1721873 (Refugee)

1721873 (Refugee) [2023] AATA 2816 (5 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721873
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Melissa McAdam
DATE:5 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 05 June 2023 at 3:06pm
CATCHWORDS
REFUGEE – protection visa – Colombia – fear of harm from armed revolutionary group – approached by group to include members in work projects – threats against applicant and child and attacks on applicant and ex-partner – father kidnapped in relation to his work and threatened and attacked as a peace campaigner – credibility – inconsistent and sometimes implausible claims and evidence – returns to area where first approach made – no evidence connecting later attacks to group – loss of contact with family – country information – increase in armed and criminal activities – single woman with minor child likely to work in same work sector and come to attention of armed groups or criminal gangs – not convention ground for protection – complementary protection – state protection limited and relocation not available – treaty right to enter and reside in neighbouring countries limited in practice – member of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(aa), 36(2)(c)(i), (2A), (3), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Colombia, applied for the visas on 29 January 2016.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Protection visa application
The first named applicant is the mother of the second named applicant. The first named applicant provided the claims in the Protection visa application, at the Department interview and to the Tribunal. She is mostly referred to from hereon as the applicant.
The following is a summary of the claims and information the applicant provided in the Protection visa application:
a.She was born in Colombia in [Year]. Her son was born in [Year].
b.She is single.
c.She lived in Bogota in Colombia.
d.She worked as [an Occupation 1] in [Work sector 1] in Colombia.
e.She arrived in Australia in December 2015 on a Visitor visa.
f.She has travelled to several other countries, including Australia, as a tourist.
g.In Colombia she was threatened by the Revolutionary Armed Front of Colombia (‘FARC’).
h.In December 2010 she began employment as Project Manager with [Employer] in Bogota, Colombia. It is a Company investigating risks in relation to impacts that may affect the environment by any proposed development by a particular enterprise operating within Colombia.
i.As a Project Manager her function was to present proposals for research to potential customers whose business activities may have an environmental impact. When a contract was achieved, her role was to control, monitor and execute it until its fulfillment. She had [Work duty]. Because of this she had access to all aspects of [Work duties].
j.The FARC started to contact her to propose illicit activities. She refused and had to cancel some major projects to avoid FARC approaches but the harassment increased. The FARC know information about her family, activities and schedules.
k.Her son’s father planned to travel to Australia in December 2015 for the holidays because his girlfriend was studying in Australia. The applicant decided to travel to Australia too because her son would be far away and she would miss him.
l.In November 2015 the applicant lodged an application for a tourist visa and started searching for airfares to Australia.
m.On 23 December 2015 the applicant was anonymously contacted by phone by a man identifying himself as a member of the FARC operating in Bogota. The man told her that FARC was asking her to assist them in their political cause. They wanted her cooperation. They knew she was an influential professional with access to stores and storage spaces. She was requested to help store some FARC merchandise before she travelled overseas. If she refused to help her son would be taken and recruited by FARC when he returned to Colombia.
n.Her son’s father had planned for him and their son to travel to Australia for twenty days. Therefore the applicant also came to Australia and applied for protection in Australia.
o.She knows she may be able to go to a MERCOSUR Treaty country but there is no guarantee about this and the other countries are in conflict with the Colombian government so that they are discriminating against Colombian people.
She included copies of the following written materials with the application:
-Her Colombian passport.
-Her son’s Colombian passport.
-Her son’s Colombian ID card.
-Her son’s Birth Certificate.
-Her Colombian ID Card.
-Her [professional] and career profile page.
-An arbitration document in the Spanish language.
-Media articles about FARC some in English, and more in Spanish.
-A work certificate in Spanish regarding the applicant from [Employer], dated 23 September 2016.
-Her flight booking details.
Statutory Declaration
In or around October 2016 the applicant submitted a further Statutory Declaration. In her Statutory Declaration the applicant explains her previous written statement was prepared by her without the assistance of an interpreter and it contains some inaccuracies. In the Statutory Declaration she sets out the following:
I previously submitted a typed, unsigned statement that accompanied my protection visa application (My Earlier Statement). I prepared My Earlier Statement without the assistance of an interpreter and, as a result, some aspects of that statement are not accurate. At the time I prepared My Earlier Statement, I was provided some guidance by a Spanish speaking Justice of the Peace who I met by chance. I have prepared this statement with the assistance of an interpreter (TIS ID [Number]) and this statement replaces My Earlier Statement.
… I have a diploma in [Subject 1] from [University 1] which I received in [Year] and a diploma in [Subject 2] which I received from [University 2], Bogota in [Year].
I have one son, [the second applicant], who was born on [Date] and is currently [Age] years old.
Before I made arrangements to leave Colombia, I was living with my son and my partner of 5 years in Bogota. I lived with my partner for 2 years.
I am not currently in a relationship.
I was previously in a relationship with my son's father for 1 and a half years which commenced in [Year]. I had been in a relationship with my son's father for 6 months when I found out that he was already married. I then ended our relationship. Twenty days later I found out I was pregnant, because I had health problems with the pregnancy I remained in contact with my son’s father for support.
At the same time I was pregnant my partner’s wife also fell pregnant so my son has a [sibling] who is almost exactly the same age.
My son’s father separated from his wife and in July 2016 he got married again.
I had a relationship with another man (my ex-partner) in Colombia from December 2010 to 2015. That relationship ended in December 2015 before I left Colombia to come to Australia. I never told my partner about my problems with FARC (which I describe below). As a result, my partner did not understand why I needed to leave Colombia and when I told him he should come to Australia with me he refused. I have not been in contact with my ex-partner since December 2015.
I note that in my Application for a protection visa, page 10, question 35 I ticked “no” in response to whether I had been married or in a de-facto relationship. I did so because in Colombia if you are in a de-facto relationship you fill out a legal document saying that you are living with a
person and I did not fill out such a form. I understood the form to be asking if I was in such a relationship where I had filled out a legal document.
I have one sister and [brothers]. One of my brothers lives in [Country 1] and my other [siblings] live in Colombia.
Problems in Colombia
I began working for [Employer] in Bogota, Colombia in December 2010 as a Project Manager. In this role I was in charge of managing projects, for both private and public developments. The projects I worked on included [Project types]. As I describe below, I believe I came to the attention of FARC as a result of my job and my involvement in a specific project I coordinated in 2013.
I have included as Annexure A to my statement a letter in Spanish from my former employer, [Mr A] of [Employer] dated 23 September 2016, together with attached travel reservations for trips I had done for the company. I asked my former boss over email for a reference that explained what my work was with the company and where I travelled for my work, but I did not explain to my former boss that I needed the reference for this statement as I was afraid to mention anything about FARC because it may have exposed him to harm. This letter confirms that:
(a) I was employed by [Employer] from December 2010 - December 2015 as a Project Manager;
(b) that my functions in this role included directing the formation and execution of projects, planning financial strategy, preparing management reports and presenting and promoting new projects;
(c) that as part of my role I worked in various territories across Colombia, including [Town 1] (which I discuss further below). The letter also refers to attached example travel reservations in my name as proof of some of the travel undertaken in my role, which are also at Annexure A to this statement.
In mid-2013, as part of my job, I worked on the negotiation stage of a [Project type] in [Town 1], in [Municipality 1]. The travel reservations provided by my former employer attached at Annexure A include an electronic ticket, in my name, for travel to [Town 1] from Bogota on [Day] June 2013, returning on [Day] June 2013 (flying out of [City 1]). The project was proposed to be a venture with a [company] and I was involved in the negotiation and fundraising stages of the project. I estimate that the project value was around $1,000,000 in Australian dollars. As part of my role, I contacted officials in [Town 1] by phone and by emails and arranged
meetings. I travelled to [Town 1] by plane for 3 days to meet with officials and other people about the proposed project. I was the only representative from my company involved in the project and I travelled to [Town 1] alone.
During my trip to [Town 1], a man I did not know who was dressed informally came up to me while I was in a coffee shop and said words to the effect of:
“You are [the applicant], who works for [Employer]. I want to negotiate with you regarding the work that you are doing. The work will need to include some of our people and there will need to be some financial manipulation for it to be authorised. You have time to think about it, after this, we will meet again."
I did not say anything in response to this man as I was scared and in shock. I understood this man to be from FARC and I understood his comment to be a threat and that I was at risk of being kidnapped or killed as a result of this threat being made. I explain my reasons for this later in this statement. I believe the reason this FARC guerrilla approached me was because, in my role, I was responsible for determining which companies and individuals would act as contractors and would therefore profit from this project. It is my understanding that the individual from FARC who approached me wanted me to place FARC associated people in my projects. I understand that FARC wanted to get involved with these projects to profit from them and possibly also to facilitate money laundering.
I took my flight out of [City 1] (which I drove to from [Town 1]) the day after this man approached me. When I returned to work, my boss asked me what happened. I did not want to go into any detail because this could put others at risk of harm, but I told my boss that I was asked for a “vacuna" and that somebody wanted to enter into negotiations. In Colombia, a reference to a "vacuna” (which means vaccine in English) in this context refers to a demand for an extortion payment or security protection from the FARC guerrillas. By this, my boss understood that I was referring to FARC and he asked me if I was ok. I said I was ok, but that I should not go back to [Town 1]. My boss agreed this was appropriate. I did not return to
[Town 1] after this my company and I stopped working on this project.
I do not know how this man became aware of my involvement in the project or my whereabouts in [Town 1]. I had called people in the municipality about the project, including sending correspondence and attending meetings to see if there was interest in the project. As FARC infiltrates local government, it is possible that someone I contacted within the government
told this man about my involvement in the project.
Other than telling my boss in general terms that we should not proceed with the [Town 1] project, I didn’t tell anyone in my company or my friends or family about this approach from FARC. It is commonly understood in Colombia that if FARC get in touch with you, you should not tell anyone as this will put others at risk. I also consider that the authorities would not have
been able to provide any assistance, as the government and police are corrupt and are infiltrated by FARC.
As I explain below, I left my job abruptly without telling my employer I was leaving, so I have few personal records of matters related to my employment accessible in Australia. As I have few personal records relating to my employment, my migration agent suggested I contact my former employer to obtain a reference confirming my employment at [Employer]. I refer to this reference … above, which is attached as Annexure A to this statement.
Telephone contact from FARC
Since the time I was approached in person by the man from FARC in [Town 1], I have been contacted by telephone or confronted in person by people I understand to be from FARC on a number of occasions. I describe some of these incidents below.
Between 2013 and 2014 I was contacted on my mobile phone on a few occasions by a person I understood to be from FARC. Each time the call showed as a private number. All of these calls were very short calls. I spoke very little on these calls as I knew it was dangerous situation to be contacted by someone from FARC. The first such call I received was about 2 months after my trip to [Town 1]. I received a call on my mobile phone from a private number. The person on the phone said “do you remember me, we saw each other in [Town 1] and I asked you about the project, how is it going?" I understood that this was the same man from FARC who had approached me in [Town 1]. I told him I had not made any decision about the project. He then hung up.
After a period of a couple of months, I received a further call on my mobile from a private number from this same man. He said to me again something to the effect of “how is the negotiation going on the project?" I don’t remember exactly what I said but the project had not started and I think I said something like “no decision had been taken”.
I was contacted on my mobile phone again in about April 2014 by the same person. He said words to the effect of, "Do you remember me from the [Town 1] project, how is it going ?” In response, I said something to the effect of “We have not taken any decisions, it is not going ahead.” In response to this, he said “Do you think this is a game? We will teach you how
to work with us.” I was very scared and understood his comments to be a threat.
After receiving calls from FARC, I changed my mobile phone number. However, even after I changed my phone number, I continued to be contacted by FARC a further 3 or 4 times by the same person from [Town 1]. On each of these calls, I was told there would be consequences
for my decision not to work with them.
I believe that my phone may have been bugged by FARC as they appeared to know every move I made. When I would speak on my phone there appeared to be an echo in the call and on the calls they made to me they appeared to know a lot of details about me.
During 2015, I started looking for another job because I thought this may help the situation. However, as the threats continued even after I said the [Town 1] project was not going ahead, I understood that FARC were after me specifically, regardless of what job I was in because they were angry I had not offered to assist them. I knew that even if I changed my job they would not leave me in peace.
Further contact from FARC
In May 2014, I was walking in a public street when I was approached and pushed very hard by one person and another person grabbed my arm and took my bag. Initially, I thought that I was being robbed. However, the person who took my bag pushed something against me, which I believe was a weapon, and told me "we are not playing games, this is serious.” I understood these individuals to be from FARC because of this threat – and because it was similar to what I had been told over the phone. They then threw my phone on floor and broke it and took my wallet. I did not recognise either of these individuals. I believe that both of these individuals were from FARC and that they took my belongings to try and make it appear to other people passing by like an unplanned robbery.
In July 2015, when I was walking in a shopping centre by myself, I was again robbed by two people. On this occasion, they broke my bag and took my car keys. A security guard at the shopping centre came up to me and asked me if I was ok. I did not recognize these two people and I could not tell if it was the same two people as the previous incident in May 2014, although it is possible it was the same people. After this incident, the following day I was contacted on my mobile phone from a private number. I recognised the voice and I believe this was the same person from [Town 1]. At this time, this person said, 'We know everything about you, where you go, where you are, your family. Be careful, because there are consequences". Because of the timing of this phone call, I believe that the two people who robbed me were from FARC and were acting together with the man from [Town 1].
A few days later, I reported that my bag and money had been stolen to the police in order to get a new set of car keys, bank cards and to claim insurance. I knew that the police could not help me because it was FARC who were responsible and the police are not capable of keeping people safe from FARC. When I made this report to the police, I did not mention anything about FARC or the phone call I had received. The police never got in touch with me after this incident.
I was very scared about the continued and escalating contact from FARC. I was unable to change my phone number again after this time, as the telecommunications company would not permit me to change it again. From July onwards I missed some calls from a private number. I do not know if these were further calls from FARC, but I stopped answering calls from private numbers out of fear it may be FARC calling.
In September 2015, when I was taking my son to school by car someone on a motorbike drove by and smashed my car wing mirror. Later that day, I received a call on my mobile while driving in the car with my son. The call automatically connected as I was in my car. The person on the phone said words to the following effect: "You and your son are sentenced. We have all of you and your son's information. There is no more time to think about it, it would have to be done".
The person then hung up. Although this was a quick call, my son heard what was said on the telephone because it was on speaker. My son is now very afraid of Colombia. I did not report this incident to the police or tell any friends or family, as I understood this to be a threat from FARC.
The last call I received from FARC before coming to Australia was in October 2015. I received this call while I was having dinner with my son. The person on the phone told me it was obvious I was not going to cooperate and because of that they would take something precious to me and that I wouldn't have a son anymore. My understanding is that FARC wanted to punish me
for not assisting them. The person on the phone also told me they had all the details of my house and my son’s school and they knew all of my movements and noted that this was proven by the incident with the motorbike. After this phone call, I cancelled the bus transport that previously had taken my son to and from school. I started picking him up and dropping him off to school myself as I was scared that my son may be kidnapped or harmed by FARC.
Once FARC mentioned that they would harm my son, my level of worry changed and I felt that neither myself or my son were safe in Colombia anymore. I understood that quitting my job would not make the risks I faced from FARC go away. This is because I understood this last threat from FARC to be a sentence. I never went to the police about the contact I received from FARC or the threats I received because a lot of people who work in the police force also work for the FARC army and I was scared the police would notify FARC if I reported it. The police or other authorities in Colombia would not help or believe me unless my son gets killed or kidnapped,
Departure from Colombia in 2015
Around September 2015, my son’s father told me he was planning to come to Australia on holidays to visit his then fiancée who was in Australia studying and that he would like our son as well as my son’s [sibling] to join him. As I have custody over my son, his father needed my permission to come to Australia. My son’s father told me about his planned travel before the
incident when my car mirror was smashed that I refer to above.
In October, I gave my son’s father permission to take my son to Australia so that he could arrange his visa. I gave this permission before I received the last call from FARC in October 2015. My son had a multi-entry tourist visa because his father also planned a side-trip to [Country 2] during this holiday. My son’s father has not returned to Australia since he left in January 2016, including because I understand his fiancée (now wife) left Australia in mid-2016.
After I received the threat to myself and my son in October, I decided that my son and I needed to leave Colombia to be safe. As my son was already travelling to Australia separately with his father, I made a plan to also travel to Australia on my own and to join my son after he had left Colombia. I saw my son's travel to Australia with his father as an opportunity to escape the risks he faced from FARC, because I did not think FARC would be suspicious as he was not leaving with me.
My partner in Colombia was aware of the damage caused to my car and the robbery incidents. However, I never told him that FARC were involved as I did not want to put him in danger also.
When I said I wanted to leave and travel to Australia, my partner asked me several times why I was behaving this way. For my partner’s security and my son’s safety I did not provide him with any explanation and only told him that I was going to live in Australia. I could not risk explaining to him the reason why I needed to leave Colombia and our relationship ended in December
2015.
A few weeks after I received this last call from FARC in October 2015 (that I describe … above), I decided I needed to leave the apartment I rented in Bogota because I feared for my security. I left quickly, which meant I had to leave several things behind including furniture and electronics. I only told my landlord I was leaving after I left the apartment. When I left the
apartment, I moved around and stayed with different relatives as I was scared that FARC would come looking for me. After I left my apartment, I took my son with me to stay for one week with a cousin in Bogota, then for another week with another cousin in [City 2]. I did not tell my family that the real reason I left my apartment was because I feared for my and my son’s security. I told them that my relationship of 5 years had ended, that I would be travelling to Australia and for this reason, the apartment needed to be rented out to someone else. After staying with my cousins, I drove to stay with my grandmother in [a] small town outside Bogota. I told my grandmother that the reason I wanted to stay with her was because my grandfather was very sick and that I wanted to spend time with her. My grandfather was sick and he died during this time, but the real reason I stayed with my grandmother for this time was because I considered I needed to keep moving to be safe from FARC. When I got to my grandmother’s place, I asked my mother if she could organise the things I left at my apartment and if she could take me to the airport. I told my mother I was travelling to Australia for a holiday and that I was taking the opportunity for a holiday because my son was there. I told my mother I had left the apartment because I had just finished a sentimental relationship of 5 years and that I wanted to leave the place we had lived together.
I told my son’s father in November that I would also be travelling to Australia for a holiday. I did not tell my son's father the true reason that I was coming to Australia was to escape the threat my son and I faced from FARC. As I had travelled to Australia for a [holiday] previously and to other locations for leisure and for work, I did not think that my son’s father would think my travel was unusual.
I have not told my son's father about the threats that my son and I face in Colombia as this could also put him in danger. My son’s father works for [details deleted]. As a result of his position and his [profile], I believe my son and I are more exposed to danger and my son’s father is unable to protect my son in the position he is in.
Arrival in Australia
My son travelled to Australia with his father and [sibling] on [date] December 2015. I came to Australia on [date] December 2015. When I arrived, I stayed with a Colombian friend in [Suburb 1]. At this time, my son was staying with his father. I told my son’s father after I arrived that I wanted to stay in Australia for at least a year to learn English and that I wanted our son to stay with me. My son’s father agreed it would be beneficial for my son to live in Australia. My son’s father brought my son to live with me here in Sydney [in] January 2016 so he could return to Colombia.
With the assistance of [Organisation] and another organisation, my son is now attending [Suburb 2] primary school.
In around February or March 2016, I had to leave the house of the Colombian friend I was staying with in [Suburb 1] as she could not continue having me there. My son and I are now in share house accommodation in [Suburb 2].
[Organisation] have provided me with assistance with food, accessing schooling for my son and putting me in contact with relevant service providers as well as accessing funding for me. In August I became a client of [Organisation] which gives me access to psychological services. I would like to utilise the psychological services, but I am still very afraid and scared about the threats I received from FARC. I believe that I need treatment and someone to talk to, but at the moment I am holding everything in and I am trying to be strong for my son.
Problems with FARC since leaving Colombia
On 10 October 2016, I was contacted by some Colombian friends via audio message who told me that my ex-partner was recently admitted into an intensive care unit in Bogota with second and third degree burns and that he is in a coma. These friends are currently in [Country 3] and were passed on this audio recording by some other friends in Colombia. My friends sent me an audio message from the doctor who was caring for my ex-partner who reported on the medical condition of my partner. This doctor spoke of condition of my ex-partner and the skin grafts he had received and organ failure he is experiencing. I believe that FARC were responsible for the injuries caused to my ex-partner. I sent a message in reply to my friends ask how my ex-partner is. I have not heard further from my friends. Although my friends are living in [Country 3], they occasionally return to, Colombia and I think it is possible my friends have not contacted, me further because they are afraid that me or my ex-partner may be associated with FARC, including because these friends left Colombia for security reasons.
Contact with Colombia since arriving in Australia
Since arriving in Australia, I have not told any of my friends or family (including my son) about the details of my situation or the threats from FARC. This is because I fear that if I told anybody they would be at risk of being harmed or killed by FARC and so long as they don’t know they will be safer.
As I left for Australia [in] December, during the Christmas holidays, I did not tell my former employer of my plans or that I would not be coming back to work. I have not been in any direct contact with my family in Colombia since I arrived in Australia.
After I arrived in Australia, I set up a skype account for my son which he uses to contact his father. My son communicates with his father about once a month over Skype. I have informed my son’s father while he is speaking to my son on skype about changes in our address because that is what our custody arrangement requires me to do. I have not told my son’s father about the protection visa application as he believes I have a student visa.
My son occasionally also speaks to his [sibling] over skype, when his [sibling] is with his father.
I do not personally use the skype account I set up for my son. I have a [Social media] account, but it is temporarily closed. I maintain [another] account and I occasionally receive audio messages from friends who are living outside Colombia (including those messages I describe above).
I am not in contact with my family in Colombia because I believe they could be at risk from FARC if they were to get in touch with me. Shortly after I arrived in Australia, I asked the Colombian friend I was staying with to contact my mother to tell her I was ok and to ask for some financial assistance and to tell her I needed help. I explained to my friend a little about
my situation with FARC, so she would understand why I could not contact my mother directly. I did not think that this friend would be at risk because she has lived in Australia for some time.
I don’t have any family in Australia. I do know some Colombian people in Australia, including the friends who let me stay with them when I arrived, but I am no longer in contact with these friends because I owe them money. When I arrived in Australia I borrowed money to purchase basic supplies for my son and I. I have tried to contact the friends I stayed with, but they are no
longer open to speaking with me and only want to know when I will return the money.
Previous trips abroad
I travelled to Australia previously in 2012. I came to Australia at this time with a friend for a [holiday]. My son did not accompany me on this trip.
Since 2013 I have travelled to various [countries]. My son accompanied me to [a few of the countries].
I did not seek to claim protection in other countries that I have travelled to since 2013 when I was initially contacted by FARC, because although I was scared, the threats seemed less serious at the start. However, in 2015 the threats I received from FARC escalated and when FARC threatened my son’s life, I realised that myself and my son were in serious danger. As I
mentioned above, I saw my son’s travel to Australia with his father as an opportunity for him to flee the risks he faced from FARC in Colombia and as an opportunity for me to follow him, without alerting FARC to my plans.
What I fear would happen if I was forced to return to Colombia
I fear that myself or my son would be kidnapped, seriously harmed or killed by FARC if either myself or my son are forced to return to Colombia. FARC know my son is my only family and the most precious thing in my life so I believe they would continue to threaten my son if he were to return to Colombia, even if I did not return. I grew up in fear of FARC, including because me, my family and friends came into direct contact with FARC. When I was at school in year [Number], a father of a friend was kidnapped for an extended period of time. When I was [Age] my older brother and I were travelling in a bus in [named town] (the town that my mother’s family previously came from) that was stopped by FARC. FARC burnt down the bus and took all our money and jewellery. My brother and I managed to escape, but my mother’s family then left that town out of fear of FARC. When I was [Age] years old, an uncle who was in a public
position was travelling to a town with my cousins and FARC tried to shoot down the plane they were travelling in but they managed to get away. When I was [Age] or [Age], my father who was [an Occupation 2] working in various locations around Colombia, was kidnapped by FARC for 3 months and was only released after he negotiated with them after he handed over [work-related items] and money.
I believe the recent injuries suffered by my ex-partner (which I describe above) were caused by FARC and I fear that if my son or I were forced to return to Colombia we would similarly be at risk of such serious harm.
I am personally aware of and know of people (including friends) who were in similar jobs and roles to me in Colombia and have disappeared. These people were never found and there was no explanation for their disappearance, but my belief is that these people were taken by FARC.
A friend of mine, [Ms B] and I met in 2010 through a mutual contact working in a similar field. [Ms B] was working for [a] firm in an area where FARC were active. One day in 2012, while she was working on the project in the FARC area, she and some other colleagues disappeared when working on a settlement on the boarder of Colombia and Ecuador. Around the time she disappeared there were some tensions between FARC guerrilla in the area where she was last seen and I believe that FARC were responsible for her disappearance. [Ms B]’s family made a public appeal about her disappearance but she has never been found. Attached as Annexure B to this statement are newspaper extracts in Spanish and English relating to [Ms B]'s disappearance.
In September 2016, I found out from reading the news that [Ms B]’s father ([Mr C]) passed away. A Spanish news article relating to [Mr C]’s death is at Annexure C to this statement. The article explains that [Mr C] suffered serious health problems and depression after his daughter’s disappearance I believe this strongly contributed to his death.
FARC are very powerful and have contacts within the Government, police and military and operate throughout Colombia. I would not be safe from FARC anywhere in Colombia as they have contacts and presence throughout the country and would be able to track me down throughout Colombia. FARC also have contacts and presence in other countries outside Colombia. As the police, army and Government in Colombia are corrupt and are infiltrated by
FARC, I could not seek protection or assistance from the authorities for myself or my son.
The recent peace accord that was reached by negotiation with FARC was put to a vote of the Colombian people in October 2016 and was not accepted. I believe that the peace accord was corrupt. I believe and it has been reported in the news that FARC are angry at the population for not approving the peace accord and the cease fire has ended. It is possible that the harm
caused to my ex-partner may be part of FARC’s retaliation and I believe that as a result of the political situation my son are in even more danger now than when I left Colombia.
Departmental Interview

The following is a summary of the information provided by the applicant in her Department interview on 16 March 2017:
a.The applicant has travelled to other countries for tourism and for work.
b.Her parents are both Colombian. She lived in Bogota in Colombia. She has [brothers] and one sister. One brother is in [Country 1].
c.She was a project manager in the private sector for a company. She helped other entities. The company was managed by [deleted]. There were other personnel such as [deleted], plus casual employees. They used contract people for projects they wished to take on. The applicant was a Project Manager and helped to start the contracts and sell them to others. The company would do consulting and be offered projects for environmental solutions. They would do some initial work and then offer the projects, mostly to the public sector, and help people get jobs. The company managed about ten projects in different parts of Colombia. She earned a base salary of 6 million plus commissions on projects. This was about $AUD 4-6000 per month.
d.The applicant’s role was to monitor and visit the projects to see their advancement and what further resources they needed, and to create employment solutions for local people. She was [deleted] in the hierarchy. She supervised [people]. The applicant further described the company structure and its operations. She last had contact with the company manager last September to get her certificate.
e.The applicant does not have a political party but follows a particular politician who ran for president. He belonged to the greens and promoted caring for the environment.
f.She has no family in Australia. She previously came to Australia in 2012 for a holiday. She last arrived here in December 2015.
g.She was first approached by FARC when she travelled to [Town 1] municipality to offer a project to do with [Project type]. She would be in charge if the tender was approved and would have a role in who was hired. She would have to help teach and manage the hired workers in [Project type].
h.She travelled to [Town 1] by herself. After she was coming out of a meeting she went for a coffee and a man approached her and told her he knew the purpose of her trip and he was interested in getting involved. She had not seen him before. He said he wasn’t part of the government, he was part of FARC. He said if she got the tender they would have people working in the project. He said she would have to employ their people but not to worry as they would invest as well.
i.It was to be the first project in [Town 1] but it didn’t go through. After she returned to Bogota she told her boss FARC wanted to get a vacuna and if they got into the area the company would have to pay moneys. She was in shock and told her boss she would not return to that place. She didn’t talk to him about it much because it was dangerous to talk about these things. Her boss, [Mr A], agreed with her and the project did not go ahead. The applicant communicated this decision to the client, the public services of [Town 1]. This was in about June 2013. [Town 1] is about [Distance]km from Bogota, by plane and then bus.
j.The applicant did not tell her family what happened. She tried not to give a lot of attention to it.
k.After this, in about July, the same person started calling the applicant’s mobile to ask about the project. They asked why she did not go ahead with the project. The applicant received several phone calls that she had to change her decision and take the project.
l.The delegate put to her that her written statement was different. The applicant replied sorry she was confused her written statement was correct. So the person did not know the project had stopped. The applicant changed her mobile number but they contacted her on her new number. She does not know how they got her new number.
m.After this there was an encounter when she was in a public place and approached by two people. She thinks they had a firearm. They took her bag. She was going home from work. She lived nearby. She reported this to the police but didn’t tell them about the threats because it is not known who is involved and who isn’t.
n.Later in a shopping centre they broke into her van and took her keys. They later called her and told her they knew everything about her, her family and where she lived. She reported this to the police and made an insurance claim.
o.Then later she was taking her child to school. Two men went by on a motorbike and broke her mirror. They then called her and she had her mobile phone on speaker in the car. They threatened her and her child heard this and then she realised this was a big risk, things were different. She couldn’t leave her job until she got a new one but she realised given they knew everything about her changing her job would not solve the problem.
p.After this her child’s father wanted to come to Australia for a holiday as his girlfriend was here studying English. The applicant needed to give her permission for her child to travel with his father. She gave her permission in October. Because of all the threats she decided to plan a trip too separately. She told her then partner about her decision and said it was for economic reasons. She did not tell him the truth so that he did not get involved. The less people who knew the less dangerous it was for them.
q.A friend of hers lives in [Country 3] and has told her that her partner was in intensive care, in September or October the previous year. He has first or second degree burns. She was living with him at the time she left Colombia.
r.She is not in contact with her family because she prefers to be away until things calm down. She has spoken to her mother as she had to ask for financial support. She told her mother she was okay and away for a while. She thinks her mother understands. Her mother doesn’t know completely what happened. The applicant didn’t tell her about the threats or encounters but her mother knew the applicant feared the FARC.
s.She rented the flat she lived in in Colombia. When she received the threats she moved around a little. She stayed at cousins’ places and sometimes at her grandmother’s place. She left her things with her grandmother. She was at her grandmother’s place for about two weeks. Her grandfather died at that time. The school year had finished.
t.The applicant had a friend from her previous work. She disappeared in 2012 while in FARC territory. She worked in environmental [matters].
u.The applicant doesn’t know if anything happened to the other [people] at her company. She last contacted [Mr A] in September or October last year. He is still running the company.
v.She believes if she returns to Colombia the FARC will take her child.
w.There is a lot of corruption in Colombia. You don’t know who are the good people and who are the bad people. She gets frightened still sometimes. She could relocate in Colombia but Bogota is supposed to be the most secure place. They can find someone wherever the person goes.
x.She went to [Country 1] in 2014 for work. She was there for three days. She also had a Schengen visa but it has expired.
y.She did not tell her employer she was leaving for good. She just asked for one month’s holiday. She didn’t inform them she was not going back. She told her mother to tell [Mr A].
z.Her mother is an [occupation] and has a [business]. Her father [does a Job task]. He was kidnapped a while back by the guerrillas. He was released after he paid a ransom. This happened about 15 or 17 years ago.
Post Interview Submission
On 24 March 2017 the applicant’s newly appointed representative submitted legal submissions and country information on behalf of the applicant,
Delegate’s Decision
The Delegate did not make a clear finding about the credibility of the applicants’ protection claims and the reasoning in relation to the decision outcome is not always clear. The Delegate found that the threat from FARC had devolved into harm from criminal elements and that there was no indication that the applicant was being targeted by the police. The Delegate accepted that the police in Colombia are under-resourced but that they are making efforts to prosecute and punish perpetrators of abuses. She found that the harm the applicant feared was not a result of systematic or discriminatory conduct given the huge rate of crime in Colombia. She found that protection was available to the applicant at the same rate it was available to all Colombians. She found the reason for the harm was personal and not tied to the state. She considered it adverse to the applicant’s claims that she had not tried to go to a neighbouring country. She also found that the applicants could relocate inside Colombia.
Information to the Tribunal
Pre-Hearing Submissions
On 26 September 2017 the applicant submitted the following materials to the Tribunal:
- A further written statement in Spanish. An informal translation of the letter indicates it refers to her ex-partner suffering serious burns in Colombia, and threats against her parents forcing her mother to leave to another part of Colombia, Cartagena.
- News articles in the Spanish language showing guerrilla attacks in [Town 4] in Colombia in 2017.
On 30 May 2018 the applicant submitted a Statutory Declaration stating that since she arrived in Australia “they” have retaliated against her family in Colombia. Her ex-partner was burned in October 2016 and spent three months in intensive care. He is still recovering. Her parents were threatened in May 2017 and her mother had to flee. Her father disappeared for several months but had reappeared and is part of a displaced victims’ program. Her and her ex-partner’s relatives had to relocate and don’t speak to the applicant for their safety. The applicant attached the following documents to her statement:
-A Colombian Statement form for Registration on the Victims’ Unique Registry, dated [April] 2018, identifying the applicant’s father. Within the list of people affected by the acts deposed to in the statement is the applicant’s name. It is emphasised in the document that the threats are against the applicant’s father and also his wife and children. In the statement the applicant’s father declares the following:
I, …, from years 2002 to 2005, was threatened together with my family when we lived in Bogota, which made my wife move to [Town 5], [Department 1], and I moved to [Town 4], [Department 2]; later our older son travelled to [Country 1] and our daughter [the applicant] went to Australia. While living in [Town 4] and due to the peace process, I worked with rural and urban communities on my own will to socialize the importance of obtaining duly approved political representation in the peace process in the House of Representatives, which proposal was never enacted. Consequently, I received reiterative threats during the second semester of 2017, both by phone and with anonymous written threats slipped under the door where I lived, threats against my life, from, supposedly, right-winged groups that are against the peace agreement. Finally, one night, I don't remember the precise date, some men in two motorcycles hit the door where I lived, so I decided to move again to Bogota leaving all my things behind and asking a friend to send me my things later. The story I have told can be supported by the following well-known people from [Town 4]: [Ms D], whose phone is …, civic leader; [Mr E], former city counselor whose phone is …; and the former city major [Mr F], whose phone is …. The property land that was abandoned is located in Bogota at [Address 1], which is under grievance procedure at the [Civil Court] of the Circle of Bogota, and during the Assessment Hearing, I informed the Judge about the statement I am providing in this document, which facts were considered by the Judge as enough to pronounce judgement in favor of my family and myself.
-Her father’s Colombian ID Card.
-Translations of phone text messages in and around October 2016 between the applicant and her ex-partner’s sister, discussing the condition of her ex-partner, his health complications following being very badly burned, the treatment he was receiving while hospitalised, and his eventual recovery.
-Her mother’s flight booking from Bogota to Cartagena in May 2017 and her mother’s passport stamps showing entry to Cartagena in May 2017.
On 23 October 2018 the applicant submitted a message that she had been informed by a phone text that her mother is dead. She does not know if it is true or not and is in shock.
On 8 January 2019 the applicant submitted an English translation of a document she states relates to her father and family, from the ‘Unit for the Comprehensive and Reparation to Victims in Colombia’. The translation is difficult to follow but indicates that a ‘threat and forced displacement’ took place on 1 December 2017 in the ‘Victims’ Singles Registry (RUV)’. It records ‘[Mr G]’ and his family as being included in the RUV, recognising ’the victimizing facts of threat and forced displacement which took place on December [date], 2017’.
On 29 August 2019 the applicant submitted a link to a newspaper article regarding a former FARC commander calling for followers to take up arms again.
On 10 October 2019 the applicant submitted links to news articles in the Spanish language.
On 10 March 2022 the applicant submitted a document previously submitted and screen shots of WhatsApp text conversations in October 2016 in Spanish with ‘[Ms H]’.
On 17 February 2023 the applicant submitted the following information to the Tribunal:
-Links to country information regarding FARC guerrillas becoming politicians in Colombia and other guerrilla activity in Colombia.
-A clearer translation of the ‘Unit for the Comprehensive and Reparation to Victims in Colombia’ record showing the applicant included as a member of her father’s family.
-Screen shots of text messages between the applicant and [an Organisation] Officer in February 2018. The [Organisation] officer confirms that she will send a case to the Colombian [Organisation] for the applicant’s missing father. The officer also writes the following:
“I also want to tell you that the [Organisation] in Colombia told me the names of the three people who were injured in the explosion in July 2017. The injured were two women and one 16 year old boy. There was no information about your father.”
On 22 February 2023 the applicant submitted a copy of an article regarding protests in Australia in 2018 and 2019 against the murders of social activists in Colombia.
Tribunal Hearing, 7 March 2023
The applicant appeared before the Tribunal on 7 March 2023 to give evidence and present arguments. The second named applicant did not attend the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.She telephoned her [former representative] regarding her Tribunal hearing. They told her they would call her to help her prepare for the hearing but they didn’t.
b.Her son is now [Age] years old and still lives with her. He is still dependent upon her. He is going to school in Australia.
c.Her son’s father is now living in [Country 1] in [City 1]. In January she applied for permission to travel there with her son so they could see each other. They were away for three weeks. They are negotiating arrangements for her son’s father to see their son more often. His father wants to have regular visits from their son. He wants their son to travel to [Country 1] once or twice and he will travel to Australia once. Her son’s father is married with children in [Country 1]. She thinks her son’s father has a visa in [Country 1] but she does not know.
d.She has no right to reside in [Country 1] and was just there on a tourist visa. Her brother is in [Country 1] but he is there illegally.
e.She is working in [a] business. She [does a job task]. She is a qualified [Occupation 1] but cannot get work in this area in Australia because of her visa status.
f.After she came to Australia the problems continued. Her ex-partner suffered an attack. The same thing happened to her father. [Organisation] helped her locate him. Two other people were killed but her father managed to get away.
g.Her ex-partner was burned when he was on his motorbike and there was an explosion as though someone had planted something. It happened in August 2016. She found out about it in September or October 2016. She received her information from her friend in [Country 3]. The police were involved and attended the explosion. She understands there was an investigation but she no longer has contact with her ex-partner and his family. They do not want to talk to her. Once he was out of a coma they asked her not to be in contact anymore. Her friends don’t really talk to her anymore as they blame her for what has happened.
h.She does not have a copy of the investigation report but she will try to obtain it.
i.She believes the attack on her ex-partner was because of her. It happened about eight months after she finally left Colombia. He was her partner and they lived together. They were going to get married. When she was threatened she was told that they had all her details and knew where she lived and about her family.
j.Her ex-partner’s sister corresponded with the applicant about his condition. The applicant called his mother after he woke from the coma and she told the applicant that they blame her.
k.Her father [was] also campaigning for the rights of people affected by war. He was a representative of [deleted]. He was attacked in 2017 while the applicant was in Australia. There were threats against her father’s family too so her mother had to travel incognito when she left. The applicant has lost contact with her parents. She last spoke to her father in 2018. She tries not to think about what might have happened to them.
l.After the attack her father travelled to Bogota. [Organisation] helped him while his situation was settled enough for him to ask for protection. He was formally granted protection by the Colombian authorities and then tried to relocate. The applicant and her family lost contact with him after that.
m.Her father’s enemies know that the applicant is his daughter. These are the paramilitaries and the guerrillas who are everywhere. They want to harm her because once a person does not do what they want they want revenge. They are also able to get at her father by harming her. She is her father’s vulnerability. They feel what he did affected them and will get back at him through her. It is like her son is the vulnerable part of her.
n.Her two siblings have relocated and the applicant no longer has contact with them because she is trying to focus upon her life here and her son. They moved to another city in 2018 for safety reasons after what happened to her father. Her mum had to travel away.
o.She thinks her siblings may be in other parts of Colombia. She doesn’t know if they are safe there.
p.The applicant would not be able to move to a new city to be safe. Before she came to Australia she travelled to other cities and was found.
q.You can’t say no to the guerrillas. They thought they had a target and they could move money through the applicant’s project.
r.Her father was [an Occupation 2] and had [Job task] projects. He was approached by the guerrillas and said no to them and he was kidnapped for three months. To get released he had to give up all his [Work-related items] to them.
s.The applicant does not know why she did not simply tell the guerrillas her project had been cancelled. She panicked because they are merciless. When they approached her at the school she just froze in fear.
t.The city where her problems started, [Town 1] in [Province], had a provincial governor [who] worked with the guerrilla’s group. [Details deleted].[1] He was the person who put his signature to the documents for her project there.
[1] [Reference redacted]
u.The applicant’s company withdrew from the project by simply no longer attending.
v.The applicant travelled to [Town 1] and presented the project on behalf of the company. It was a [Specified] project. The presentation was positively received and local government was cooperative and approved it. When leaving for the airport she was then approached by the FARC member and told the ‘conditions’ for the project.
w.The company’s speciality was in [Project type]. They would go to developing cities and put in place [Project type] which could also provide local employment. The projects were social solutions, to address [Social issue] and provide training for the unemployed. The projects also addressed [related Social issues]. The company received income from the project profits. The company was successful and in its last three years grew by [percentage].
x.The FARC own the regional cities. In the large cities they do not have direct access but they control the developing cities.
y.The [Project type] could threaten FARC’s control. The FARC are very territorial about land and land distribution. If a government works well with the guerrillas then the guerrillas let the government work.
z.At the time she was receiving calls from FARC she felt very intimidated. She chose not to tell her ex-partner and other people close to her because if they were ever interrogated by FARC and gave any information they would be killed. She asks herself everyday if her ex-partner would now be okay if she had ever said something to him. The fear she felt at the time made it difficult to think and know what to do.
aa.When she arrived in Australia her son’s school principal told her she could let her son walk to school. This is not something that can happen in Colombia so she did not intend to allow this. However her son pleaded and she finally relented to let him walk to his school. But she was still very fearful so she hid on the side of the street to watch that he would be okay. When he later called her to tell her he had walked by himself it was very emotional for her.
bb.If she had to return to Colombia she would have to apply for work but she doesn’t know what sort or if she could find anything. Her area of work is very risky so she would not choose to do this. She doesn’t know the labour market there anymore. She is qualified as [an Occupation 1] and has a masters degree. Perhaps she could work in [Work sector 2] but [this] involves contact with society and government so this would expose her to approaches and threats from the guerrillas again. She has never worked in [Work sector 2] in Colombia.
cc.She would not be safe in Colombia because of her past. The guerrillas who threatened her are still there. Her dad also had problems with the guerrillas in 2003 and 2017 and this is still continuing for him. The new president in Colombia is an ex-guerrilla.
dd.She is the daughter of a peace leader and also someone who refused FARC’s demands. She has been recognised in her father’s protection document as a displaced person requiring protection. She is on a list of people requiring protection and this list is also accessible to the people who threatened her. They will know if she returns to Colombia. She does not know how they did it but every time she travelled and returned they would call her to tell her they knew she had returned. This is why she travelled to Australia at a different time from her son.
Post Hearing Submission

On 30 March 2023 the applicant submitted the following materials to the Tribunal:
-     UN Reports regarding the situation in Colombia in recent years.
-     An acceptance notice to the second named applicant for a placement of [a training academy].
-     A link to a Red Cross report on Colombia.
-     Messages from the applicant’s [Organisation] case worker to the applicant regarding her father.
-     The 2018 Resolution regarding her father’s victim’s registration, in the original Spanish
-     A letter in Spanish dated in July 2012 on “[Employer]” letterhead which appears to be a monthly activity report from a third person to the applicant.
-     A letter from the document service of the Colombian Prosecution, dated 13 March 2023, in Spanish with an English translation, which is responding to a document request and stating that it is unable to provide the requested information regarding a criminal investigation.
-     A letter to the second named applicant stating he has been chosen to train in [an] Academy in [City 1, Country 1] in April for five days.
-     A Boarding Pass for a flight from Bogota to Cartagena [in] May 2017 in the applicant’s mother’s name.
-     Passport entry and exit stamps including one dated [May] 2017 to Cartagena.
-     Copies of emails in July 2012 to the applicant at [Employer] for domain registration of “[Domain name]”.
-     Copies of work-related emails from the applicant’s personal email accounts.
-     Copy of an accommodation booking addressed to the applicant for “[Employer]” in November 2013
Tribunal Hearing, 4 April 2023
The applicant appeared again before the Tribunal on 4 April 2023 to give evidence and present arguments. The second named applicant did not attend the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages. The following is a summary of the information provided by the applicant at this hearing:
a.She had a work email address but she can no longer access the account.
b.She was able to submit copies of her earlier flight bookings because she still had some information in her computer. She obtained her work certificate from [Mr A] before she left Colombia. She does not know if her company, [Employer], still exists. She does not know where [Mr A] now is.
c.The Tribunal asked the applicant why the company address of the work certificate she submitted was the same as one of her residential addresses. She responded that she must have put the wrong address so maybe her address was incorrect. She lived in [Suburb 3] but at a different address. It was [Address 2]. She lived there for about 2 years or 2.5 years. The company was located in a building with offices, not a residential apartment.
d.Her parents ended their marriage in 2006 and did not live together after that. Neither of them have remarried.
e.In 2013 the applicant’s father was living between Bogota and [Town 4], in the south near the Amazon. He is [an Occupation 2] with [a] company. He would [do a Job task] in those [areas]. In 2013 her mother was living in [Town 5] in [Department 1], near the border. She was based in [Department 1] but would come to Bogota to visit them.
f.The Tribunal asked the applicant why her mother chose to go to Cartagena in May 2017. The applicant responded it was because her mother was persecuted and [Department 1] is a red guerrilla territory. When the applicant came to Australia her mother was persecuted, it was the beginning of the persecution for her.
g.The applicant has a [sister]. The applicant does not know where she is. Her brother [Mr J] is in [City 2, Country 1]. She thinks her brother [Mr K] is in another city of Colombia.
h.The Tribunal asked the applicant why she travelled to [Municipality 1] in May 2015, as shown in the flight bookings she had submitted with her Protection visa application. The applicant responded it was for a [Project type]. The Tribunal asked why she travelled to [Province] in February 2014 and she responded for the same project. The Tribunal put to the applicant that this was in the location where she claimed she had first been threatened by FARC. She responded no she went to [Municipality 1]. Each city has a different company for [Project type]. It was the same project for different companies in different cities. The idea was to do it all over Colombia.
i.The Tribunal asked the applicant which project she told her boss they needed to stop after she was contacted by FARC and she responded that her boss didn’t believe her and said she should continue with the project. After May 2015 she was in other countries. Her boss saw her with a lot of anxiety. The Tribunal put to the applicant that this was different from what she previously had said. She responded they stopped the project in 2014, which was the last time she travelled. The Tribunal asked her why she had then travelled to [Municipality 1] in May 2015 and she responded because she didn’t want to go by herself and went with her boss to close the deals. She said from the beginning he didn’t really believe her but then he did and he sent her to other places to confuse the situation.
j.All the projects were [Project type].
k.The Tribunal asked the applicant why she travelled to [City 1] in June 2012 and she responded for the same project.
l.The work documents she submitted were related to a report to protect the flora. Her employee wrote the report. Others documents she submitted were United Nations reports about Colombia. She did not keep any of her own project documents. Her computer is new. She didn’t bring her computer from Colombia. She obtained her work certificate from the cloud. The Tribunal asked if any of her project documents were in the cloud and she responded that she eliminated them as she had no memory space in the cloud.
m.The Tribunal asked the applicant why she wrote in her Protection visa application that the guerrillas were contacting her in December 2015 to ask her to store things for them. The applicant responded that her English is very bad. She can’t remember but it is not what she wanted to say. The person who helped her typed the form. He is the JP who signed the documents for her. The call she received in December 2015 was to remind the applicant to do what they ask re employing their employees. The Tribunal put to the applicant that she had previously stated by that time the guerrillas knew she was not going to do what they requested.   She responded that they told her they knew where she lived. They tried to intimidate her. They hoped they could still pressure her to do what they wanted.
n.The Tribunal put to the applicant that it has been almost eight years since she left Colombia and FARC’s operations and the person who threatened the applicant would have moved on since then, so given the applicant no longer had anything of use to them why would they now cause her any problem. The applicant responded that in Colombia people have long memories. If you reject them then you are in the blacklist. Her family and friends don’t want to talk to her anymore. It has affected her ex-partner and her parents. The Tribunal put to the applicant that it seemed her father’s work was the cause of the problems for her parents. She responded this also.
o.The applicant lost contact with her father in the beginning of 2019. She thinks the last contact she had with him was a letter he sent to her that he was moving again and he was saying good bye. It was by email, she can find it and submit it.
p.The Tribunal asked the applicant why her other brother and her sister were not named in her father’s victim protection papers and she responded that they were not with the family in 2003. Her younger sister lived with their grandmother and her younger brother lived with his partner. Her grandmother is [name deleted]. She sent the applicant the message that her mother had died. [Name deleted] is her grandmother’s brother. ‘[Nickname]’ is an affectionate name for her mother. The applicant’s mother’s full name is [deleted].
q.Under s 424AA of the Act the Tribunal put to the applicant that her siblings and mother appeared to have [Social media] accounts which show some contact with the applicant, and that her mother was still active on [Social media]. The applicant responded that she doesn’t contact her family but she had contact with her sister in 2018. She had no more contact with her sister after 2021. The applicant received a message that her mother is in heaven which in Colombia means she is dead. She submitted this to the Tribunal. She didn’t even talk with [Mr K] before she came to Australia. She asked him for help and he never responded. The last time she talked to him was in December 2020 to ask him about their father. He responded that he had no idea. The last time she had contact with [Mr J] was in 2017. He has trouble in [City 2, Country 1]. He has no documents. He was in jail and she tried to help him so that is why she wrote. She had no more contact after this.
r.The Tribunal asked why she has ceased contact with her siblings and she responded that when she left Colombia she asked for help and they ignored her and blocked her from social media. They did this after what happened to her mother, or what she believed happened to her mother. She received the message her mother was dead.
s.She cannot continue living like this. She has nothing here and nothing there. She is here with her son who is her priority. She is here to stop and focus on living here as it was not healthy for him there. She rang the tribunal so many times over the years, this is why they put her in the box. She sees the statistics that cases are for two years or three years. She asked for her case to have priority but if she wasn’t dying it wasn’t considered important.
t.The Tribunal asked the applicant why she did not try to find out if it was true or not that her mother had died. She responded she tried but had no outcome. When she was told she had died she went to the airport with her son to travel but she could not get out. She went with the tickets and they said you have no visa you cannot leave.    Security came and told her she could not travel. Her son then told her to just stop it.
u.The Tribunal asked the applicant if she had tried to contact her mother through her mother’s [Social media] account and she responded no because it says ‘from heaven’, which means she is not alive.
v.The applicant’s mother disappeared because of the applicant. The applicant believes this because before her mother was okay. Her mother sent [an Organisation] letter that she would send the applicant money and after that she had to leave. So the applicant thinks someone found she was sending the applicant money and her mother had to leave.
w.Her father had problems in 2017 because he was working with peace topics, helping people where he was so the applicant could come back. She could come back if there was peace. He did that for her, so she could come back, and because it was his country.
x.Most of the applicant’s conversations with [Organisation] were by phone. The Tribunal asked the applicant if her [Organisation] caseworker would write a statement about their interaction about her father’s disappearance and the applicant responded she will try. She has the letter her mother sent about money.
y.The applicant’s family is upset with her. It is not a money problem. She would help her family before she came to Australia. She looked after her sister and paid for her school. They felt abandoned when the applicant left Colombia. [Mr J] is in [City 2, Country 1] and was in jail and she tried to help him and he didn’t respond. Before she left she asked [Mr K] for help and he didn’t offer or respond. She wasn’t asking him for financial help it was about another job. She wanted to look for another job. She doesn’t know why he is upset with her.
z.She doesn’t have the letter her father sent her anymore. She has no copies of any correspondence with her siblings.
aa.The applicant knows of other Colombians in similar situations to her who have been recognised as refugees recently. One is a social worker and University professor who left Colombia because of threats from FARC she received at her work. FARC wanted her to work for them and include her ideologies in her teachings.   The applicant knew her through a congress in which she did some exposition. She left Colombia and fled to [another country]. The other is a man who came to Australia and was refused a Protection visa. He then went back to Colombia and his father was killed so he returned to Australia and his Protection visa was granted, in 2019.
Post-Hearing Submissions
On 1 May 2023 the applicant provided the following further written materials to the Tribunal:
-     A written statement by the applicant.
-     Screenshots of text messages between the applicant and “[Mr O]”.
-     Photographs of the second named applicant in [Activity] related photographs.
-     A photograph of the applicant, her current partner and the second named applicant.
-     Photographs of the applicants together.
-     The second named applicant’s school certificates.
-     A copy of an email the applicant sent her to brother [Mr K] in 2014 requesting his help to find her a job in her field. She attached her CV to her email and it includes her work at “[Employer]” from December 2010.
-     A psychological report prepared in April 2023, in Spanish. The report refers to the applicant telling the psychologist in June 2009 of family problems, particularly with her mother and siblings, and describing them as dysfunctional. When her parents separated she was left to raise her young sister until her mother returned after several years and created conflict with her so that the applicant was excluded from family gatherings. She was also financially supporting her siblings and her mother but stopped doing so after the birth of her son so her family resorted to taking her money and selling her possessions when she left Colombia. The psychologist diagnoses the applicant with an “unspecified anxiety disorder”.
The applicant’s written statement contains the following:
You can see from my testimony and the information I have provided that Colombia strongly demonstrates that effective state protection may not be available to us civilians in opposition, whether resilient, political-state, particular group, criminal ; we become targets of selective assassinations, intimidating and having repercussions on our family, friends and close people.
As Australian law says in section s.5 LA of the Australian Law, effective protection measures are required to include the relevant state, party or organisation, which is willing and able to offer adequate protection.
But in Colombia it is shown that there are significant doubts about whether the Colombian State is willing and/or capable of offering adequate state protection to the members of the social group in particular, opposition to criminals, guerrillas and dissidents, victims of political and criminal assassinations. As well as with reference to section s.5LA(2)(b) of the Australian Law, it is questionable whether any protection available to members of a particular social group, opponents and family members is durable or not.
As you can see, Your Honor, there was no actual delay with respect to my request for
protection, in the relevant circumstances. It is evident that if my son and I had received attention to our case on time --immediately), Australia would have granted us our protection visa from the first time.
In addition to this, since my application to the court, only 7 years later I received the appointment to hear my case, where my first hearing questioned the time that has passed since I requested our protection, which I understand but I see as unfair. Failure to return to an apprehended location of harm may indicate a genuinely well-founded fear of harm. When I lived in Colombia and went for protection, the Colombian government did not provide it to me, it does not guarantee my safety or that of my son, in addition to the fact that when I arrived in Australia they mercilessly attacked my ex-partner, they persecuted my parents. For all this I fear being persecuted for my opposite opinion, negative against the dissident groups that are also linked to the state and this causes the possibility of being persecuted again upon my return.
It is clear that the political instability and criminal activities of organised criminal enterprises and ruthless criminal thugs in Colombia continue to exacerbate the threat of harm that we have articulated. We are a key target because of our past and because we are members of a particular social group that my father formed for wanting to defend peace, being innate and immutable characteristics that comprise our security and integrity.
The reason for requesting protection is because I fear being persecuted with my son for one of the stated reasons (the reason for refuge), which includes belonging to a certain social group (in my case I belong to a group that goes against an opinion- Farc group, resilient, guerrilla, paramilitaries). My fear of persecution is well-founded, it is real that if I return to Colombia, we will be persecuted for various reasons, such as when I applied for refugee status and demonstrated for a long time. My likelihood of persecution is real, I have a well-founded and consistent fear as required by Australian law section 5J(1) of the Act.
Now, with so much waiting and living alone in uncertainty, anxiety and exile; 3 or 4 years ago I decided to get rid of all my past to be able to live again, to give myself a new chance at life, as my son requested. We both deserve it, a life free from fear, harassment, threats, intimidation, lack of protection and terror, especially the one who arrived here at the age of [Age], resilient to our entire situation, forged a dream that has given him a life motivation "he wants to be a professional [Activity participant] and my emotional state, crisis, economic instability and traumas did not help him from his dream, because "the drama of forced disappearance has touched me closely, in my family, colleagues from the university, friends, I think that it is not something that can be overcome so easily and perhaps never ”. They constantly affect you.
Chapter 10 - Expressive Arts:
Living in exile in addition to previous traumas can lead to isolation, lack of self-esteem, apathy, numbness, depression, and guilt (Meyer DeMott, 2007). Since refugees have already lost so much, they are afraid of getting attached and having to go through the pain of separating again. It is better to stay isolated and live in a vacuum than engage in the present and look to the future. Living in a different culture breaks the continuity in one’s life. Also, most refugees come from countries where it is dangerous to express one’s opinion. For example, in their school they are expected to learn what the textbook and teacher says. In the new environment, they are encouraged to think for themselves, and teaching often occurs in group discussions. This change can be very threatening for someone who has lived with the fear of being killed for expressing him or herself.
Living in exile means that you are living involuntarily in a country. You cannot leave if you do not like the food, the weather, the music, or the politics. It is a totally different experience than when you know that you are only going to stay temporarily and have a date for returning home. The longer you live in exile, the smaller the probability is that you will ever be able to return home, so even refugees who can go home feel that they cannot for many different reasons.
They have changed and the country they left has changed. Author links open overlay panel M.A. Meyer DeMott 1 2 3
That meant the rupture of a personal history that was being formed and configured in a historical-social context. When our violent break in the vital continuity of exile occurred, disorders appeared in the formation of our identity.
The loss of the social context in which I forged my life and therefore my affections and commitments disappeared, there was a break in my projects with and for others.
This generated a feeling of brutal punishment that consists of having taken away my love objects, the things that gave meaning to my life, that made me recognize myself, a feeling of deep mourning. Not an individual and isolated duel, but a group and shared duel.
I decided to cut the communication with my family that never helped me, that was the opposite. I came from a dysfunctional family, one thing that happened to me was parentified (is when a child is made to fill an adult role).
Long time ago I started to be independent and because I felt that was my responsibility, I tried all the time to help each member of my family, but when I could not help, they disappeared or blocked me.
When I requested help, I never received an answer (I attached the email [examples]).
Additionally, they made bad decisions that affected my son and me very deeply. They stole my car, money and an idea that I was developing. (I attached the messages with my best friend [Mr O] and [my] nanny from Colombia where we talked about that and a psychologist report). I hope you understand that sharing all these things is not easy for me, I don’t like everyone knowing about that because it is a shame that your family did things like that to you.
That's why we decided to adapt to the new situation. And we organise ourselves according to how we define our situation in this host country "Australia" and we orient ourselves according to the type of elaboration that we can carry out of our past.
Living, recognizing and accepting our new reality in which we are immersed signals an opening towards life in exile, a possibility of reconstruction that facilitates the processing of losses and allows us to restart our ties with the world and with others.
We got rid of all our past and started from scratch. Three and a half years ago, I found a new Australian [partner] (he is a leading professional [Activity participant] in Australian history, who has greatly helped my son's emotional and [Activity] development) and with him and my son we have formed a stable family. We recently integrated our cute [pet]. I created my own company [which] has been growing and contributing positively to the Australian economy. And together with my partner we organised another business “[Business]” that has been very well received in Australia. My son is totally focused on his study and his [Activity], giving great results.
He has won several [games] and received an invitation from [an] Academy in [City 1, Country 1], from where he recently returned with the good news of being included in a [competition] for [City 2, Country 1] in July and a spot at the [Academy] for summer [2023]. His big dream, to [do an Activity] as an Australian, to represent Australia in [Activity].
Country Information

DFAT’s current Travel Advice for Colombia[2] advises travellers to “exercise a high degree of caution in Colombia due to high levels of crime and terrorism” and to reconsider the need to travel to the majority of areas in Colombia. It lists the following safety concerns:
Terrorist groups continue to plan attacks around Colombia.
Violent crime and gang activity is common and increasing. Criminals may pose as police officers or spike drinks and food. Don't travel alone or at night.
Drug-related crime, terrorism and civil unrest make some areas very dangerous. These include the regions within 20km of the Venezuelan and Ecuadorian borders, the cities of Buenaventura and Tumaco, and the Darién Gap. Avoid these areas.
[2] accessed May 2013
Kidnapping occurs in areas of Colombia. If you’re travelling to an area with a high risk of kidnapping, seek professional security.
The DFAT Travel Advice further states:
Terrorist attacks remain a significant threat, even though security has improved. Attacks could occur anywhere and at any time in Colombia. … The most well-known terrorist groups, the dissident groups of the former Revolutionary Armed Forces of Colombia (FARC) and the Ejército de Liberación Nacional (ELN) guerrillas:
·mainly target Colombian government and economic infrastructure
·sometimes target foreign companies and employees
·use terrorist-style tactics to conduct small-scale attacks
The FARC handed in their weapons on 27 June 2017 as part of a peace agreement with the government. However, dissident groups continue to operate. A temporary ceasefire between the Government of Colombia and the ELN ended on 9 January 2018. The ELN resumed attacks against government and economic targets and has announced a number of national ‘armed strikes’. Cartels also operate, the most well-known being the Clan del Golfo. In some regions, the security situation could deteriorate rapidly as a result of these groups.
…
Terrorists, criminals and armed gangs operate from small towns and rural areas. This creates danger for travellers. Armed gangs are called 'BACRIM' in Spanish. Violence due to the BACRIM has spilled over into major cities. These groups are involved in drugs, extortion, kidnapping and robbery.
The 2022 USDOS Human Rights report for Colombia contains the following:
Significant human rights issues included credible reports of: unlawful or arbitrary killings; torture and arbitrary detention by government security forces and armed groups; serious abuses in a conflict; criminalization of libel; serious government corruption; violence against and forced displacement of Afro-Colombian and Indigenous persons; violence against lesbian, gay, bisexual, transgender, queer, and intersex persons; and killings of and other violence against trade unionists.
… Armed groups, including dissidents of the former Revolutionary Armed Forces of Colombia, National Liberation Army, and drug-trafficking gangs, continued to operate. Armed groups, as well as narcotics traffickers, were reported as significant perpetrators of human rights abuses and violent crimes, including acts of extrajudicial and unlawful killings, extortion, and other abuses or crimes, such as kidnapping, torture, human trafficking, bombings, restrictions on freedom of movement, sexual violence, unlawful recruitment and use of child soldiers, and threats of violence against journalists, women, human rights defenders, and religious leaders. The government generally investigated these actions and prosecuted those responsible.
… Illegal armed groups, including the National Liberation Army (ELN), committed numerous unlawful killings, in some cases politically motivated, and usually in areas without a strong government presence.
… The government and the FARC, formerly the country’s largest guerrilla insurgency group, continued to implement the 2016 peace accord. In 2017 the FARC completed its disarmament, and as of July nearly 13,000 former members were engaged in reincorporation activities, including the formation of a political party. An estimated 800 to 1,500 FARC dissidents did not participate in the peace process from the outset. As of October, NGOs estimated FARC dissident numbers had grown to approximately 5,200 due to new recruitment and some former combatants who returned to arms. A significant percentage of FARC dissidents were unarmed members of support networks that facilitated illicit economies. Some members of the FARC who participated in the peace process alleged the government had not fully complied with its commitments, including ensuring the security of demobilized former combatants or facilitating their reintegration. The government alleged the FARC had not met its full commitments to cooperate on counternarcotics efforts and other peace accord commitments
The May 2022 UN Human Rights Council report, ‘Situation of Human Rights in Colombia”, contains the following:
The fifth anniversary of the signing of the Peace Agreement between the Government of Colombia and FARC-EP was observed in November. The demobilization of FARC-EP and the formation of a new political party are among the most important outcomes for the peacebuilding process. Another significant result is the creation of 16 Special Transitory Peace Electoral Districts, particularly with regard to the political participation of victims from the areas most affected by the armed conflict and the most excluded sectors of society. The positive progress made by the transitional justice mechanisms is another important milestone on the fifth anniversary. However, the increase in violence in rural areas and some urban centres in 2021 seriously affected the leadership and community life of indigenous peoples, campesinos and Afro-Colombians, as well as women in rural areas.
…
According to the Economic Commission for Latin America and the Caribbean, Colombia is the country with the second highest level of inequality in the region. This situation primarily affects women, rural populations, indigenous peoples, Afro-Colombians and persons living in poverty in large cities.
…
OHCHR received information on 100 potential massacres in 2021; of these, 78 have been verified, 2 are still being verified and 20 were deemed inconclusive. The 78 verified massacres involved 292 victims, including 32 women, 15 boys, 5 girls and 13 persons belonging to ethnic peoples (7 indigenous persons and 6 Afro-Colombians). The most affected departments are Antioquia, Cauca, Nariño and Valle del Cauca.
The Office for the Coordination of Humanitarian Affairs reported increases in displacement caused by violence and in confinements or restrictions on movement imposed by non-State armed groups and criminal organizations. The Office reports that 72,388 persons, including 12,848 children, were displaced between January and November 2021, while 26,291 persons were displaced in 2020. In addition, 57,787 persons have been confined between January and November 2021. The Office reports that 69 per cent of displaced persons and 96 per cent of persons whose mobility has been unduly restricted are from indigenous or Afro-Colombian communities. In 2021, the United Nations Verification Mission in Colombia verified the murders of 54 former members of FARC-EP, bringing to 303 the number of such killings since the signing of the Peace Agreement in November 2016.
According to data from the National Police, in 2021, the total number of homicides rose by 9.5 per cent compared to 2020. This violence occurs mainly in areas with high levels of inequality and an insufficiently comprehensive State presence.
OHCHR noted that violence committed by non-State armed groups and criminal organizations affects the lives of individuals and communities and has a disproportionate impact on indigenous peoples, Afro-Colombians and campesino communities. As well as committing massacres, causing forced displacement and imposing curfews and other restrictions on movement, these groups kill social leaders, threaten individuals who ignore their demands, control communication in the community, limit relationships with third parties, restrict and control productive activities including planting, harvesting, fishing and marketing of products, and do not recognize ethnic authorities. Such actions negatively affect food security in communities and undermine their political and economic autonomy. In addition, the development and exploitation of illicit economies and territorial control by non-State armed groups is increasing.
Violence against women and girls, particularly sexual violence, is another issue of concern.
…
In several regions, despite the growing presence of the security forces, non-State armed groups and criminal organizations have continued to multiply, expand and use violence. In some places, clashes between the military and non-State armed groups have led to displacement.
The European Union Agency for Asylum (EUAA) report, “Colombia Country Focus”, published in December 2022 states:
Illegal armed groups and criminal organisations continue to operate in Colombia, despite the peace agreement with the FARC-EP. These groups are responsible for human rights abuses and violence such as killings, sexual violence, executions, use of antipersonnel mines, confinement and forced displacement, extortion, kidnapping, torture, massacres, human trafficking, drug trafficking and illegal exploitation of natural resources. Since the signing of the peace agreement, the government has not fully responded to the territorial challenge of providing a comprehensive state presence and has pursued military solutions that have been insufficient to curb the progressive increase in presence of armed groups. At the time that the Peace Agreement was signed in 2016, the FARC-EP, guerrilla, and paramilitary groups were mostly active in approximately 300 out of Colombia’s 1 123 municipalities. As of August 2022, the Office of the Ombudsperson classified 290 municipalities of being at ‘extreme risk’ of abuses by illegal armed groups due to territorial disputes. The United States Institute for Peace (USIP) observed that both the AGC and the ELN have more than doubled their territorial presence since FARC-EP demobilised. In April 2022, Pares reported that 420 municipalities are now reporting the presence of armed groups, touching 37 % of Colombian national territory.
Armed groups also ‘exercise territorial control in some areas of the cities’ such as Medellín and Bogotá, exercising their presence through illegal economies and social control. Violence is often concentrated in regions of the country where there is a limited state presence. However, Jeremy McDermott remarked that this is not the case in the urban context where there is a state presence, nor in areas such as Urabá, home region of the AGC, where there is a significant state and security force presence, but the group still operates there. Targeted killings tend to be higher in areas with the presence of multiple armed groups and where there is rivalry between them. Additionally, with Colombia having the highest cocaine production in the world, the coca-growing and drug trafficking industry fuel the armed conflict and its myriad criminal actors in competition with one another, often where coca is grown in Norte de Santander, Nariño, Putumayo, Cauca, and Antioquia. Armed groups are also concentrated in areas where legal an illegal mining is occurring, as well as areas of strategic importance such as ports, access corridors through the territory], coasts and borders.
…
Initially, after the signing of the Final Peace Agreement in 2016, there was a decrease in conflict-related violence. However, in the years since, violence has increased again in regions historically affected by armed conflict and the growth in crime represents the main obstacle to lasting implementation of the agreement. As the FARC-EP demobilised and moved out of its traditionally held territory, warring factions of armed groups and criminal organisations have expanded their presence and activities in these areas, competing for control. Actors in the conflict after 2016 were no longer defined clearly as ‘guerrilla’ or ‘paramilitary’, as in the past, and have been recycled into new formations. Since proliferating post-2016, these groups are more fragmented and hybridised and fight over control of illicit economies and territories, rather than for ideological purposes. In addition, the absence and limited presence of the state and civil authorities in many of these areas has intensified disputes between these armed groups and criminal organisations who vie for ‘social, territorial, and strategic control, further aggravating violence against civilians, hindering governance and altering the lives of entire communities’.
International Crisis Group assessed that in a growing number of rural areas, ‘violence and coercion are as bad or worse than before the peace agreement’ and competition between groups and associated homicides are at risk of worsening and destabilising seemingly stable regions. Affected communities blame the absence and limited capacity of the state for failing to deal with the situation; a state that is not seen as trusted. The UN remarked that there is an especially urgent need for the government promote the ‘comprehensive presence’ of the state in rural areas of Amazona, Antioquia, Arauca, Bolívar, Caquetá, Cauca, Chocó, Nariño, Norte de Santander, Putumayo, and Valle del Cauca. The lack of state presence has also left human rights defenders, social leaders, ex-FARC-EP combatants and others exposed to targeted attacks and killings. In areas where the state is less present and there are higher concentrations of violence, the provision of basic services such as education, health, and justice are also lacking.
From 2012, when peace negotiations between the government of Colombia and FARC-EP commenced, to 2016 when the peace agreement was signed, there was a drop in the overall national homicide rate from 35.95 to 23.66/100 000 inhabitants) and a drop in the homicide rate in the 281 municipalities most affected by the conflict (and most at-risk of post-conflict violence. In 2016-2017, the national homicide rate remained similar at 23.66 (2016) and 23.07 (2017), but in those 281 municipalities most impacted by the conflict, the violence began to increase, marked by significant clashes between competing groups in the aftermath of FARC-EP’s demobilisation. This was followed by an additional spike in violence and the rising the homicide rate in 2018-2020 (during the Duque administration) in the most affected municipalities. This was due to outbreaks of violence between ELN against EPL, AGC, and FARC dissidents, respectively; as well as violence between AGC and other paramilitary and criminal armed groups. Multiple NGOs blamed the increase in violence and expansion of armed groups during 2018-2022 on Duque’s policies of refusal to engage in peace talks with ELN, failure to confront paramilitarism and to dismantle the AGC, and generating the conditions for impunity.
Colombia’s Special Jurisdiction for Peace (JEP) war crimes tribunal determined that 2021 was the most violent year since the government and FARC-EP signed the accord, with the highest number of massacres, massive forced displacements, armed clashes between security forces and armed groups, harassment of security forces and child recruitment. Similarly, FIP indicated that 2021 was the year where armed actions have had the greatest humanitarian impact on the population since 2015, mainly in the form of confinement and displacement. Children have been displaced, confined, recruited, subjected to abuses and sexual violence during the conflict also. This declined after 2016, but since the armed groups have attempted to take over former FARC territory since 2016, conflict levels increased in 2020-2021, causing an increase in conflict-affected youth.
Sources indicate that conflict patterns have remained largely the same since 2016 when there was an initial drop in violence, followed by a reconfiguration of armed groups and growth of criminal groups disputing former FARC-EP territory and filling vacuums left by the FARC-EP’s withdrawal. Violence is especially concentrated in the Pacific region largely inhabited by indigenous and Afro-Colombians, and the Department of Antioquia. The main departments affected by armed conflict and homicides in 2021-2022 are: Antioquia, Arauca, Bolívar, Cauca, Córdoba, Chocó, Norte de Santander [especially Catatumbo on the border with Venezuela], Nariño, Valle de Cauca, as well as departments with lower population density like Caquetá, Putumayo, and Guaviare. According to Indepaz, in relation to the impact of armed confrontations and groups on the civilian population, communities and social leaders, the most affected territories number 250 municipalities, however, due to the interconnectedness of mafia groups, cartels, and economic and social power, the conflict ‘touches the whole of society and most of the national territory’. …
The Duque government of 2018-2022, like past governments under Uribe, denied that there was any armed conflict in Colombia, contravening the position of the International Committee of the Red Cross (ICRC). According to ICRC, as of March 2022 reporting, there were six non-international armed conflicts on-going in Colombia in 2022:
1. The Colombian state versus the Ejército de Liberación Nacional (ELN)
2. The Colombian state versus the Autodefensas Gaitanistas de Colombia (AGC)
3. The Colombian state versus FARC-EP dissident groups [former FARC-EP who do not accept the 2016 Peace Agreement]
4. The ELN versus the AGC
5. FARC-EP dissident groups versus Segunda Marquetalia [itself a FARC-EP dissident group]
6. FARC-EP dissident groups versus Comandos de la Frontera-Ejército-Bolivariano (CDF-EB) [itself a sub-group of Segunda Marquetalia]
… International Crisis Group explained that ‘hostilities between the military and armed groups is no longer at the heart of the conflict in Colombia’ but rather the competition between armed groups for territory [and illicit economies] while trying to avoid direct engagement with the armed forces. ICRC described it as a low intensity conflict with ‘extremely high impact’.
Illegal armed groups impose social control over populations in areas they control or seek to control. Social control in this context is defined by the UN as intimidation strategies, harassment, pressure, extortion, and other actions by non-state armed groups and criminal organisations with the objective to control the population and territories. Armed groups retain the capacity to control large swathes of territory through demonstrated military capacity, communications, and financial capabilities as demonstrated by the AGC’s ‘armed strike’ in spring 2022 that saw the group threaten 11 departments of Colombia. A Political Analyst based
in Colombia who monitors security, political, and economic developments and risks in Colombia who was interviewed for this report stated that while they do not appear to pose a threat to the stability of the state at the current time, armed groups have sufficient power and influence to become a strong threat, especially in Catatumbo (Norte de Santander), Cauca, Valle del Cauca, the Pacific coastal region, Tumaco, and the borders with Ecuador and Venezuela.
…
A 2018 report on urban security by the International Institute for Strategic Studies remarked that cities are not unconnected from post-conflict security and that the absence of the FARC-EP has created shifts in crime and illicit economies inside cities, and that cities are ‘at the centre of new security dynamics’ as insecurity fragments urban territory with some areas disproportionately affected by extortion, violence, and forced displacement. …The state is more present in big cities and police have organized themselves by districts / Centros de Attencion Inmediata (CAI) (street posts). However, they are less present in slum neighbourhoods. Indepaz asserted that presence of the armed conflict in urban areas is not new. In 2021-2022, it acquired greater relevance due to the strengthening of the linkages between armed structures with national scope to local gangs/combos, through relationships of outsourcing.
…
5.2. Motivations and strategy for exerting control and targeting civilians
All criminal and armed groups in Colombia are interested in exerting control over communities, land, commerce, and securing territorial control via coercion and control of local populations. Violence by armed groups is very much over economic and military strategic interests and clashes are used to maintain or dispute power and control. In some areas, illegal armed groups behave as a traditional actor of the armed conflict, for example exercising total social control of a territory, while in other areas, they may behave like criminal bandits. For example, AGC behaves like a traditional actor in Urabá, one of its main strongholds. The ELN also behaves this way along the Venezuelan border where they have political and physical control, but in Chocó, for example, they engage in more criminal behaviour. FARC dissidents also do this in the Pacific department of Nariño.
Furthermore, the distinction between criminal and political violence is not always clear because most armed groups are not ideologically driven anymore and they no longer distinguish between enemies and allies on this basis, but rather, who aligns with their military or economic interests in that local area at any given moment. This has changed the relations between different groups. Armed and criminal groups establish alliances of convenience, for tactical and strategic reasons. AGC allies itself with ELN or with FARC dissidents, depending on the area and the interests at stake, while they may clash with them in other territories. Configurations can be the domination of territory, for co-existence, or to challenge each other’s territory – but there is no longer a single organisational logic to the conflict – it has become fragmented. Former paramilitaries, FARC dissidents, criminal gangs and drug traffickers are operating through networks of opportunism.
The influence of political ideology has declined as a motivating factor, in favour of pursuing illicit markets and territory. Sources indicated that the ELN is the group most likely to continue targeting on the basis of its leftist ideology, though local fronts vary in their adherence. The Political Analyst noted however that even targets with the ideological alignment to the ELN will be targeted if they become a threat to ELN’s objectives.
Armed groups ‘try to avoid direct confrontation with the military’ and instead achieve control and expansion of space through intimidation and co-opting of the local population through economic means such as paid recruitment of youth in remote areas, or co-opting farmers seeking to substitute illicit crops. Additionally ‘coercive measures’ include intimidating local community bodies such as the Communal Action Councils (JAC, Juntas de Acción Comunal). In urban areas, organised crime groups also exert social control through extortion, recruitment of children, sexual violence, and confrontations between groups.
…
All main armed groups retain a capacity to engage in sub-contracting to smaller local groups, depending on the region and the interests at stake in order to expand their influence. According to Indepaz, in 2021-2022, outsourcing as a strategy for territorial control has continued. Local armed structures, generally in urban areas, have been threatened due to leveraging outsourcing of criminal activities by criminal groups with national reach.
…
With FARC-EP’s demobilisation in 2016, male and female former combatants who laid down their weapons continue to face ‘persistent violence’ such as threats from armed groups, security threats and attacks, and other problems such as co-opting of economic projects and sabotaging of their political and social initiatives.
…
Sources indicate that illegal armed groups expand their presence and influence through sub-contracting to smaller groups and criminal outfits, as well as operating internationally due to participation in international criminal networks. Sources consulted by the Immigration and Refugee Board of Canada (IRB) stated that ‘criminal groups are “definitely” able to track targeted individuals’. The sources indicated this mainly happens through word-of-mouth and country-wide networks of ‘urban collaborators’ or hiring local urban contacts. Regarding whether there was variation in the capacity of various armed actors to conduct such tracking, such as larger versus smaller groups, two sources gave similar views that while almost all armed groups and dissident groups can [track and trace targets], generally, the more national the group, the more likely it is for them to trace someone. Hence a FARC dissident faction, the ELN, or the AGC would be better able to do so than a local delinquent organisation. It does however not rule out that a small group could track someone, particularly because many of these smaller gangs are contracted by larger organisations and hence have access to the extended national networks. Similarly, the Political Analyst remarked that the AGC or ELN are more likely to be able to carry out coordinated actions, while smaller groups in remote communities would have a more limited scope. However, the source stated that if a group has identified a specific individual as a target, they have the capacity within their criminal networks to effectively carry out a threat. The source stated that ‘it is very difficult to know the extent to which armed groups are capable of scaling up their targeting capacity from a local area to an urban centre.’
…
Victims of extortion receive threats (house visits, letters, phone calls, social networks, visits to home or work), or may be kidnapped for the purpose of extortion. Failure to pay extortion can result in death. Few victims are willing to report extortion to authorities reportedly due to lack of trust in authorities or fear of being killed. Reporting to police can make the situation worse if extortionists find out. The Political Analyst observed that extortion practices that lead to violence often thrive in environments where the state is absent and the government fails to regulate the informal sector.

The Tribunal considers these messages contain some ambiguity. The applicant confirmed that she has not tried checking with anyone she knows whether her mother is in fact deceased. Further, as put to the applicant, her mother’s social media shows it continues to be actively used, past October 2018. When the Tribunal put this to the applicant in the hearing she did not appear to register surprise or hope. There is also no indication from any of the applicant’s family’s social media accounts that the applicant’s mother died in or round October 2018 and they appear to continue to interact with the applicant’s mother after this time.
In view of the ambiguity in the messages, the lack of any other indication the applicant’s mother has died, and the indications that she is still alive, the Tribunal considers that the applicant’s stated belief that her mother has died is not correct.
There is also little support for the applicant’s claim that her mother fled from Bogota to Cartagena in May 2017. The Tribunal accepts she did make the journey but there is no indication that it was done because of fear of harm. The applicant’s suggestion that her mother was fled because she and the applicant were in contact regarding financial support lacks plausibility. There is also no actual trigger for her mother to believe she was in danger at the time. Further, the applicant had been outside Colombia for almost two years and there is no apparent reason why FARC would threaten her mother then in relation to the applicant.
As the applicant stated her mother and father had separated many years ago and she primarily resided in the border town of [Department 1], just visiting Bogota from time to time. Further, according to her father’s Victims’ registration document his problems occurred in [Town 4] in the latter part of 2017 and he initially moved to Bogota for his safety. There is no evidence of a trigger to prompt the applicant’s mother’s flight from Bogota in May 2017. There is also no indication that she does not continue to reside in [Department 1].
The Tribunal therefore does not accept that the applicant’s mother was forced to flee Bogota in May 2017 because of the applicant’s or her father’s problems with FARC or other groups in Colombia.
Estrangement from Family
Throughout much of the review process there were unexplained gaps in the applicant’s information which may have been readily filled by information from her family. These gaps were about very serious issues, such as the possibility of her mother’s death, and it was unclear why the applicant would not simply know the information or find out the information by speaking with her family. She initially gave vague responses about starting an independent life in Australia, losing contact with her family, and that they did not speak with her due to concerns for their safety. Late in the review process the applicant provided more detailed information about her estrangement from her family which resulted in them ceasing communication with her. Her written statement in this regard was detailed and emotive. The report from her treating psychologist at the time also provided clear support and detail regarding this aspect of the applicant’s past. The Tribunal acknowledges that these are personal and distressing family issues that the applicant would be naturally reluctant to share with others. In view of this information the Tribunal accepts that the applicant became estranged from her family in Colombia and has very little contact with them and very little or no support from them.
Fear of Harm in Colombia
The Tribunal has accepted that the applicant worked as a project manager for [Project type] in regional Colombia; that she was approached by a FARC member in [Town 1] in June 2013 in relation to an environmental management project she was trying to initiate there; that the applicant’s father, mother, brother [Mr J] and the applicant were registered in a government Victims’ protection scheme in April 2018 due to her father’s activities in Colombia; that her father has subsequently disappeared; and that the applicant is estranged from her family in Colombia.
The applicant will therefore be returning to Colombia as a single woman with a minor child, who has no family support there, who has worked and has expertise in managing regional [Project type], who was registered with the Victims registration unit in 2018 as being in need of protection, with a father who has been threatened and attacked by armed groups for his political activities following the peace agreement.
Given the applicant’s work history and area of expertise the Tribunal considers there is a real likelihood that the employment the applicant will be able to obtain on return to Colombia will again involve regional environmental development projects. The above country information, including DFAT’s current advices, indicates that violence and criminal activity in Colombia is on the increase. DFAT’s brief also refers to the targeting of infrastructure in Colombia and dangers travelling within the country. The 2022 OHCHR report similarly refers to the increase in violence and describes armed groups threatening “individuals who ignore their demands” and restricting and controlling “productive activities”. The 2022 EUAA report speaks of the armed groups vying for “social, territorial and strategic control” using “violence against civilians”, with “the violence and coercion as bad or worse than before the peace agreement.” The report emphasises that armed groups’ objectives are to control land, communities and commerce, “operating through networks of opportunism”. They “achieve control … through intimidation” and co-option including “co-opting of economic projects and sabotaging of [former combatants’] political and social initiatives”.
Two of the above reports, MacEwen (2019) and Morales (2017) emphasise the connection between the environment and the armed conflict in Colombia describing it as “deeply interwoven and complex” and “deeply intertwined” with the war determining “how land has been defined, occupied and utilized”.
In such a setting the applicant’s work on regional environmental development projects would likely expose her to intensified adverse interest by an armed group or criminal gang with local power. She would be vulnerable to threats, intimidation and coercion to promote the interests of the group or gang, and liable to violence if she does not accede to their demands.
The Tribunal notes that her work situation would be similar to how it was before she departed Colombia and that in her final two years there she did not experience further problems from the main armed group at the time, FARC. However this was during the peace negotiations which reportedly was a time of decrease in conflict violence. Further, since her departure the number of armed and criminal groups and their areas of operation have increased dramatically, commonly without a level of central control to rein in excesses or maverick activities. The Tribunal considers that the likelihood of the applicant attracting the interest of such a group through her work, in the current security situation in Colombia, creates a real chance that she would then be targeted. While the chance may not be high the Tribunal considers it is more than remote.
The applicant’s vulnerability is heightened to some degree by her situation as a single mother without family support, with a father who already has an adverse profile, her family’s listing on the victims register, and herself having come to the prior attention of FARC in [Town 1] in 2013.
There is some question whether the applicant could avoid the risk of harm by not pursuing regional environment project work in Colombia. However given the level of poverty and inherent limited employment options in Colombia the Tribunal considers it would be prohibitively difficult for the applicant to find suitable employment outside her field of expertise and career experience, despite her potential efforts to do so. The applicant gave evidence, which the Tribunal accepts, of her failure to obtain alternative work in Colombia following the initial contact from FARC, despite her efforts to do so. The Tribunal therefore consider it is highly likely she would need to resort to work in her previous area of expertise, namely regional environment development projects, in order to support herself and her son in Colombia.
In view of the above the Tribunal is satisfied there is a real chance the applicant will be subjected to serious physical violence including being killed, intimidated and threatened with serious physical violence by an armed group or criminal gang in Colombia, now or in the reasonably foreseeable future.
Reason for fear of harm
The harm feared by the applicant in Colombia is not for reasons of the applicant’s race, nationality, or religion. The only possible refugee definition grounds for the harm feared by the applicant would be political opinion and particular social group, based upon her refusal to do what a group wanted and/or her occupation. While these aspects may play some part the Tribunal does not consider either of them would be the essential and significant reason for an armed group or gang to act against the applicant. Most of the available information indicates their actions are largely opportunistic motivated primarily by economic and control interests. They would not necessarily care about the applicant’s opinion or occupation but rather the use she could be to them and what they could gain through her. The Tribunal is not satisfied that any of the grounds in the refugee definition are the essential and significant reason for the harm the applicant fears in Colombia.
The Tribunal is therefore not satisfied the applicant has a well-founded fear of persecution in the Colombia as defined by s.5J of the Act. She therefore does not satisfy the criterion in s 36(2)(a).
Complementary Protection
The Tribunal is satisfied there is a real chance the applicant will face serious physical violence including being killed, intimidation and threats of serious physical violence from an armed group or criminal gang, on return to Colombia. The Tribunal considers such harm to involve being arbitrarily deprived of her life and/or to be cruel treatment in that severe pain or suffering would be intentionally inflicted upon her. The Tribunal is therefore satisfied it amounts to significant harm as defined in s 36(2A) and s 5(1) of the Act.
The Tribunal notes the above country information that people of adverse interest to an armed group or gang can be located and harmed if they move to a different part of Colombia. For example the 2022 EUAA report refers to the armed groups and gangs being “definitely able to track targeted individuals” and having “the capacity within their criminal networks to effectively carry out a threat”. The Tribunal also notes DFAT’s report that travel within Colombia is currently “dangerous”. In such circumstances the Tribunal considers that if the applicant tries to leave an area where she is under direct threat she can be harmed during her travel to a different region, or located and targeted in a different region. The Tribunal therefore considers that the risk to the applicant extends to all parts of Colombia so that there is not an area she could relocate to where there would not be a real risk of significant harm.
The available country information also highlights that violence and criminal activity in Colombia is increasing and that the state is not trusted to be able to provide protection to the civilian population. The Tribunal therefore is not satisfied that the applicant could obtain from an authority of the country, protection such that there would not be a real risk that she will suffer significant harm.
The risk to the applicant is one that would be faced by the applicant personally in that it attaches to her specific presence and role. The Tribunal is satisfied that it is not a risk faced by the population of the country generally.
On the basis of the above findings the Tribunal is satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Colombia, there is a real risk that the applicant will suffer significant harm.
Section 36(3)
The Tribunal now considers whether s 36(3) applies to the applicant.
The Mercosur agreement, initially between Argentina, Brazil, Paraguay and Uruguay, has as its objective a common market allowing for the free movement of goods and services, a common trading position in relation to third states, and the harmonisation of laws relating to trade between the states.[10] Colombia is an ‘Associated State’ of Mercosur, meaning it has signed a free trade agreement with Mercosur and which allows Colombia to participate in meetings that deal with issues of common interest.[11] As an associate member to Mercosur, Colombia has the same relocation and residency rights as a full state member. This is established through the decision of the Council of Common Market (CMC) decision No 28/02, of which CMC decision No 20/12 ratified that Colombia was also to be treated under the same agreement. This agreement being the "Agreement on Residence for Nationals of the Mercosur States Parties, Bolivia and Chile", signed on December 6, 2002.
[10] See Objetivos del MERCOSUR - MERCOSUR, See Países del MERCOSUR - MERCOSUR, >
However, available country information indicates the situation can be different in practice:
With regard to implementation of the agreement, the 2014 IOM report highlights several problems for certain countries. These include lack of administrative resources to deal with applications, introduction of additional requirements not included in the original agreement, or lack of information generally available to those who could benefit from it. Moreover, the agreement has not been implemented consistently in each country. Unlike free mobility in the European Union, where EU law supersedes national law, the Mercosur agreement is an international treaty implemented by individual countries for themselves. For example, although Chile has received a large number of regional migrants from Ecuador, Peru, and Colombia, it does not apply the agreement to nationals of these countries. Argentina, by contrast, extends the agreement to all other 11 countries in South America, including those that have yet to implement it: Guyana, Suriname, and Venezuela. In turn, Uruguay directly grants permanent residency to those applying for a permit, rather than first offering a two year temporary one. Finally, the agreement mentions the right to equal treatment with regard to social, cultural, and economic rights but does not further define this. Consequently, discrimination with regard to aspects such as welfare benefits is common.[12]
[12] Acosta, D., ‘Free Movement in South America: The Emergence of an Alternative Model?’ Migration
Policy, 23 August 2016.
The report also refers to the OECD noting that ‘implementation of the residence agreement is not entirely uniform across Mercosur countries’:
Some impose higher permit fees, some offer better conditions than the residence agreement, and other apply it only to nationals of a reduced group of countries. Recently, Colombia suspended Mercosur visas and permits for nations of Venezuela, in retaliation for the fact that no such permits were being issued to Colombians by Venezuela.[13]
[13] Acosta, D., ‘Free Movement in South America: The Emergence of an Alternative Model?’ Migration
Policy, 23 August 2016.
It has also been noted that in terms of the agreements themselves, ‘a Mercosur national does not have an enforceable right to movement, which will be protected by an extensive supranational court system, the right is discretionary, dictated by the will of home and host States.’[14]
[14] Rust, K., “Tracing Root of Movement Rights: EU and Mercosur’, European Law blog, 16 September
2019,
Therefore, although formally the Mercosur agreement allows an associate member state, such as Colombia, free movement of their nationals to other member states, the practical limits on such movement mean that the applicant’s ability to enter and reside in another country is arbitrary and limited in practice. The Tribunal is therefore not satisfied that the applicant has a clear and current right to enter and reside in any of the other Mercosur member countries.
There is no evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds she has no such right and that she is not excluded from Australia’s protection by s.36(3) of the Act.
Second named applicant
The second named applicant did not directly raise any claims to fear harm in Colombia in the applicants’ Protection visa application. His mother, the first named applicant, stated that she departed Colombia because of her fears for her son. She claimed to fear that FARC would harm her son as a reprisal for her refusal to do what they wanted. The Tribunal has not accepted that the applicant was of ongoing adverse concern to FARC at the time. It follows that the Tribunal does not accept her son, the second named applicant, was at risk of harm from FARC when he departed Colombia.
There is also no indication that the second named applicant has a profile that would be of interest to an armed group or criminal gang. He is a teenager going to school and pursuing [an Activity]. It may be that his connection to his mother may expose him to a risk of harm if he was to accompany her in her regional work. However there is no clear evidence to indicate this would happen. The Tribunal finds it highly speculative and a remote risk.

100. No other claim to fear harm in Colombia was presented by or on behalf of the second named applicant. The Tribunal is therefore not satisfied that there is a real chance he will face serious or significant harm on return to Colombia.
Conclusion
101. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa).
102. The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that he is the minor son of the first named applicant and is a member of the same family unit as the first named applicant for the purposes of s 36(2)(c)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s 36(2)(c)(ii) and the remaining criteria for the visa are met.
DECISION
103. The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Melissa McAdam
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 2816

5 June 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice