power before 2022. However, I do not accept that right wing paramilitary groups in Colombia or the broader community in Cali or elsewhere in Colombia would have been aware of these programs during the period that they were only broadcast in Australia or that they would be so concerned or incensed by commentary heard only by a relatively small number of people in Australia that they made threats against him. I do not accept that he was threatened by right wing paramilitary groups or anyone else because of the radio programs he broadcast in Australia.
[6] At the hearing applicant A said that he began to work on [Station 3] in 2016. I believe that the reference is more likely to be correct and that applicant A may have been confused due to the passage of time. In any event, the precise date is not important.
107. I accept that applicant A’s [Station 3] program was broadcast online from about 2015 and on one or more stations in Cali from about 2017. However, I found his evidence regarding the nature and impact of that program unpersuasive.
108. It is clear from the evidence that the program which applicant A broadcast on [Station 3] was primarily musical and the political content was secondary. As discussed above, I do not accept that he was a well-known political figure or that he had a large following when he left Colombia in 2010. During the hearing he suggested that the views he expressed were particularly radical. However, according to his evidence he has been a long time supporter of parties such as POLO and Colombia Humana and the evidence does not suggest that the views he expressed from 2015 onwards differed from those expressed by other supporters of these parties or by candidates such as Mr Petro or that similar views were not expressed by journalists and others in the media. In these circumstances and in light of the fact that his [Station 3] program was only [few] hours long and broadcast weekly, albeit on more than one radio station in Colombia, I do not accept that applicant A would have gained a large following or have been viewed as a significant political figure because this program was broadcast online or on radio stations in Colombia.
109. I found applicant A’s evidence regarding the radio station/studio he claims to have established in Cali in about 2018 contradictory and unpersuasive.
110. In the submission dated 16 February 2022 he said that the studio was set up on a not-for profit basis and that it closed in 2019. At the hearing he said that he established the studio to defend left wing views but also described it as a commercial enterprise which earned an income by selling advertising and said that it closed sometime between 2020 and 2022. I find it highly unlikely that applicant A would have invested what appears to have been a significant amount of money in a station primarily so that he could air his left wing views, particularly if his views already had a significant audience as a result of his online and radio broadcasts as he claims. As discussed above, I do not accept that he was a significant political figure with a large following in Cali prior to leaving in 2010 or as a result of the radio programs he made while living in Australia after 2015 or 2017 and I find the claim that his employees were threatened primarily because of their association with him far-fetched and implausible. For the purposes of this decision, I accept that he established a radio studio or station of some kind in Cali in about 2018 and that, as with his [Station 3] program, it broadcast left wing views similar to those held by other supporters of Mr Petro. However, I do not accept that his employees were targeted because of his political profile or reputation.
111. I note that while applicant A has provided references confirming his involvement with radio stations in Cali prior to his departure in 2010, no references from the stations which broadcast his programs after 2017 have been provided. If he had a significant political profile and had been the victim of numerous death threats, I believe he could and would have provided independent evidence of this. While I would not have rejected his claims for this reason alone, I find it a further indication that he has not provided an accurate account of the problems he faced because of his programs which were also broadcast on stations based in Cali in Colombia.
112. In any event, even if I accept that applicant A became relatively well-known in Colombia after he began to broadcast programs made in Australia in 2015 or 2017 (which I do not), I find the claim that he received multiple threats from right wing paramilitary groups because of this implausible. According to the country information set out above, by 2017, right wing paramilitary groups had been demobilised or had degenerated into criminal gangs. While these criminal gangs continued to commit violent acts, they had little or no interest in political ideology. They targeted people viewed as posing obstacles to their criminal activities, not because they held left wing political opinions. The evidence also indicates that most of this violence targeted community leaders, government officials and people of indigenous and Afro-Colombian ethnicity in more remote areas where these groups operate. While applicant A may have criticised right wing groups, there is nothing in the evidence before me which suggests that his programs would have been viewed as posing a threat to the criminal gangs formed by former members of these groups such that they would have made repeated threats to kill him.
113. Applicant A has consistently claimed that he was threatened by right wing paramilitary groups such as the Calima Bloc or Black Eagles. Nevertheless, I have considered the possibility that other right wing groups or individuals may have been behind the threats made against him. However, while it appears that Colombia is politically polarised between the right wing and conservative parties which have dominated the country for many years and left wing parties such as those supported by the applicant, none of the evidence before me suggests that someone who broadcast programs of the nature and frequency with which applicant A’s programs were broadcast would have been of adverse interest to the governments in power prior to 2022 or to anyone else in Colombia such that repeated threats would have been sent to him or to the stations which broadcast his programs in Colombia during the time he has resided in Australia.
114. I accept that applicant A has been involved with a solidarity group called [Group 1] while living in Australia. He has not claimed that he received threats as a result of his involvement with this group. Nevertheless, for the sake of completeness, I have considered this possibility. However, there is nothing in the evidence before me which suggests that right wing paramilitary groups or anyone else in Colombia would have threatened applicant A or anyone else as a result of their involvement in a left wing solidarity group based in Australia. I have also considered the possibility that applicant A’s radio broadcasts and his involvement with this group would have raised his profile such that he would have been threatened by right wing groups in Colombia. However, as discussed above according to the evidence, by 2015 successors of the right wing paramilitary groups targeted people they viewed as a threat to their criminal activities. There is nothing in the evidence before me which suggests that someone who belonged to a solidarity group such as [Group 1] in Australia and broadcast occasional programs which supported left wing views and candidates into Colombia would have been of adverse interest to anyone in Colombia such that they would have been repeatedly threatened by right wing groups or elements of any kind.
115. In reaching the conclusions set out below I have considered the supporting documents provided by applicant A relating to his activities in Australia:
·     The references from [Station 1], [Station 3] and [Group 1] which confirm that he has been involved in community radio in Australia and that he has spoken about abuses of past governments and in support of human rights and left wing ideals, all of which I accept.
·     A letter from Mr [B] which confirms that applicant A interviewed him on his [Station 3] program, that their discussion mostly revolved around the demonstrations in Colombia in April 2021 and that applicant A was involved in democratic work promoting and defending human rights in Colombia, all of which I accept. However, it provides no further details on the nature of his radio programs or when they are broadcast in Colombia and does not mention any threats against him.
·     A transcript of applicant A’s interview with Mr [B]. It confirms the program was being broadcast online and on a radio station in Cali and that he was strongly critical of the government in power at that time, both of which I accept. However, there appears to be only one mention of right wing paramilitary groups.
·     Translations of transcripts of what appear to be messages sent to applicant A regarding the threats received by the staff at the studio he established in Cali and of what appear to be transcripts of messages from someone warning him to stop spreading his ideology and threatening to kill him. I accept that he has audio recordings relating to these transcripts. As discussed above, I find the claim that he was threatened by right wing paramilitary groups while living in Australia because he broadcast left wing views on his radio programs in Cali and had a large following because of this far-fetched and implausible and I do not accept this occurred. However, it is a relatively simple matter to arrange for these messages to be sent by [social media] or some other method and I believe that this is what has occurred. I do not accept that these transcripts relate to genuine threats made against applicant A as a result of his radio programs or his reputation in Colombia.
Conclusions
116. I accept that applicant A has been involved in community radio in Australia. I accept that some of his programs have been broadcast online and on radio stations in Colombia after about 2015. I accept that while they are mostly music programs, applicant A has also expressed left wing political opinions supportive of POLO, Colombia Humana and President Petro. However, I do not accept that he is or ever was a well-known political figure with a large following in Colombia because of his radio programs or that he has been threatened by right wing paramilitary groups or anyone else for any reason while residing in Australia.

Consideration of Applicant A’s claims and evidence
117. For the reasons set out above, I do not accept that applicant A left Colombia in 2010 or 2014 because he had been threatened by right wing paramilitary groups and feared for his safety in Colombia. Furthermore, while his programs may have had a reasonably large audience because of their musical content, I do not accept that he has or ever had a significant profile as a political commentator or critic of right wing groups in Colombia. Finally, I do not accept that he was threatened by right wing paramilitary groups or anyone else while residing in Australia because he had expressed left wing views or criticised right wing paramilitary groups on radio programs which were broadcast in Australia and Colombia or because of his involvement with a solidarity group in Australia. I believe that he made these claims in order to support his application for protection.
118. I accept that applicant A holds left wing views and that he has expressed those views in his radio programs in Colombia. I also accept that he will continue to express his left wing views if he returns to Colombia, possibly on radio programs similar to those he currently produces in Australia.
119. As discussed above, there has been a significant change in Colombia since applicant A first applied for protection in 2016. The left wing candidate supported by applicant A won the Presidency in 2022 and left wing parties also have a majority in both houses of congress. This strongly suggests that people who hold left wing views would be better able to express these views without experiencing problems and better able to obtain protection should the need arise than in the past. That said, violence and human rights abuses, mostly committed by armed illegal groups, continue to be a significant problem in Colombia and some groups and individuals remain at risk of harm despite the change in government. However, for the reasons set out below I am not satisfied that applicant A faces a real chance of experiencing serious or significant harm because of his political views or his work on radio if he returns to Colombia in the reasonably foreseeable future.
120. Applicant A has consistently claimed that he is at risk of harm from right wing paramilitary groups associated with the AUC such as the Calima Bloc. As set out in detail in the country information above, since the demobilisation of AUC groups 15 or more years ago the successors to these right wing groups operate mainly as criminal gangs in rural areas where they continue to target people seen as an impediment to them continuing or expanding their criminal activities. While they also appear to have a presence in parts of some cities and some capacity to pursue people living in some urban areas, the evidence does not suggest that they have any interest in pursuing someone merely because they hold left wing views or because they are critical of armed illegal groups in a general manner unlikely to impact on their ability to continue their criminal activities. I am not satisfied that applicant A faces a real chance of suffering serious or significant harm at the hands of right wing paramilitary groups if he returns to Colombia now or in the reasonably foreseeable future.
121. In reaching this conclusion, I have considered Applicant A’s claim that he would reside in [Town 1] where his parents now reside and where he claims paramilitary groups continue to operate. It is unclear whether armed illegal groups have a presence in [Town 1]. In any event, applicant A lived, studied and worked in Cali for many years prior to coming to Australia in 2010 and I do not accept that he would need or choose to reside in [Town 1] with his family on return to Colombia if it was unsafe to do so.
122. While applicant A’s claims relate to right-wing paramilitary groups, I have also considered the possibility that views which he might express on radio or elsewhere would place him at risk of harm from other groups or individuals if he returned to Colombia.
123. While it appears that Colombia is politically polarised between right and left, there is nothing in the evidence before me which suggests that supporters of conservative or right wing parties would seek to harm someone merely because they hold non-violent left wing views and support the current government. Nor does the available evidence suggest to me that journalists who support the current government are at risk of harm from these groups merely for expressing their support for the President or the left wing views he espouses.
124. According to the evidence, in addition to those whose work might be seen as exposing or impeding the criminal activities of illegal armed groups, journalists who might be at risk of harm because of their work include those who expose corruption by local authorities or reveal problems relating to issues such as land restitution. While applicant A has broadcast music programs which include some political comment, there is no suggestion that he has or would engage in the kind of investigative journalism that would expose corruption or problems of these kinds in regional areas where this violence appears to occur.
Conclusions
125. After considering all of the relevant evidence I am not satisfied that he faces a real chance of facing serious or significant harm for any reason associated with his political opinion or radio programs if he returns to Colombia now or in the reasonably foreseeable future. As there is no suggestion that he fears or would be at risk of harm for any other reason, I am not satisfied that he faces a real chance of experiencing serious or significant harm for any reason if he returns to Colombia now or in the reasonably foreseeable future.
126. I am not satisfied that applicant A has a well-founded fear of persecution for any of the reasons in s 5J(1) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Colombia, there is a real risk that he will suffer significant harm.
127. Applicant C was included in applicant A’s application as a member of his family unit. However, during the hearing it was suggested that she would be at risk of harm as a result of the harm which he would likely face on return to Colombia. As I do not accept that applicant A faces a real chance of experiencing serious or significant harm on return to Colombia for any reason, it follows that I do not accept that applicant C faces a real chance of experiencing serious or significant harm on return to Colombia as a result of her association with applicant A.
128. I am not satisfied that applicant C has a well-founded fear of persecution for any of the reasons in s 5J(1) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Colombia, there is a real risk that she will suffer significant harm.

For the reasons given above I am not satisfied that either applicant A or applicant C is a person in respect of whom Australia has protection obligations. Therefore, they do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
Consideration of Applicant B’s claims and evidence

130. It has been submitted that applicant B would be at risk of harm if he returned to Colombia because of his association with applicant A. As I do not accept that applicant A faces a real chance of experiencing serious or significant harm on return to Colombia for any reason, it follows that I do not accept that applicant B faces a real chance of experiencing serious or significant harm on return to Colombia as a result of his association with applicant A.
131. It has also been submitted that applicant B would be at risk of harm on return to Colombia because children are amongst those targeted by illegal armed groups. It is certainly true that children have been amongst the victims of abuse in areas where these groups operate, including displacement of their community, targeting of young activists and forced recruitment. However, applicant B is not a young activist from an area where illegal armed groups generally operate and have engaged in these practices. He is the [age]-year old child of educated middle-class parents from the city of Cali. There is nothing in the evidence before me which suggests that there is a real chance that he would face serious or significant harm from an illegal armed group for any reason if he returned to Colombia in the reasonably foreseeable future.
132. Finally, it has been submitted that applicant B might face problems in future because of issues such as corruption and inequality in Colombia. While I acknowledge that these issues continue to present problems for many in Colombia, there is nothing in the evidence before me which suggests that applicant B faces a real chance of suffering serious or significant harm on return to Colombia because of problems related to corruption or inequality.
Conclusions
133. After considering all of the relevant evidence I am not satisfied that applicant B faces a real chance of experiencing serious or significant harm for any reason if he returns to Colombia now or in the reasonably foreseeable future. It follows that I am not satisfied that he has a well-founded fear of persecution for any of the reasons in s 5J(1) and therefore not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Colombia, there is a real risk that he will suffer significant harm.

There is no suggestion that the applicant B satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant B does not satisfy any of the criteria in s 36(2).
Decision

135. The Tribunal affirms the decision not to grant the applicants protection visas.
Roslyn Smidt
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:

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

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

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

[2023] AATA 2500

25 May 2023

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Immigration

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Jurisdiction

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