1722329 (Refugee)

1722329 (Refugee) [2023] AATA 1727 (15 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Raymond Charles Turner
CASE NUMBER:  1722329
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Luke Hardy
DATE:15 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 February 2023 at 11:00am
CATCHWORDS
REFUGEE – protection visa – Colombia – particular social group – persons born abroad or persons who speak English or persons who do not speak Spanish – threats of harm by Revolutionary Armed Forces of Colombia (FARC), FARC dissident groups, and/or criminal Venezuelan migrant and asylum seekers – effects of anxiety disorder – access to healthcare – fear of kidnapping and ransom – risk of Covid-19 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
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
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [named], is a [age] year-old citizen of Colombia who was born in Australia in [year]. She applied for the visa on 14 July 2016 with her parents lodging the application on her behalf. The delegate refused to grant the visa on 7 September 2017.
The applicant’s parents, [Mr A] and [Ms B], appeared before the Tribunal on 7 February 2023 to give evidence and present arguments on her behalf. [The applicant] was represented in relation to the review by an adviser attended the Tribunal hearing. An associate of the adviser also attended with the permission of [Mr A] and [Ms B].
The Tribunal hearing was facilitated by an interpreter in the Spanish- English medium.
For the purposes of the review, [the applicant] submitted a copy of the delegate’s decision in this matter. That decision includes a summary of critical issues raised and considered. It also refers to the unsuccessful PV application made by [the applicant]’s parents.
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 (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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.
CONSIDERATION OF Claims and evidence
The issues
The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims
[The applicant] essentially claims she will suffer serious harm in the event of the insurgent Revolutionary Armed Forces of Colombia (FARC) or persons formerly associated with FARC harming her parents. In making this claim she appears to rely on the claims her parents made in their own PV application.
[The applicant] claims fear of being persecuted by armed groups that refused to enter into the 2016 Peace Accord with the Colombian government. These are commonly called “FARC dissident” groups. [The applicant] claims fear of being kidnapped, tortured or killed by such groups.
[The applicant] claims fear of being persecuted or significantly harmed by criminal elements within the Venezuelan migrant and asylum seeker influx into Colombia in recent years. In an oral submission from her adviser, it was asserted that Venezuelans have effectively taken over from the former FARC in terrorising the country’s urban population.
On account of diagnosed “anxiety disorder” [the applicant] claims that return or removal to Colombia will be so traumatic as to damage her mental health seriously.
[The applicant] claims she will not be able to access adequate free healthcare in Colombia.
[The applicant] is already twice vaccinated against Covid-19. She claims that Colombia’s national response to Covid-19 is chaotic, disorganised and inadequate. She claims to fear catching Covid-19 from unvaccinated Venezuelan migrants and asylum seekers who inhabit Colombia in great numbers and under poor living conditions.
[The applicant] claims she will suffer intimidation for reasons of being a member of a “particular social group” defined as “persons born abroad” or persons who speak English” or “persons who do not speak Spanish.”
[The applicant] claims she will suffer serious harm because she and her parents will be misjudged to be “rich people” purely on account of having lived abroad, and in Australia in particular, for several years. The harm feared is described as “kidnap and ransom.”
[The applicant] claims she cannot safely relocate because “violence is all over Colombia” or avail herself of effective state protection because “the government of Colombia has not been able to control [armed groups] or protect [the] people.”
[The applicant]’s PV application includes a number of attached documents, so purporting to be evidence of her father and his step-father having reported to Colombia’s “national victims’ register.” (See below.) There are also a number of news reports about FARC activities that were current as at mid-2016.
Independent country information
I note that FARC disarmed and surrendered its weapons to the United Nations , on 27 June 2017, pursuant to a 12 November 2016 peace deal with the Colombian government. This was essentially the end of the civil war. FARC then proceeded to regroup as a legal political party, known as the Common Alternative Revolutionary Force; this was in accordance with the same peace agreement. However, a small runt of about 2,000 FARC dissidents continued to engage in fundraising through drug trafficking and announced a return to armed activity on 29 August 2019. The Colombian government responded with offensive strikes, killing many of these splinter-group FARC members and would-be leaders to prevent expansion and rearmament.[1]
[1] "Colombia signs new peace deal with FARC," BBC News, 24 November 2016; "After decades of war, Colombia's FARC rebels debut political party," Reuters, 27 June 2017; "Peru arrests more than 50 in anti-drug bust at Colombian border," Reuters, 16 July 2018; "9 Colombian FARC dissidents killed in bombing raid," Al Jazeera, 31 August 2019.
I note that FARC’s former leaders publicly apologised to the population of Colombia in 2016 for past crimes including kidnappings.[2] Former FARC leaders again formally apologised to the people of Colombia in September 2020:
“We want to say that kidnapping was a huge mistake, that we can only regret what we did,” said Rodrigo Londoño - a former leader of the now demobilized FARC (Revolutionary Armed Forces of Colombia) guerrilla army.
