1722426 (Refugee)

1722426 (Refugee) [2023] AATA 3606 (11 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Elysse Trotter
CASE NUMBER:  1722426
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Senior Member G.A.F. Connolly
DATE:11 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 August 2023 at 11:31am
CATCHWORDS
REFUGEE – protection visa – Colombia – Autodefensas Unidas de Colombia (AUC) (United Self-Defences of Colombia) – attendance of military school as a teenager – credibility concerns – delay in applying for protection – voluntary return to country – inconsistencies with country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (Minister’s Delegate) on 1 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Applicant’s Relevant History
The applicant is [age] years old, and he is a citizen of the Republic of Colombia.
For his schooling, the applicant attended a military school, [named Academy]. While a cadet student at the Academy, the applicant says he was taught the elementary aspects of soldiering and of military life, especially on weekends at the school’s training camp. In Australian terms, the Academy best equates, probably, to a private school that is organised along military lines. The military training regimen of that the applicant undertook while attending the Academy is set out in the applicant’s evidence.[1] It is relevant, for the purposes of this application, that while the applicant attended this Academy, there is no evidence before the Tribunal that he ever actually served in the regular Colombian armed forces, nor that he had any advanced military training of the kind that junior soldiers will receive over the course of a military career. This is not to gainsay that the applicant was a cadet student at the Academy and no doubt he learned some skills that are of a kind that a soldier may learn in their initial training.
[1] Applicant’s Statutory Declaration dated 28 March 2023 at paragraphs 4-11.
In [year]-[year], the applicant’s evidence to the Minister’s Delegate was that he was a student at the Academy completing the Colombian equivalent of years 10 and 11. At this time, the applicant says, the AUC tried to infiltrate the Academy[2] and that he and other Academy students were involved in crossfire clashes between Army soldiers and guerrillas.[3] In 2000-2002, the applicant says that he was approached by members of the Autodefensas Unidas de Colombia [United Self-Defences of Colombia] (AUC), who tried to pressure the applicant either in to doing odd jobs for the AUC or to actually join the AUC.[4]
[2] Applicant’s Statutory Declaration dated 28 March 2023 at paragraphs 13.
[3] Protection Visa Decision Record (01 September 2017) at p3.
[4] Protection Visa Decision Record (01 September 2017) at p3.
By [year], the applicant seems to have ended[5] if not completed his military studies at the Academy.[6] The applicant claims that a militia of some form tried to get him to join the militia while he was in his final year of study at the military school.[7] The applicant says that he wanted to separate himself from military life and did not join the Colombian Army.[8]
[5] Applicant’s Statement of 15 December 2022 at [3]-[6].
[6] Translation of the [named] Academy document of 04 May 2016.
[7] Applicant’s Statutory Declaration dated 28 March 2023 at paragraphs 13, 16-19.
[8] Applicant’s Statutory Declaration dated 28 March 2023 at paragraphs 22-23.
In [year range] the applicant seems to have attended a Colombian university and he says his family left Manizales Caldas for Neiva Hulla because of ongoing threats from the unidentified militia.[9]
[9] Applicant’s Statement of 15 December 2022 at [11]-[14]
In 2006-2007, the Colombian Government’s process for demobilising and disarming the AUC commenced its operation, as will be referred to later in these reasons.
In July 2008, the applicant was married. Notwithstanding the newness of the marriage, the applicant says his wife encouraged him to ‘escape to Australia’ and leave Colombia.[10] The applicant says that he and his then wife eventually ended their marriage in 2009.[11]
[10] Protection Visa Decision Record (01 September 2017) at p4.
[11] Applicant’s Statutory Declaration dated 28 March 2023 at paragraph 60.
On 08 October 2008, the applicant was granted an Australian student TU570 visa for overseas English Language Intensive Course (ELICOS) students.[12]
[12] Protection Visa Decision Record (01 September 2017) at p1.
[In] November 2008, the applicant arrived in Australia.[13]
[13] Protection Visa Decision Record (01 September 2017) at p1.
On 22 March 2009, the applicant was granted another TU570 visa for ELICOS studies.[14]
[14] Protection Visa Decision Record (01 September 2017) at p1.
On 11 March 2009, the TU570 visa was granted.[15]
[15] Protection Visa Decision Record (01 September 2017) at p1.
On 09 September 2009, a Non-Compliance Notice was issued by the Department.[16]
[16] Protection Visa Decision Record (01 September 2017) at p1.
From 2009-2016 there was a regular pattern of the applicant applying for a TU570 visa for ELICOS studies and his being granted a new TU570 visa.[17]
[17] Protection Visa Decision Record (01 September 2017) at p2.
During this period, the applicant departed Australia to visit his family in Colombia [in] March 2013 and he returned to Australia, almost two months later, [in] May 2013.[18]
[18] Protection Visa Decision Record (01 September 2017) at p2.
On 22 April 2016, the applicant’s application for a further TU570 student visa was refused.[19]
[19] Protection Visa Decision Record (01 September 2017) at p2.
On 18 May 2016, the applicant lodged his application for a protection visa.[20] This lodgement was made almost 8 years after the applicant’s former wife had first advised the applicant to ‘escape to Australia’.[21]
[20] Protection Visa Decision Record (01 September 2017) at p2.
[21] Protection Visa Decision Record (01 September 2017) at p4.
On 22 June 2016, the applicant was granted a bridging visa in relation to his application for a protection visa.[22]
[22] Protection Visa Decision Record (01 September 2017) at p2.
On 26 July 2017, the applicant’s student visa ceased.
On 01 September 2017, the applicant’s application for a protection visa was refused by the Minister’s Delegate.[23]
[23] Protection Visa Decision Record (01 September 2017) at p13.
On 24 February 2023, the applicant’s case came on for hearing in this Tribunal. The hearing was conducted in both the English and in Spanish. The applicant was represented by Ms Elysse Trotter. At the conclusion of the hearing, the applicant was given leave to file further submissions and evidence in support of his case. This was done and the submissions prepared by the applicant’s representative, Ms Trotter, were, in particular, very helpful in clarifying the nature of the applicant’s case.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Autodefensas Unidas de Colombia (AUC) (United Self-Defences of Colombia)
At one stage, the AUC was a feared Colombian paramilitary group that had been formed in 1997 out of an alliance of smaller right-wing groups[24]. The AUC fought the Colombian government, as well as the FARC, during the Colombian armed conflict that raged during the period from roughly 1997 to 2006. The AUC attacked the FARC and other left-wing groups, as well as engaged in atrocities against innocent civilians.[25]
[24] Stanford University has a very helpful site that explains the AUC and other paramilitary groups in some detail:
[25] A good summary here
At its root, the AUC was a very well organised and well-armed militia that, it has been alleged, was funded or, at least, supported by the Colombian drug cartels to attack the communist and leftist groups that were, also, engaged in kidnappings and extortion. According to Human Rights Watch, the AUC and the Colombian military did have some form of rapport.[26]
[26] See Human Rights Watch, “The Sixth Division”: Military-paramilitary Ties and U.S. Policy in Colombia (September 2001)
Between 2003 and 2006, the Colombian government implemented a demobilization process for the AUC’s coalition of 37 armed groups. While there was likely a very political edge to the AUC, the violent role that AUC played in Colombian society in this period seems, also, to have been accepted by some Colombians as a response to domestic disorder, as Human Rights Watch noted[27] at the same time as lamenting the AUC’s power as a military organisation:
Throughout Colombia, forces allied under the AUC’s name maintain numerous and permanent bases and roadblocks and move with apparent ease. They employ faxes, the Internet, sport utility vehicles and pick-up trucks, radios, helicopters, laptops, and cellular and satellite telephones to disseminate threats, identify targets, prepare death lists, and coordinate massacres. “There has been a significant advance by paramilitaries and it is very disturbing,” commented a high level government investigator consulted by Human Rights Watch.
The increasing strength of paramilitaries is not due to military support or government inaction alone, it should be noted. As insecurity throughout Colombia advances, some Colombians have come to see paramilitaries and their methods as a lamentable, but necessary evil. One Colombian recounted to Human Rights Watch how his mother-in-law, who had recently moved to the Middle Magdalena region, was visited immediately by AUC paramilitaries, who gave her the cellular telephone number of the local AUC commander to use in case of emergency, much like a police hot line. “They guarantee that they will react within fifteen minutes if she reports unusual activity,” her son-in-law told Human Rights Watch.
(internal footnotes omitted)
[27] See Human Rights Watch, “The Sixth Division”: Military-paramilitary Ties and U.S. Policy in Colombia (September 2001)
The AUC publicly and explicitly attacked political enemies on the Left of Colombian politics, with allegations of AUC links to the Colombian government always suspected by critics and foreign observers.[28] This reporting from 2000 by, again, Human Rights Watch, seems illustrative of a common Colombian problem, which was the connections between the Colombian military and violent paramilitaries, who were very well armed and organised[29]:
In “The Ties That Bind,” a report that Human Rights Watch published on February 23, 2000, we detailed the record of the Colombian Army’s Third Brigade, which government investigators had linked to the formation of paramilitary groups in the department of Valle.
Colombian government investigators provided us with detailed information showing that in 1999 the Colombian Army’s Third Brigade helped set up a paramilitary group, called the Calima Front. Investigators from the Attorney General’s office told Human Rights Watch that they had compiled compelling evidence linking the Calima Front to active duty, retired, and reserve military officers attached to the Third Brigade along with local landowners and hired paramilitaries taken from the ranks of AUC. According to these government investigators as well as eyewitness testimony obtained by Human Rights Watch, the Third Brigade provided the Calima Front with weapons, intelligence, and logistical support and coordinated actions with them.
During its January 2001 mission to Valle, Human Rights Watch received further information linking the Third Brigade to the formation and deployment of the Calima Front. Moreover, far from moving decisively to cut these links, punish the officers responsible, and arrest paramilitary leaders, the Colombian government has done little to address this grave problem.
(internal footnotes omitted)
[28] See Human Rights Watch, “The Sixth Division”: Military-paramilitary Ties and U.S. Policy in Colombia (September 2001)
However, since this time of violence in Colombia, involving the AUC and the FARC, and other groupings, there has been a process by which armed groups have given up their arms and joined the political process. In 2006, the Colombian Government began the final process of demobilising the AUC, which had begun in 2003, as noted at the time by the State Department of the United States[30]:
The government concluded demobilization negotiations with most major blocs of the AUC but continued to confront militarily any paramilitary group not involved in negotiations. According to its statistics, the government demobilized 17,560 paramilitaries during the year, bringing the total number demobilized to approximately 32,000 paramilitaries since the process began in 2003. The Organization of American States (OAS) continued to verify all stages of demobilization and reincorporation of former combatants into society. On September 29, the government published a decree implementing the Justice and Peace Law, which authorizes the Prosecutor General's Office to start the legal process of hearing confessions and further prosecuting demobilized paramilitary combatants.
[30] US State Department, Colombia: Country Reports on Human Rights Practices - 2006 (dated 06 March 2007)
While there is mention of AUC in historic reporting, there are also, it is true, contemporary allegations that some disgruntled AUC and other paramilitaries have re-joined gangs to go back to their old ways[31] or formed new groups like the “Gulf Clan”.[32] However, there is nothing in the evidence filed by the applicant or otherwise available to the Tribunal, that suggests these gangs have formed armed militias that resemble anything like the AUC, especially on the scale of the AUC that operated from 1997-2006. I note for the sake of completeness, here, that the FARC did not demobilise and disarm until 2016-2017[33] but the FARC’s existence and operations were not relied on by the applicant for the purposes of his application and was only mentioned briefly in passing.[34]
[31] See reports here regarding the FARC:
[34] Applicant’s Submissions, dated 15 December 2022, at 6.
Applicant’s Fear of Harm in Colombia
For present purposes, it is noteworthy that the demobilisation and disarmament of the AUC started in 2006 but the applicant did not depart Colombia for Australia until November 2008 – that is, after the Colombian process for demobilising AUC and allied paramilitary groups.
Further, this application is founded upon a history whereby the applicant obtained a student visa in October 2008, arrived in Australia in November 2008, and he then renewed his student visa each year until his April 2016 application for a student visa was refused by the Department. In all this time, the applicant could have applied for a protection visa but he chose not to do so.
Furthermore, the applicant did, also, return to Colombia in March 2013 and returned to Australia in May 2013.[35] The applicant’s returning to Colombia, for almost two months, in 2013, sits oddly with what the applicant says now about his inability to return to Colombia in 2023. True, the applicant says he was visiting his mother, who was then very ill, but, insofar as a prolonged stay by the applicant with his family did occur without any incident, this journey weighs, especially given the chronological issues, against immediately accepting the applicant’s claim that there is a genuine threat of harm to him in Colombia.[36]
[35] Protection Visa Decision Record (01 September 2017) at p2.
[36] Applicant’s Statutory Declaration dated 28 March 2023 at paragraphs 77-79.
Finally, putting aside the chronological implausibility of the applicant’s actual conduct in circumstances where he now says he then feared harm, and he still fears harm, there is the matter of the applicant’s claim that AUC was seeking to pressure him, as someone with military training, to join their militia. This claim is hard to take seriously as, firstly, the AUC does not exist anymore. Secondly, even if the AUC did exist, and the applicant did have significant military skills, the reality of 2023 is that he is now [age] years of age, and, as a matter of common sense, would be unlikely to attract any recruiter’s attention, let alone a paramilitary group as ferocious as the disbanded AUC once was in the Colombia of the late 1990s – which is now over a quarter century ago. And this is putting to one side, as observed above at [3] above that the applicant attended a military school as a teenager and had, putting this matter at its highest, experienced, there as a student cadet, a rudimentary training in some aspects of military life.

The applicant, thus, has several chronology and biographical problems that raise not just questions but concerns for anyone fairly assessing his asserted fear of harm. This is not to say that the applicant is not a person who, since arriving in Australia, has contributed to this country, nor that he has set out to be dishonest in what he says. It is simply that there are obvious facts that undermine the applicant’s case.
Assessing the applicant’s case
In assessing an applicant’s case, particularly in the absence of independent witnesses and relevant documentation that will credibly support the existence of the harm claimed by the applicant, much will turn on credibility of the applicant herself or himself.
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is well-founded or that it is for the reason claimed. A fear of persecution is not well-founded if it is merely assumed, or merely asserted, or if its basis is mere speculation. An assertion, however, passionately and/or repeatedly it is made, is not proof of its truth. Similarly, an application for protection that is made some months or, here, many years after the applicant’s arrival in Australia, or which is otherwise accompanied by delay, will have to be explained in some detail, lest an adverse inference be drawn by a decision maker.
Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or for him. Nor is this Tribunal required to accept uncritically any and all the allegations made by an applicant.[37] This Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.[38]
[37] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596, Nagalingam (1992) 38 FCR 191, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.
[38] Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J.
In determining whether or not an applicant is owed protection obligations by Australia, the Tribunal must first make findings of fact on the claims that she or he has made. This may - and, indeed, almost always will – involve an assessment of the particular applicant's credibility. In assessing an applicant’s credibility, the Tribunal is aware of the importance of being, appropriately, sensitive to the difficulties faced by an applicant for protection (this is especially so where an applicant has been held in detention or in a prison). The Tribunal is, in this case, as in all cases, aware of the pressures on applicants and that not every case can be prepared to a state anywhere close to approaching perfection. As a general rule, this Tribunal grants the benefit of the doubt to applicants who are generally credible even if unable to substantiate all of their claims. At the same time, an applicant who is not credible and/or who has unexplained delays will struggle to make out their case.
All of this said, as was stated above, the Tribunal is not obliged to accept at face value, or at least, uncritically, the claims and allegations made by an applicant. In a similar way, the Tribunal’s rejection of an applicant’s claims and allegations does not require the Tribunal to posit any rebutting evidence, especially where those claims conflict with the independent evidence of the reality of an applicant’s country of nationality.[39]
[39] See Randhawa (1994) 52 FCR 437 at 451 per Beaumont J and Selvadurai (1994) 34 ALD 347 at 348 per Heerey J.
It is noteworthy, for example, that s 423A of the Migration Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made earlier, or the evidence not presented, in the time before the primary decision was made. This approach is the application of a rule of common sense in respect of judging adversely an applicant’s credit where she or he has engaged in delay or a failure to speak or act.[40]
[40] see Nominal Defendant v Clements (1960) 104 CLR 476 at 495 per Windeyer J.
Problems with the applicant’s case
The applicant’s protection claim was not made until 2016, after almost 8 years after the applicant first arrived in Australia in 2008, and only then when his student visa had already been cancelled. This, alone, would raise suspicions of the applicant’s claim.
Moreover, for all the applicant’s claims in 2023 of feared harm should he return to Colombia, he did already return and stay with his family for almost two months in 2013. Even so, on his return to Australia in 2013, he still did not make any protection claim, despite what he now says were the dangers he faced when he returned to Colombia.[41] The applicant’s protection claim was only made after his student visa was refused in 2016.
[41] Applicant’s Statutory Declaration dated 28 March 2023 at paragraphs 77-78.
Whatever the true state of the applicant’s military skills, the reality is that it has been over 20 years since he was exposed to any quasi-military environment and any form of remotely soldierly training. More importantly, the AUC that the applicant says tried to pressure him into joining, or cooperating with it, no longer exists – and, indeed, the AUC was in the process of its disarmament and demobilisation in 2006, well before the applicant left Colombia in 2008.
Overall, the applicant’s case has significant chronological and factual problems. The applicant was given every opportunity, including after the hearing, to supply relevant evidence to the Tribunal that explained these obvious problems that went to the very basis of his application for protection, but he failed to so.
Consideration of Credibility
The applicant did not satisfactorily make his case or explain his delay in claiming protection, either in his hearing or in the further period of leave given to him to file further evidence and submissions in support of his application. While the further submissions of the representative were quite helpful, no set of submissions can repair the gaping holes left by an applicant’s lack of relevant evidence.
In particular, there was no real explanation by the applicant of his eight-year delay in making his protection claim, nor of why, after he visited Colombia again in 2013, he failed to make a protection claim on his return to Australia. Instead, the applicant waited until 2016 to make his protection claim – a long-delayed claim that he only made because his student visa application had been refused.[42]
[42] See Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 and Subramaniam v Minister for Immigration and Multicultural Affairs [1998] FCA 30
Finally, as noted above, it is hard to take seriously a claim based around the applicant’s fear of AUC and his being coerced to join AUC, on the basis of his military skills, when the evidence is that the applicant had, at best, a basic familiarity with military life through his teenage years spent at the Academy and, especially, that the applicant had only left Colombia when the AUC had already been demobilised.
FINDINGS
Given the array of identified factual and credibility problems with the applicant’s case, I find that that the applicant is neither a refugee nor is he owed protection by Australia on complimentary protection grounds.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 August 2023 at 11:31am
Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals Tribunal
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.
…

Reuters, “Colombia's FARC party changes name to Comunes”, 25 January 2021.
United Nations News, “Success of Colombia peace process hinges on ending violence: Mission chief”, 12 April 2022.
Associated Press, “EXPLAINER: What are Colombia’s ex-FARC splinter groups?”, 01 December 2021.
Reuters, ‘Colombia signs new peace deal with FARC’, 24 November 2016; BBC News, ‘After decades of war, Colombia's FARC rebels debut political party’, 27 June 2017; Reuters, ‘Peru arrests more than 50 in anti-drug bust at Colombian border’,16 July 2018; Al Jazeera, ‘9 Colombian FARC dissidents killed in bombing raid’, 31 August 2019.

[2023] AATA 3606

11 August 2023

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