“Kidnapping only left profound wounds in the souls of those who were affected and destroyed our legitimacy and credibility.”
Finally, after decades of civil war, former FARC leaders are appearing before judges of a special court set up to hold them responsible for their crimes. The court was created as part of Colombia’s 2016 peace agreement between the then-rebels and the government of then President Juan Manuel Santos as part of a transitional justice scheme to end the civil conflict. By submitting to the court, ex-FARC members and other war criminals can confess their crimes in exchange for a reduced sentence.
But since the agreement was signed, former guerrilla commanders have been reluctant to recognize their crimes, something that has long been resented by the families of victims.
“This is a big first step in the right direction,” says Kyle Johnson, co-founder and researcher at the Bogotá-based Conflict Responses Foundation, a non profit that focuses on peace implementation and environmental conflict. “They’re recognizing this caused severe harm in people’s lives. But there’s still a long road ahead. A lot of victims want the truth, not just an apology.”
Colombia’s armed conflict began as a peasant rebellion in the 1960s when farmers built an anti-government self-defense force. In the 1980’s, the FARC adopted drug-trafficking as a way to finance its struggle. By the 1990s, the conflict escalated further when paramilitaries (many of them connected to the government) formed to combat the guerrilla army, and they too joined in the cocaine export craze.[3]
[2] “Colombia’s Farc rebels apologize for 'great pain' caused by kidnappings,” The Guardian, 13 September 2016,
[3] “Colombia’s Former FARC Rebels Finally Apologize for War Crimes Like Kidnappings and Forced Abortions,” VICE World News, 17 September 2020,
These apologies were reportedly reiterated before a specially-appointed state commission August 2021:
Two of Colombia’s most prominent ex-rebel and paramilitary group leaders apologised to victims on Wednesday as part of a commission designed to unravel the complicated truths behind the country’s decades-long civil war.
While the testimonies were considered a crucial step as Colombia struggles to grapple with past bloodshed, they also left many of the more than nine million victims of the conflict with a sour taste in their mouths…
The two leaders expressed remorse to victims on Wednesday while testifying before Colombia’s Truth Commission
The Truth Commission was born from a 2016 peace pact struck between the Colombian government and the FARC. It was created to investigate war crimes committed during the armed conflict as part of an effort to help victims heal ... [4]
[4] “Colombia’s ex-armed group leaders apologise for war atrocities,” AlJazeera, 4 August 2021,
The current government of Colombia, elected in August 2022, is a reportedly “progressive” centre-left one led by President Gustavo Petro which reportedly remains committed to implementing prior peace accords.[5]
[5] “Colombia’s New Administration Raises Hopes for ‘Total Peace’,” USIP, 12 July 2022,
FARC has evidently been greatly diminished in Colombia over the last six years, to the point of having been virtually wiped out, reportedly through actions fair and otherwise[6]. Former FARC leaders recently gave a formal and public apology for past exercises in kidnapping and extortion:
Former commanders of the now disbanded Farc rebel group in Colombia have for the first time issued an apology for the kidnappings they carried out during the armed conflict.
A commission investigating crimes committed during 52 years of violence has promised more lenient sentences to those who admit wrongdoing.
Eight commanders called the kidnappings an "extremely grave mistake" and acknowledged the pain they had caused.
A peace deal was signed in 2016.
Thousands of people were kidnapped by the Revolutionary Armed Forces of Colombia (Farc) rebel group over the decades. Some were freed after ransom was paid, others were held for years, sometimes chained to trees, and some were killed or died in captivity …[7]
[6] Ibid.
[7] “Colombian ex-Farc rebels 'ashamed' of kidnappings,” BBC News, 16 September 2020,
Concurrent with the dissolution of the armed wing of FARC, many of Colombia’s paramilitaries have also largely disbanded, with the exception of some diminished groups operating drug trafficking operations, mostly in the countryside and the mountainous region bordering with Venezuela.
I have had regard to the following 2022 report[8] about armed groups in Colombia, operating mainly in rural and remote areas, and including former FARC brigades as well as criminal cartels like Los Rastrojos that used to enjoy protection from FARC and also from state forces from time to time:
[8] “Rastrojos,” Insight Crime, updated 20 July 2022,
The Rastrojos first emerged in 2002 as the armed wing for Wilber Varela, alias “Jabon.” At the time, Varela was fighting a rival in the Norte del Valle Cartel, Diego Montoya, alias “Don Diego,” and Montoya’s private army, the “Machos.” …
However, the group imploded in 2012 with the fall of three of its main leaders … leaving the group with no clear leader. In further blows to the group, the US Treasury Department placed sanctions on the Rastrojos under the Kingpin Act in early 2013, while one of the group’s key hitmen operating in Cali was captured in Ecuador in August 2013.
Nonetheless, the group has continued to operate in smaller, localized cells throughout the country, but particularly in their strongholds of Valle del Cauca, Nariño and Norte de Santander, as well as in Ecuador.
In February 2017, Luis Enrique Calle Serna was sentenced to nine years in prison by a US court just a few days after the release of another of Comba’s brothers, Juan Carlos Calle Serna, by Colombian authorities…
The Rastrojos were internally divided even before the loss of [several leaders]. The loss of these bosses has left the group without a clear leader, which has in turn caused it to lose membership...
At the peak of their criminal activity, the Rastrojos differed from other Colombian criminal groups in that they did not necessarily seek to control every part of the drug distribution chain, operating instead via strategic alliances. These alliances included working with rebel groups and former right-wing paramilitaries to move their product.
For several years, the Rastrojos had an agreement with the National Liberation Army (ELN) in the provinces of Cauca and Nariño and the Revolutionary Armed Forces of Colombia (FARC) in certain other parts of the country. Both these alliances gave the Rastrojos direct access to coca base -- the raw material for cocaine -- at very low prices.
The Rastrojos' other main ally, El Loco Barrera, had struck similar agreements with the FARC in some areas prior to his capture in Venezuela in September 2012. Together the Rastrojos and Barrera obtained a huge competitive advantage, one that also led to strong partnerships with Mexican cartels.
After the resurgence of the group in Norte de Santander, the Rastrojos maintained an alliance with the Popular Liberation Army (Ejército Popular de Liberación - EPL), this consisted of non-aggression agreements that provided both groups with access to criminal economies along the border. But that alliance seems to have broken after the certain blows to the Rastrojos.
After losing their former ally, the Rastrojos turned to their former enemies, the Urabeños, in 2021, to join forces and confront the ELN in Norte de Santander. While the joint work continues, the Rastrojos remain weak.
Despite this, the group has managed to maintain alliances with other criminal actors such as the Tren de Aragua. Both groups are involved in human trafficking on the Colombia-Venezuela border.
The Rastrojos have been at odds with the ELN for several years. The ELN has sought to gain territory in key areas for criminal rents in Norte de Santander. This war, along with the blows dealt by the authorities and the FANB, has led the Rastrojos to a critical state. The group may even be on the verge of disappearing …
This information is confirmed by other sources.[9] A 2018 Refworld report states that by 2017, the Rastrojos drug cartel, a FARC “dissident” (or remnant) group, was reduced to only 310 members and dependent on alliances with paramilitary groups in order to continue its drug trafficking.[10]
[9] “Rastrojos,” Colombia Reports, 16 September 2019,
[10] Canada: Immigration and Refugee Board of Canada, Colombia: The presence and activities of Los Rastrojos, including in Buenaventura; information on their relationship with the Gaitanist Self-Defense Forces of Colombia (Autodefensas Gaitanistas de Colombia, AGC) [also known as Gulf Clan (Clan del Golfo) or Úsuga Clan (Clan Úsuga), and formerly known as Los Urabeños]; state response (2017-April 2018), 17 April 2018, COL106086.E, available at:

I note that the Norte del Valle cartel was taken down in 2012, with only a few infighting splinter groups remaining after that, all primarily involved in drug trafficking:
Although the NDVC’s leadership structure has effectively been dismantled, the cartel’s legacy lives on. Aside from the still feuding Rastrojos and Machos, former NDVC operators, including the now returned El Quimico, continue to be influential figures in the Valle del Cauca underworld while others reportedly operate from other countries such as Bolivia and Argentina.
The cartel’s operations have also helped establish a number of trafficking routes that are still in use today, especially the use of high-speed and fishing boats to take cocaine shipments from Colombia’s Pacific coast to Mexico, where they would be collected by Mexican allies, principally the Beltran Leyva Organization — the former armed wing of the Sinaloa Cartel — who moved it on to the United States.[11]
[11] “Norte del Valle Cartel,” Insight Crime, 17 November 2015,
A November 2020 AlJazeera report[12] on “FARC dissident” violence in rural areas describes how these groups vie against each other for control of coca crops and illegal mining territory. The same report says that as at 2020, the ELN group in Colombia had 3,000 active fighters. This report mainly concerns itself with failures of the previous government in bringing these groups into the peace process.
[12] “Four years after FARC peace deal, Colombia grapples with violence,” AlJazeera, 24 November 2020,
A 2021 report[13] from CNN acknowledges FARC’s “shift away from … more than 50 years of armed conflict” and its integration into the democratic political process.
[13] “Colombia’s FARC party is changing its name to ‘Comunes’,” CNN, 27 January 2021,
Killings by armed groups in Colombia in 2021 are detailed in a January 2022 WOLA report.[14] Some of these are attributed to splinter groups descended from FARC (and described as “FARC dissidents”) after the Peace Accords; some not:
The security situation in Colombia deteriorated alarmingly in January 2022. As of January 31, the Institute for Development and Peace Studies (Instituto de estudios para el desarrollo y la paz, INDEPAZ) has recorded a total of 13 social leaders murdered, 13 massacres, 3 ex-combatants killed, 214 selective homicides, 98 death threats, 58 homicide attempts, 25 episodes of harassment, 17 forced disappearances, and 16 mass internal displacements. While violations are occurring in multiple areas, the departments of Arauca, Cauca, Valle del Cauca and Putumayo appear to be flashpoints. In the case of Arauca, the violence and displacement are due to the breaking of the truce that existed between the ELN and FARC. The FARC dissidents and ELN are engaged in armed combat with each other and as a result are taking it out on the civilian population, particularly social movements. WOLA, along with other international organizations working in and on Colombia, issued statements condemning the violence in Arauca and Cauca.
[14] “Colombia Begins 2022 with Alarming Violence,” WOLA, 31 January 2022,
I have had regard to a 2 January 2023 piece from Colombia Reports, which refers to small improvements in the situation since the August 2022 election of Gustavo Petro:
The mass killing of social leaders continued in 2022 despite government efforts to increase their protection and reduce violence in general.
According to think tank Indepaz, 189 community leaders and human rights defenders were assassinated last year against 171 in 2021.
The registered assassinations took place throughout Colombia, according to Indepaz’s registry of violence related to Colombia’s armed conflict.
With the exception of October, when 20 social leaders were assassinated, the deadly violence reduced significantly after President Gustavo Petro took office in August.
The Petro administration has been gradually implementing its “Total Peace” policy, which includes negotiations with the illegal armed groups suspected of most of the killings.
In December, guerrilla group ELN and the main groups by the now-defunct guerrilla group FARC upheld a unilateral ceasefire, according to the president.
According to Indepaz, 11 social leaders were assassinated last month, including in areas presumed to be under control by these guerrilla groups.
In Buenaventura, the assassinations of urban social leaders apparently ended after a ceasefire by urban gangs that control the Pacific port city.
This ceasefire is one of the “Total Peace” initiatives promoted by Petro and the Catholic Church to reduce violence.
The government also made changes in the organization of the security forces in an attempt to step up the protection of social leaders against violence by illegal armed groups.
The prevention of violence against social leaders was already a priority in an ongoing peace process that followed an agreement with the FARC in 2016.
Between that year and 2022, more than 1,550 community leaders and rights defenders were assassinated, according to Indepaz.
A 28 September 2022 Reuters report[15] says that ten armed “dissident” groups agreed to a unilateral ceasefire:
At least 10 armed groups in Colombia, including former members of the FARC rebels who reject a peace deal and the Clan del Golfo crime gang, have agreed to participate in unilateral ceasefires, the government said on Wednesday.
President Gustavo Petro, who took office in August, has promised to seek "total peace" with armed groups, fully implementing a 2016 peace accord with the Revolutionary Armed Forces of Colombia (FARC) and meeting with dissidents and gangs.
"Each group with its own identity, nature and motivation is expressing its disposition to be part of a total peace, in this exploration phase we've asked them not to kill, not to disappear people and not to torture," Danilo Rueda, the government's high peace commissioner, told journalists at an impromptu press conference. "We are moving ahead."
Among the groups are two FARC dissident groups - the Estado Mayor Central and Segunda Marquetalia - as well as the Clan del Golfo, the Sierra Nevada de Santa Marta Auto-Defenses and others Rueda did not name.
Illegal armed groups in Colombia - whose six-decade conflict has killed at least 450,000 people - count some 6,000 fighters in their ranks, according to security sources.
Leftist rebels and crime gangs both participate in extortion, murder, drug trafficking and illegal gold mining.
Petro - himself a former member of the urban M-19 guerrilla - has said his government could offer reduced sentences to gang members who hand over ill-gotten assets and give information about drug trafficking.
"The office of peace is exploring the judicial mechanisms to permit the transition of armed groups to rule of law," said Rueda, who previously met with FARC dissidents.
[15] “Colombia says 10 armed groups agree to unilateral ceasefire,” Reuters, 28 September 2022,
Of particular interest in the preceding report is the fact that illegal armed groups throughout all of Colombia reportedly only number around 6,000 persons.
A 3 January 2023 article[16] in Semana describes state forces clashing with FARC splinter activists in rural areas like Valle del Cauca. The article describes an increase in state forces deployed to the region and reports the success of similar initiatives in other rural areas where criminal gangs have tried to control similar economies.
[16] “Concern in Valle del Cauca for the Growth of Dissident Structures of the Farc,” Semana, 3 January 2023.
I note that, several years ago, the Colombian government established a “Unique Victims Register” or “Single [or Sole] Registry of Victims” of internal armed conflict in Colombia to respond to complaints by citizens adversely affected by the country’s half-century of virtual civil war.
According to the English version of the Colombian government website[17], applications are made to the Public Prosecutor’s Office, which is within the aegis of the Attorney General’s department, known as the Fiscalía. The website provides the following information about applications for inclusion in the register (boldface as in the original:
[17] “Application for registration in the single registry of victims,” GOV.CO,
Application for registration in the single registry of victims
It is a statement that must be submitted by all those persons who consider themselves victims of armed conflict in Colombia, in which they must provide all the information required in a format designed for that purpose and tell in detail the circumstances of time, manner and place in which the victimizing facts occurred.
What is processed or what service is provided?
Article 155 of Law 1448 by which measures of assistance and integral reparation are dictated to the victims of internal armed conflict and other dispositions are dictated, establishes that those who consider themselves victims of conflict must present a declaration before the Public Prosecutor's Office.
Who is targeted?
Population victim of the conflict
When is it done?
The victim (s) must declare at the moment they suffer the victimizing event; however, it is important to bear in mind that if the victimizing event(s) occurred (occurred) between January 1, 1985 and June 10, 2011, they may submit their declaration until June 10, 2015, likewise if the fact(s) were presented (submitted) after June 10, 2011, they will have two years to declare, these two years will be counted from the moment in which the events occurred.
How is the service processed or provided?
To present the application for registration in the Victims Registry, people must appear before an office of the Public Prosecutor's Office (municipal representatives, regional ombudsmen and provincial or regional attorney offices) and tell the official who attends the circumstances of time, manner and place. that originated the facts victimizing him and his family group. This information will be recorded in the unique declaration form that signature and footprint [sic] of applicant must bear [sic] and the signature of the official who attends it.
It is necessary that the information collected through this form be as complete and accurate as possible in order to make a correct and timely assessment which determines the registration or not of the victims to the Single Registry of Victims.
It is not mandatory to submit documentation when submitting your declaration, in the following link you will find the step by step for the registration.
Where is the service processed or provided?
In any office of the Public Ministry: Regional and Provincial Ombudsman. Most attend from 8 AM to 5 PM, but you can get more information by going directly to some of them ...
Additional Information.
The application for registration in the Victims Registry is a free procedure and does not require intermediaries. In the same way, the Unique Declaration Form used for this purpose is distributed by the Victim Integral Assistance and Reparation Unit to the offices of Public Ministry, completely FREE.
If you require additional information contact the telephone hotlines are in Bogota 4261111 and toll-free National is 018000911119.
Normativity
Articles 155 and 156 of Law 1448 of 2011. "By which measures of attention, assistance and integral reparation are issued to victims of the internal armed conflict and other provisions are issued."
Maximum response time
In accordance with previous regulations, the unit will have 60 working days to evaluate and make the decision to include or not in the sole Registry of victims the applicant and his family group.
According to this website, “integral repair” or “reparation” does not necessarily involve individual financial compensation.[18]
[18] see also “REPARATIONS IN COLOMBIA: WHERE TO?
I have had regard to the International Crisis Group’s report, Hard Times in a Safe Haven: Protecting Venezuelan Migrants in Colombia (Latin America Report N°94, 9 August 2022).[19] This report examines in detail the plight of Venezuelans who have fled socio-economic and political strife in Venezuela only, in many cases, to be co-opted into criminal life in Colombia due to lack of access to food, employment and shelter. The report describes how some Venezuelans find themselves drawn into the drug trade and accept assassination contracts from Colombian gangs for a fraction of the fees Colombians would charge each other. The report describes how Venezuelans are preferred as they draw police attention away from Colombian gangsters and sicarios (hitmen), due to their greater willingness to hide out on the Venezuelan border until Colombian police attention wanes. Further, the report describes how Venezuelans caught up in the Colombia underworld have short life spans, as they are typically murdered when they become less useful or over-exposed, their killers seldom facing justice due to the victims having little to no standing in Colombia.
[19]
I have had regard to the following 2021 report[20] from the Borgen Project, an international NGO concerned with alleviating mass poverty, notwithstanding its apparent optimism about hoping to achieve “herd immunity” to Covid-19:
[20] “7 Key Facts about Healthcare in Colombia,” The Borgen Project, 26 February 2021,
Colombia’s healthcare system is not perfect but it also far from inadequate. Located in the northernmost part of South America, Colombia has estimable healthcare provision for the country’s people. With both public and private insurance plans, reputable facilities and well-equipped healthcare providers, Colombia sets an example of what sufficient healthcare looks like in a developing country. To understand this better, it is necessary to know some key facts about healthcare in Colombia.
7 Facts About Healthcare in Colombia
Healthcare in Colombia ranked 22nd out of 191 healthcare systems in overall efficiency, according to the World Health Organization. For perspective, the United States, Australia, Canada and Germany ranked 37th, 32nd, 30th and 25th respectively.
Colombia’s healthcare system covers more than 95% of its population.
Indigenous people are considered a high-risk population due to insufficient access to healthcare in indigenous communities in Colombia. Specifically, they are more vulnerable to COVID-19 due to this lack of healthcare access and significant tourist activities in indigenous regions increase the risk of spread. Robinson López, Colombian leader and coordinator for Coordinadora de las Organizaciones Indígenas de la Cuenca Amazónica (COICA), said in March 2020 that tourism in indigenous territories in Latin America should stop immediately to curb the spread of COVID-19.
There are inequities in the utilization of reproductive healthcare by ethnic [indigenous and other minority] women in Colombia, according to a study. Self-identified indigenous women and African-descendant women in the study had considerably less likelihood of having an adequate amount of prenatal and postpartum care.
The Juanfe Foundation is a Colombian-based organization that promotes the physical, emotional and mental health of vulnerable and impoverished adolescent mothers and their children. So far, the organization has supported more than 250,000 people. The Juan Felipe Medical Center served 204,063 individuals — 20% of the population in Cartagena, Colombia. The organization also saved the lives of 4,449 infants through its Crib Sponsoring Program.
In 2019, four of the top 10 hospitals in Latin America were in Colombia and 23 of the top 55, according to América Economía.
Colombia secured nine million doses of the COVID-19 vaccine from Johnson & Johnson in December 2020. Combined with the doses it will receive from Pfizer, AstraZeneca Plc, COVAX and other finalizing deals, Colombia will be able to vaccinate 35 million people within its population of 49.65 million, striding toward herd immunity.
ICRC, however, reports[21] that it has been difficult to deliver health care in a number of identified rural and remote areas where armed conflict continues.
[21] “Colombia: Health Care in Danger,” ICRC, 23 March 2022,
Pre-hearing submissions
Through her adviser, [the applicant] submitted three documents, one of them in two parts, being a report called Inequalities in Health Care for Children and Adolescents in Colombia. The other documents were a report on mental health impacts arising from the Covid-19 pandemic in Colombia and a 26 July 2022 press release from the UN High Commissioner for Human Rights concerning violence perpetrated “by non-State armed groups and criminal organizations in rural areas in Colombia” and the effect this has on vulnerable sectors of society including women and children.
The Tribunal hearing
Speaking on [the applicant]’s behalf, her parents said to me that she is just over [age] years old, attending [grade] in primary school, is a successful pupil and knows nothing of her family’s past problems or even Colombia’s in general because they have always shielded her from bad memories. On the other hand, they said she has diagnosed “anxiety disorder” as found by a named psychologist she has been consulting. No psychologist report was tabled but I accept that [the applicant]’s adviser was reading from a genuine report during the hearing. I asked [the applicant]’s parents how this anxiety “disorder” is manifested and they said that she becomes anxious at the thought of having to leave behind everything she knows in Australia. I asked if this might be an understandable thing for a child to be anxious about rather than evidence of a disorder. In response, it was said that [the applicant] does not speak Spanish and would find it traumatic to have to go and live in a country where she does not speak the national language. I asked both parents how they were certain that [the applicant] speaks and understands no Spanish. In response, [Ms B] said [the applicant] talks to her about having an Australian identity and that she “prefers” to speak English. I asked if [the applicant] might soon enough adapt to Colombia and the Spanish language to some extent in the way that her parents had adapted to Australia, even to a point of preferring when they could to give evidence at the Tribunal hearing in English. [Ms B] said that [the applicant] has a strong relationship with Australia through her school and would suffer psychological harm if removed to Colombia.
[The applicant]’s father, giving background to her claims on her behalf, claimed he was harassed and threatened by FARC in 2002. He said he and his parents suffered pressure form FARC in subsequent years. He also mentioned his parents having had problems with FARC in 2010. [Ms B] said her own cousin’s family suffered extortion demands from FARC and pro-government paramilitaries up to around 2010. She mentioned on her daughter’s behalf that [Mr A]’s family had been included in the national victims’ register.
[Mr A] told me he came to Australia in 2009 and visited Colombia for a month or so to attend his grandmother’s funeral in 2012 and lodged a PV application with [the applicant]’s mother in 2013. I asked him about the decision of the Tribunal in his own application. He indicated that the Tribunal affirmed the delegate’s decision in his and [Ms B]’s case. He said the Tribunal had given weight to his having voluntarily returned to Colombia, notwithstanding, as he said to me, that he only went back for a short visit and rarely moved about in society at large. He also said the Tribunal had found that his fear of being persecuted was not genuine, which he acknowledged later as a credibility issue. [Mr A] said his mother moved out of the family home in Bucaramanga a few years ago and is now renting a “room” in Bogotá. He did not suggest that anyone from FARC or anyone else had been targeting her for harassment, let alone in Bogotá.

I put to [Mr A] and [Ms B] that there had evidently been significant socio-political change in Colombia with the Peace Accords, the demobilisation and disarming of FARC, its integration into the democratic political process and its repeated public repudiation of past crimes including murder, torture, kidnapping and other extortion, as discussed in independent reporting cited earlier. In particular, I drew attention to the reportedly small size of “FARC dissident” groups, their preoccupation with fighting each other for local criminal “turf,” their evident lack of traction in cities, their operating either in rural or jungle zones and the state’s ongoing willingness and ability to curb and dismantle them.
On the one hand, [Mr A] appeared to acknowledge that FARC and, to a significant extent, its remnant gangs had been eradicated from Colombia’s cities; on the other, he said it would not matter where he chose to relocate his family, he would still face the same threat and danger he was facing until he came to Australia. Here, he said that FARC itself has been replaced in the cities by a civil criminal element, one that he implied has no political agenda, but seeks to accumulate wealth by criminal means. He said that Venezuelan migrants and asylum seekers have moved into Colombia’s cities in large numbers, increasing pressure on housing, infrastructure, resources and public safety. He said that there is one Venezuelan family squatting in the house his mother vacate but still owns in Bucaramanga. He confirmed that the title of the property is still his mother’s and did not suggest that this situation could not be resolved with assistance Colombian authorities. He said that Venezuelan migrants are being wooed into Colombia’s criminal underworld, committing armed robbery and the like. Through [the applicant]’s adviser, [Mr A] and [Ms B] said that Venezuelan criminals have replaced FARC and other revolutionary groups as the armed gangs in Colombia’s cities.
I asked if the prospect of [the applicant] being harmed by such criminals was not based merely in bald speculation. [Ms B] said, in reply, that she did not think she would be able to establish her family in one place, such as Bogotá, because their fear of harm is never ending. [Mr A] said that the Venezuelans in Colombia have no healthcare coverage and are thus not vaccinated against Covid-19, meaning that they comprise a large number of carriers of that virus. [Ms B] said there are no health/safety measures in Colombia. They told me that [the applicant] has been twice vaccinated but still caught Covid in Australia. They indicated that this could happen again if she is removed to Colombia with a worse outcome than the relatively mild o she experienced here in Australia.
I asked if the harm faced from Venezuelan criminal was harm faced by the population generally rather than harm faced by [the applicant] in particular. This question was not addressed on its point.
The adviser made closing comments, saying that the Venezuelans in Colombia constitute a rampant collection of armed gangs that the Colombian government is unwilling and unable to control. He asked me to pay particular attention to the fact that [the applicant] is a member of the group “English-speaking children in Colombia,” that a child like her can still contract Covid-19 after two vaccinations and that already at [age] years, she has a diagnosed anxiety condition.
Post-hearing material
A post-hearing submission comprising eight documents was received on 8 February 2023.
One of these is a copy of the Federal Court judgment SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3, relating to issues of effective state protection and relocation.
The submission resubmits the 26 July 2022 press release from the UN High Commissioner for Human Rights concerning violence perpetrated “by non-State armed groups and criminal organizations in rural areas in Colombia.”
There is the Human Rights Watch World Report 2022 entry entitled “Colombia Events of 2021” which, amongst other things, reports “conflict-related violence has since taken new forms, and abuses by armed groups, including killings, massacres, and massive forced displacement increased in many remote areas of Colombia in 2021...”
There is a 2022 Human Rights Watch media release on how fighting “between armed groups on the Colombia-Venezuela border … caused a dramatic increase in violence in the early months of 2022 causing thousands to flee …”
There is also a 31 March 2022 report from ACAPS highlighting the impact of conflict, displacement and confinement on children and youth.
The submission includes various news articles. One, from Dialógo Américas discusses how Colombian criminal groups such as ELN, has set up 36 camps in Venezuela on the border with Colombia, have been linked to the trafficking of Venezuelans into Colombia, and highlights how trafficked women and girls are being lured and coerced into a lucrative online pornography trade, mainly in the remote region of Norte de Santander which is on the Venezuelan border.[22]
[22] 2 September 2022,
Another article discusses the escalation of rivalry between Venezuelan criminal gangs, particularly in Bogotá, that has seen gang members murdered in high numbers.
Another item is a media release from the Norwegian Refugee Council about gang violence having affected around 270,000 persons in just two months in 2022.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[23] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[24]
[23] MIMA v Rajalingam (1999) 93 FCR 220 .
[24] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[25] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[26]
[25] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[26] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that [the applicant] is a Colombian national who has lived all her life in Australia. I accept at she has been diagnosed with anxiety. I do not accept that this probative of her parents’ claims about their past, not least because they have indicated that they do not discuss the subject of problems in Colombia with her. Hence, there is no basis on which I could find that her anxiety is in any way probative of claims made on her behalf about the situation her parents left behind when the left Colombia in 2009.
I find on the evidence before me that [the applicant]’s diagnosed anxiety probably relates at least in part to [the applicant] being generally uncertain about how long she might or might not be able to stay in Australia. No information before me suggests that this anxiety could not be ameliorated in the event of [the applicant] having no other option but to return to Colombia. No information before me suggests that she would return to Colombia unaccompanied by her parents in the event of her being removed from Australia. Since her parents have given evidence on her behalf, I am not satisfied that [the applicant]’s diagnosed anxiety condition has affected capacity to provide cogent evidence in this matter.
I do not accept on the evidence before me that [the applicant] neither speaks nor understands Spanish. I give more weight to the evidence given at the hearing about her preferring at present to speak English, for the understandable reason that she is immersed in Australia and an Australian educational environment. No evidence before me supports a finding the effect that she would not quickly adapt socially and educationally in Colombia and achieve fluency in colloquial and formal Spanish in the reasonably foreseeable future.
In the event of [the applicant]’s return or removal to Colombia, it is appropriate for me to assess Bucaramanga as the place to which she would return as that is the home city where her parents used to live and work and whence they travelled to Australia. Findings below tend to include [the applicant]’s parents, not because they are applicants in this case, which they are not, but because [the applicant] is still comprehensively dependent on them for her subsistence. Also, she is arguably a member of a “particular social group” comprising herself and the family that was created by her birth.
On the evidence before me I am not satisfied that FARC or members of FARC dissident groups will harm [the applicant]’s parents or [the applicant] herself. This is because FARC and its remnants have been effectively eradicated from the cities and even from much of Colombia’s rural and remote areas, where they are being further decimated by government forces and their own internal rivalry. In making this finding I give weight to the evidence of the 2016 Peace Accords, to the demobilisation and disarming of FARC, to FARC’s integration into the democratic political process and to its repeated public repudiation of past crimes including murder, torture, kidnapping and other extortion, as discussed in independent reporting cited above. I also give weight to the evidently small numbers making up the “FARC dissident” groups, to their preoccupation with fighting each other for local criminal “turf,” to their evident lack of traction in cities, to their operating either in rural or jungle zones and to the state’s ongoing willingness and ability to curb and dismantle them. I acknowledge that the peace process has not been an unalloyed success to date, but I also note, and give some weight to evidence of improvements since the last general election in Colombia. I have had regard to the fact that Bucaramanga is relatively closer to the (still remote) border regions of Colombia than other cities in that country. However, on the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted by FARC or FARC dissident groups in the reasonably foreseeable future. I make this finding confidently whether or not [the applicant]’s parents have been truthful about their past experiences in Colombia.
I have considered all of the evidence before me regarding effects of the large-scale influx of Venezuelan migrants and asylum seekers in Colombian cities. I accept that these cities likely include Bucaramanga given its relatively closer proximity to Venezuela. Notwithstanding that much reporting before me argues that Venezuelans in Colombia are themselves victims of criminal exploitation and abuse, that does not rule out the general possibility that they may commit crimes of varying severity under pressure from Colombian criminals or for their own self-preservation, or both. However, on the evidence before me, I consider it merely bald speculation that [the applicant] or her parents will be singled out to suffer serious harm from Venezuelan migrants or Asylum seekers. Hence I find there is not a real chance of them being
[The applicant] claims variously that there is no free health care in Colombia and that free or cheap health care is not very effective there. I have considered the general health reporting submitted by [the applicant]’s parents. I have weighed the information from sources including the Borgen Project and the ICRC. I accept that health care is not of the highest standard evenly throughout all of Colombia, However, on the evidence overall, I am not satisfied that [the applicant], or her parents for that matter, will be unable to access adequate healthcare in Colombia, whether it be for anxiety or any other illness, injury or condition, let alone for any reason cited in s.5J(1)(a) of the Act.
On the evidence before me, I find that it is merely bald speculation that [the applicant] will contract Covid-19 in Colombia, let alone from a Venezuelan. In any event, Covid-19 has reportedly less severe effects on children, particularly in its recently-evolved strains. Meanwhile, there is no evidence in this case that [the applicant] would catch Covid-19 or be refused treatment, let alone for a reason in s.5J(1)(a) of the Act.
I am not satisfied on the evidence before me that [the applicant] will suffer serious harm for reasons of being a member of a “particular social group” defined as “persons born abroad” or “persons who speak English” or “persons who do not speak Spanish” or other like characterisations.
I am not satisfied on the evidence before me that [the applicant] will suffer serious harm due to a perception or presumption about her parents, having lived several years in Australia, being “rich people.”
There was much discussion during the hearing about relocation. However, it is not a critical issue in this case, as I am not satisfied on the evidence before me that [the applicant] or her parents will face serious harm in Bucaramanga, her family’s home city.
On the subject of effective state protection, there is sufficient evidence in reports cited above to satisfy me that the Colombian state demonstrates both willingness and ability to protect [the applicant], her parents and the population generally from armed groups.
Having considered all of the evidence before me in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Colombia either separately or cumulatively, in the reasonably foreseeable future, for any reason cited in s.5J(1)(a) of the Act. Her claimed fear of being persecuted is not well founded. She is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a national of Colombia, I find that Colombia is the receiving country in this matter.
[The applicant]’s claims to complementary protection are essentially the same as her refugee claims. Those claims have failed to meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant]’s’ protection claims can no more succeed as complementary protection claims than they have as refugee claims.
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Colombia, there is a real risk that [the applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that [the applicant] satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, she does not satisfy the criterion in s 36(2).
DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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.
…

-- POLICY PAPER, February 2019,” Queen’s University Belfast,

[2023] AATA 1727

15 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice