1724102 (Refugee)

1724102 (Refugee) [2023] AATA 1127 (7 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Krishlyn Krisha Chetty
CASE NUMBER:  1724102
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Luke Hardy
DATE:7 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 February 2023 at 12:30pm
CATCHWORDS
REFUGEE – protection visa – Colombia – fear of harm from guerrilla group – approached to store items belonging to group in workplace – later threat to kidnap and recruit son – changes of residence and son’s withdrawal from study – credibility – inconsistent, contradictory and implausible claims and evidence – claimed changes of residence not listed in application, and continuing work – statement to local prosecutor on day of departure – country information – group disarmed and reorganised as political party – small remnants still active in rural and remote areas – government’s commitment to implementing peace accords – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2B), 65, 442AA
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
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, a family, are citizens of Colombia: two parents and two sons. They arrived in Australia [in] April 2016 on three-month family visitor visas. They lodged a PV application on 31 May 2016. The delegate refused to grant the visas on 8 September 2017.
The applicants all appeared before the Tribunal on 10 January 2023 to give evidence and present arguments. The applicants were accompanied by their adviser.
The Tribunal hearing was facilitated by an interpreter in the Spanish-English medium.
For the purposes of this review, the applicants submitted a copy of the delegate’s decision record, which includes a description of their original claims and identification of some issues arising. The delegate’s record of evidence given at interview has not been disputed.
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, any of the applicants 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 to the Department
In the original PV application, [the main applicant] claimed she and her family lived in [Location], in the south-eastern city Cali from [Year 3] to April 2016. She claimed she worked from [Year 1] to April 2016 as [an Occupation 1] in a [factory] in Cali.
[The first applicant]’s elder son [the third applicant] claimed to have attended school until [2014], after which he studied [Subject] [in] 2015. Her second son [the fourth applicant] claimed to have attended [primary school] from February [Year 5] to April 2016. [The first applicant]’s husband, [the second applicant], claimed to have worked as [an Occupation 2] from June [Year 4] to April 2016 in [Location 2], which is also in Cali.
By way of substantive claims, [the first applicant] made a statutory declaration in which she declared that she was approached by a man who identified himself as an urban member of the then-active guerrilla group known as the Fuerzas Armadas Revolucionarias de Colombia (FARC) who told her that in the event of signing a Peace Agreement (i.e., a disarmament agreement) with the Colombian government, FARC would need a place to store “valuable” items in the factory where she worked. She claimed she declined to assist because she knew the risks concomitant with assisting FARC. She claimed the same man asked her on two mor occasions “to take a stand in an historic development of a good cause in the best interest of the Colombian people represented by … FARC …” She claimed she still refused. She said that on “the last time” they met the man told her to agree to his request lest her teenage son [the third applicant] be kidnaped and recruited by (the potentially soon to disarm) FARC to help it express its “political views against the Colombian government.” She said the man also warned her against seeking assistance from the police or any other government agency or entity.
[The first applicant] claimed she and her husband, [the second applicant], feeling devastated, sought suggestions from various family members, some of whom suggested that they flee Colombia after making a statement about their problems with FARC to the Fiscalía, which is the common name for the Prosecutor’s Office of the Attorney-General’s Department in Colombia.[1] [The first applicant] declared the family chose Australia as a destination because her brother lives here and was able to help them all obtain temporary visitor visas. She claimed she and her husband now fear that their second child, [the fourth applicant], is now also in danger of being kidnapped and recruited by FARC in response to the family’s decision to report to Fiscalía.
[1] Canada: Immigration and Refugee Board of Canada, Colombia: The role of the Procuraduría General de la Nación, the Vice Public Prosecutor and the Fiscalía General de la Nación, and their degree of judicial independence (1998), 30 September 1999, COL32839.E, available at:
[The first applicant] claimed she and her family could not relocate because FARC was active all over Colombia beyond all capacity for government control. She said all attempts at peace agreements and disarmament had been unsuccessful. She said there would be n guarantee that her children could be protected from FARC all the time. She said people were being killed even in government-protected areas due to FARC’s effective urban networks.
At the delegate’s interview, the delegate evidently observed that [the first applicant]’s evidence appeared authentically “first-person” but disbelieved that anyone’s safety was threatened because she and her family did not relocate “to another part of Colombia” or to another state within Latin America. The delegate also found that there had been a significant change of circumstances in Colombia in and since 2016 such that FARC was no longer the effective guerrilla force [the first applicant] claimed it to be, its having demobilised nationally under the November 2016 Peace Accord, signed a few months after the applicants’ PV application was lodged.
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.[2]
[2] "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.[3] 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.[4]
[3] “Colombia’s Farc rebels apologize for 'great pain' caused by kidnappings,” The Guardian, 13 September 2016,
[4] “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 in 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 ... [5]
[5] “Colombia’s ex-armed group leaders apologise for war atrocities,” AlJazeera, 4 August 2021,
The current government of Colombia is a reportedly “progressive” centre-left one led by President Gustavo Petro which reportedly remains committed to implementing prior peace accords.[6]
[6] “Colombia’s New Administration Raises Hopes for ‘Total Peace’,” USIP, 12 July 2022,
In any event, 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[7]. 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 …[8]
[7] Ibid.
[8] “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 2017 report[9] about an arguably typical remnant group Los Rastrojos:
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.
[9] “Rastrojos,” Insight Crime, 16 February 2017,
This information is confirmed by other sources.[10] A 2018 Refworld report states that by 2017, the Rastrojos drug cartel was reduced to only 310 members and dependent on alliances with paramilitary groups in order to continue its drug trafficking.[11]
[10] “Rastrojos,” Colombia Reports, 16 September 2019,
[11] 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:
Relevant to this case, because it is suggested that FARC still exists and operates extensive urban networks in some form or forms throughout all of Colombia, 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.[12]
[12] “Norte del Valle Cartel,” Insight Crime, 17 November 2015,

I note that the “Unique Victims Register” or “Single [or Sole] Registry of Victims” of internal armed conflict in Colombia was established to respond to complaints by citizens adversely affected by the country’s half-century of virtual civil war. Threats and attempts to kidnap children would appear likely to be the subjects of relevant complaints.
According to the English version of the Colombian government website[13], applications are made to the Public Prosecutor’s Office, which is within the aegis of the Fiscalía. The website provides the following information about applications for inclusion in the register (boldface as in the original:
[13] “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.[14]
[14] see also “REPARATIONS IN COLOMBIA: WHERE TO?
Pre-hearing submission
In a 3 January 2023 submission to the Tribunal, [the first applicant] made the following claims which generally repeat claims made in the original statutory declaration, without any additional detail as to specific dates, places or times:
1. I am the Applicant in the Tribunal matter 1724102 along with [the fourth applicant],
[the third applicant] and [the second applicant].
2. I am authorized by and have obtained consent of the other Applicants in this matter to
provide this statement explaining the relevant protection claims.
3. My husband [the second applicant] and I are citizens of Colombia and
have been in a relationship since [Date, Year 2] but have been married since [April]
2016.
4. We have two children from our relationship namely, [the fourth applicant] and [the third applicant] aged [Age 1] and [Age 2] respectively. Our children are also citizens of Colombia.
5. My family and I arrived in Australia [in] April 2016 on a visitor visa.
6. We lodged our Protection Visa on 31 May 2016. However, our application was refused
by the Department on 8 September 2017 after which we filed for an appeal of the
Delegate's decision.
7. Our protection claims are based on the risk of harm and lack of safety of our son
[the third applicant] and subsequently the best interest of [the fourth applicant].
8. Prior to coming to Australia on a visitor visa with my family, I worked as [an Occupation 1] in a [company] in Colombia. It was during my employment
that I was approached by a man who identified himself as an urban member of the
guerilla [sic] group — Revolutionary Army Force of Colombia (also known as FARC). This man
indicated to me that I needed to comply with their request as they were in the process
of signing a peace treaty with the government.
9* The FARC required me to assist them in storing some artefacts which were packaged in
boxes at factory where I was employed. I had refused their request as I did not believe in
assisting him as he belonged to a guerilla group who resort to violence in order to get
the government to agree to their political demands.
10. This man tried to persuade me two times and these attempts were futile. The final time
when he approached me, he threatened me that if I do not agree to their request, he
would take my son [the third applicant] away from us and recruit him to be a
guerilla fighter and fight against the Colombian government.
11. The man also threatened me about reporting this matter to the police stating that FARC
has a well-organized network and informants everywhere and they will not hesitate to
make my son disappear.
12. When my husband learned about this, he was also very devastated. We informed some
of our relatives about what has happened and most of them advised us to leave
Colombia. At the same time, some of them suggested that we put in a formal complaint
to the Colombian Attorney General.
13. A few friends suggested finding help overseas and we managed to contact my elder
brother in Australia, [Mr A] who managed to get all of us visitor visas
to Australia.
14. We did not ever intend to leave our home country of Colombia. However, our
circumstances were such that we could not risk and continue living in Colombia with the
fear that our son could disappear mysteriously, and we would not be able to do anything
about it.
15. Ever since we have arrived in Australia, we have not returned to Colombia as we are
aware of how powerful guerilla groups are and it is true that their network is widespread
and can trace the whereabouts of targeted people to harm them if they do not accede to
requests of the guerilla groups.
16. We decided to come to Australia as this country was distant from Colombia and did not
have any guerilla insurgents like Chile.
17. In addition to our elder son, we strongly feel that our younger son [the fourth applicant]
is also in danger because of our decision to denounce FARC and not comply with their
request. There is no guarantee that our younger son will be safe in Colombia.
18. If we are to return to Colombia, we feel that our sons will be taken away and forced to
fight for guerilla groups. If they are later caught by the government, they will be
imprisoned due to committing crimes against the state and due to their association with
the guerilla group FARC.
19. Ever since I have been threatened about my son being taken away, I feel that I have not
been the same which is why my husband, and I did not hesitate to leave Colombia. We
have not returned to Colombia and hope that we are never forced to return as the
thought of my children being taken away and being forced into a guerilla group is
devastating and unsettling.
20. We do not think that retuning to Colombia is safe for our children. Nor is it safe for us
because the guerilla groups have a well-organized network and even police protection
cannot help people who have been targets of guerilla groups. We do not think that the
police or any authorities can help us because the guerilla groups are far more advanced
and targeted people have been killed in Colombia despite police protection.
21. We also cannot go back to Colombia and relocate to another area or any other protected
area because the guerilla group specifically FARC is able to notice and trace its target. If
we did not see a threat, we would not have moved countries to escape the harm from
FARC.
22. Further, we have not returned to Colombia since 2016 and have lived in Australia for
about 6 years. Our children have adjusted to the Australian community and spent most
of their teenage life here. It is in their best interest to remain in Australia as if we are
compelled to go back to Colombia, they will not have the same quality of life that they
have here.
This statement was accompanied by some news reporting from 2016, one of which says that in its heyday, whilst having “some urban groups,” FARC had “always been an overwhelmingly rural guerrilla organisation.” There is also a 2007 article describing FARC as it was, I note, over 15 years ago and a decade or so before the Peace Accords.
The submission includes more recent news reports from 2020, 2021, 2022 and 2023.
A November 2020 AlJazeera report 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.
The 2021 report, from CNN, nevertheless acknowledges FARC’s “shift away from … more than 50 years of armed conflict” and its integration into the democratic political process.
Killings in 2001 are detailed in a January 2022 WOLA report that is also included in the 3 January 2023 submission. At least seven of these occurred in the Valle del Cauca, a regional area outside of Cali. Some of these are attributed to splinter groups descended from FARC (and described as “FARC dissidents”) after the Peace Accords; some not. There is aa report regarding an attack on a police station in the same rural area in January 2022.
The submission includes a 2 January 2023 piece from Colombia Reports, which refers to small improvements in the situation since the 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 3 January 2023 article in Semana describes state forces clashing with FARC splinter activists in rural areas like Valle del Cauca. The article describes an increase I 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.
The 3 January 2023 submission includes some reporting in Spanish to which, for not being in English, the Tribunal is not required to have regard.
The applicants’ adviser also made a covering submission on 3 January 2023. This submission provides the first vague detail as to the date of the first encounter with the FARC cadre: “2015.” The submission states that the applicants applied for visitor visas for Australia on 14 October 2015. It mentions the applicants having been granted Bridging (A) Visas. It goes on to describe the applicants’ claims as follows, apparently slipping between the respective voices of the adviser and [the first applicant]:
Overview
9. The Applicants are citizens of Colombia. The Applicants have been residing in Australia since [April] 2016.
10. [The primary applicant] and her husband [the second applicant] decided to leave Colombia with their two children in 2016.
11. We are instructed that the sole reason behind the family leaving Colombia a threat by a member of the guerilla [sic] group, FARC. On or about 2015 the primary applicant was approached by a member of the guerilla group FARC to assist them whilst they were negotiating a peace treaty with the then Colombian government. Since the primary applicant refused to comply with the request, she was threatened that her son [the third applicant] will be subjected to enforced disappearance and subsequently forced to join the guerilla group FARC to fight against the government.
12. We are instructed that being threatened about her son she also started worrying about the safety of her other son namely, [the fourth applicant] who could also be subjected to enforced
disappearance if they refuse to comply with the demands of the member of the guerilla group.
13. We submit that primary applicant’s mother has complained to the police in Colombia regarding the threats relating to disappearance of [the third applicant] and additionally I had also formally written to the Attorney General’s Office indicating the threat and extent of harm my family was facing from FARC before I left Colombia. Please see attached copies of those
complaints.
14. We are instructed that there was no other option of relocating within Colombia or to any member countries and therefore the Applicants left Colombia for Australia. Australia was a good option as it was a considerable distance away from Colombia and a much safer and free country without the presence of guerilla groups.
15. In addition, we are instructed that apart from the concern regarding her children’s safety, she was also in fear of the fact that both her and her husband would most likely be harmed, tortured, and killed by FARC members.
16. We submit that the Applicants strongly believe that their protection claims to be based on a wellfounded fear of persecution. Please see attached the primary Applicant’s personal statement in this regard.
Credibility of Claims
17. The primary Applicant attended the Departmental interview in relation to their SC 866 Protection Visa and explained to the Delegate at length about my well-founded fear of persecution in Colombia if her family is compelled to return to Colombia. We are instructed that the Applicants maintain that this well-founded fear of persecution still exists and is very much relevant at present in Colombia.
18. Further, we are instructed that if the Applicants are forced to return to Colombia, they will most likely lose their lives as the country is subjected to a widespread network of FARC members who manipulate and control government agencies and authorities using violence and advanced warfare.
19. Further, we submit that there have been ongoing peace talks between FARC and the government, however, numerous lives have been lost and will continue to be lost in Colombia. At present the situation in Colombia is uncertain despite peace talks and a truce.
20. In assessing the credibility of my claims, the delegate did not consider the fact that there will not be an absolute availability of evidence to prove each and every minute aspect. However, we submit that the Applicants have submitted substantial evidence to prove their claims and at the Departmental interview a consistent account in relation to this evidence was provided. In this regard, “the UNHCR has emphasized the need for decision makers to have realistic expectations of what an applicant should know and remember in light of the natural limitations of human memory”. Likewise, in SZSFK, Judge Driver (in obiter [sic]) stipulated the fact that a diplomatic post is not aware of something does not mean it did not occur.
21. We further submit that the Delegate did not comprehend the significance of FARC and how well they execute organized crime in Colombia. If the Delegate subjectively examined the evidence relating to what FARC is and the harm they can cause targeted people, then a proper credibility assessment of the protection claims would have been conducted whereby the outcome of the SC 866 Protection Visa at the Departmental level would have been different and favorable.
22. We note that the Delegate in the decision record stated that the independent country information verified that FARC is not a threat in Colombia. We submit that there has never been an independent country information report on Colombia, so it is unrealistic and inappropriate for the Delegate to arrive at such a conclusion and discredit the evidence provided by the primary Applicant at the departmental interview. Please see attached our correspondence with DFAT in this regard.
Fear and Risk of Harm
23. As detailed in the primary Applicant’s personal statement, we are instructed that she maintains her position that she has been a targeted person whereby she and her family have a real risk of harm if they are compelled to return to Colombia. We are further instructed that FARC dissident groups still exists and can harm targeted people who oppose them.
24. We submit that the primary Applicant had put in a complaint to the Attorney General’s Office in Colombia as detailed in her personal statement. Unfortunately, there has been no positive outcome or affirmative action from the authorities. We are instructed that this may be the case as FARC dissident groups are also powerful and a very well organized and cannot be held to account by police or government authorities. Hence, there is no certainty that the Applicant’s [sic] will be safe and live freely without any fear or harm if they are compelled to return to Colombia.
Well-founded fear of persecution
25. We submit that the Applicants have a well-founded fear of persecution if they are compelled to return to Colombia as they did not comply with FARC’s demands.
26. Further, there is no evidence to suggest that since time has passed FARC will not harm them as FARC dissident groups are still in existence in Colombia.
27. We further submit that since FARC has a long history and has successfully established itself as a terrorist and criminal organization, the police and government authorities are unwilling and unable to go against FARC and it was FARC who negotiated the peace agreement with government on their terms. Hence, there is no guarantee that the Applicants will be offered any protection and even if they are offered protection at all that may not be sufficient to defend them from FARC dissident groups.
28. Considering the above, we submit that if the Applicants are forced to return to Colombia, they will be subjected to persecution as FARC dissident groups still exists and peace agreement is still new and to some extent uncertain.
Relocation
29. We submit that there is no possibility for me to relocate to another town or city in within
Colombia as 7 years has passed since we left Colombia.
30. We are instructed that Colombia is participating in the 2022 Mercosur Residence agreement, however this agreement only would give the Applicants the right to live and work in a participating country for a period of 2 years. Hence, this would not offer the Applicants
permanent relief as they would have to return to Colombia.
31. We submit that being in Australia since 2016 the Applicants have developed considerable ties to Australia by forging relationships with my friends and colleagues. Further, the Applicants have adjusted to the Australian way and developed support networks here in Australia and do not have this connection to any other third country.
Conclusion
32. For all the reasons stated above, we submit that the Applicants well-founded fear of persecution in Colombia and there is a real chance that if they are forced to return to Colombia, they will be suffering from serious harm.
33. Further, the Applicants have a firm belief that they cannot avail ourselves [sic] to [sic] state authorities or any government for protection given that their previous attempt was futile ...
Evidence to the Tribunal

I took evidence from all four applicants at the Tribunal hearing.
[The second applicant]
I asked [the second applicant] how he was aware of the facts in the present application and he said that [the first applicant] had communicated all the facts to him.
I asked [the second applicant] if he himself had ever met or encountered any FARC cadres and he said he had not. I asked him if he had ever witnessed any communications from FARC and he said he had not. I asked him if he had himself participated in making any reports or complaints about FARC and he said he had not. He said that only [the first applicant] had done that.
Looking at his evidence, I asked [the second applicant] if he was included in the PV application before me as more of a dependant applicant; he said he was.
[The second applicant] then asked if he could make a statement and I invited him to do so. He said that he and [the first applicant] always put their children first. He said his sons had not been able to enjoy a free childhood in Colombia. He said they lived “locked in” lives when the FARC problems started. He said he was at that time the family member who had to go our of the home the most: to shop and to work as [an Occupation 2]. He said he could “see the evil out there.”
I asked [the second applicant] if he had anything else to say and he said he did not.
[The third applicant]
I asked the elder son [the third applicant] to confirm his current age and the age he was on arriving in Australia. He said he was [Ages 1 and 3] respectively. I asked him what he was doing in Colombia before coming to Australia and he said he studied and worked. He said he studied at a [college]. I asked him what course year he sat in 2016 and he said that was his “apprentice” year. He said the first year is the “practitioner” year. He said he recalled having commenced college in 2014 around six months after finishing high school. Then he said he was unable to complete his course because his parents took him out of school at the end of 2014. Then he said he was taken out of college in 2015, not 2014, around six or seven months before coming to Australia. He said he finished high school towards the end of 2014. His evidence was now more consistent with what he had claimed in the original PV application.
[The third applicant] asked for some time to collect his thoughts and I allowed him some. He said he was [Age 2] years old when he finishes senior high school. That evidently tallies with 2014. He said again that he was taken out of [college] in 2015. I asked him about his work and he said that he had a casual job [doing a job task] on weekends. Then he mentioned a Monday-to-Friday job that he had with a company called [Company] for about five months. I asked him if he could be more specific about when he held the full-time position with [Company] and he said he did not remember dates very well but thought it could have been in 2014.
I put to [the third applicant] that in his PV application he claimed to have had no job at all in 2014. He said he did not remember too well. I put to him that in his PV application, he claimed to have worked for [Company] (as [an industry] labourer) from September 2015 to April 2016. I invited him to comment and he said that this information “could be” correct. I put to him that on this information he went straight from leaving college in September 2015 to full-time work with [Company]. He then said the information in the PV application was wrong. I put to him that I could not see any submissions either to the Department or to the Tribunal suggesting that that information had ever been noted to be incorrect.
[The fourth applicant]
I asked [the fourth applicant] his current age and he said he was [Age 2]. He said he left Colombia at [Age 4] years and turned [Age 5] after arriving in Australia. He said he could not remember where he attended school but agreed that it was [a primary school] in Cali when I read that information form the PV application. I asked him if he could remember what his last class level had been and he said it was probably the [Number 1] or [Number 2] year of primary. I referred to the claim in his application about having attended [primary school] until April 2016 and suggested that if he were [Age 4] years old at that time he might more likely have been in a higher grade than [Number 1] or [Number 2]. He did not comment. He did not suggest that he stopped attending school prior to April 2016. I asked him if he wished to discuss anything else and he said he did not.
[The first applicant]
[The first applicant] told me that the factory where she worked as [an Occupation] employed around 50 people. She said the owner of the factory was a widow who had adult children who helped her to run the business. She said the factory had several floors and sections, hers being where she operated one of around eight [machines]. She said she had no other responsibilities in the factory. She said she worked to a floor supervisor.
[The first applicant] said the first time she ever encountered FARC was on a Saturday after 4pm in July 2015 when she had just finished a shift and was waiting at a bus stop for a bus to take her home. She said there were other people at the bus stop although she was the only person from the factory there at that time. She said she encountered only one person from FARC, a man who struck up conversation with her and then eventually said he was from FARC and needed a favour done. She said he then asked if FARC could store a box in the factory where she worked. She said she told him she was not in a position to be able to secrete a box in the factory: “How can I put a box in there?” She said he then told her, “Think about it.” She said her bus then came and she left the FARC cadre at the bus stop.
[The first applicant] said the second encounter with the same man was a month later. She said the cadre was again by himself. She then said that she did not see anybody else if there was anyone else there. She said she was walking near her bus stop when the man approached her and asked if she had thought about his request. I put to her that I was wondering why this person would have waited all of a month to follow up the request to which she had given such an unsatisfactory reply, as far as he seemed to be concerned. In reply, [the first applicant] said, “I don’t know. I thought he’d forgotten.” I put to her that his behaviour seemed incredibly patient for a covert member of an urban guerrilla organisation needing perhaps urgently to hide something sensitive. I invited her to consider and comment on the FARC cadre trying to explain to his brigade why a month had passed without his having been able to hide something the organisation had needed to hide in July. In response, [the first applicant] said she just got on the bus and paid no attention. I asked her if we could be sure this man was even a FARC cadre in the first place, as buses and bus stops do sometimes attract odd chatters. In reply, [the first applicant] said she did not know. I put to her that this person might not have been a real FARC cadre as he did not seem to have done any “homework,” as it were, about whether she was even the right person at the factory to ask, given that she did not even own the business or the premises. I put to [the first applicant] that it seemed odd that FARC did not approach the owner of the factory and, depending on how things went, threaten to kidnap one of her children. In reply, [the first applicant] said, “I don’t know.”
I reminded [the first applicant] that she had just a few moments earlier suggested that she herself was not even certain whether this man was indeed a member of FARC. In reply, she said she thought he was because he talked about his “group.” The she went on to say that she did not believe him at first and just continued her normal life. This claim seemed contradicted by her earlier written claim about having believed the man was a FARC cadre from the very first encounter and having decided she did not want to have anything to do with that outlawed guerrilla organisation.
[The first applicant] said that during their second encounter, the FARC cadre asked, “Did you think about it? We know all about your life.” She said he asked her to store the box and advised her that refusal could bring “consequences.” She aid that on this second occasion he did not yet state any specific consequences. She said the third encounter and last was in early October 2015. She said this was the first time the FARC cadre ever mentioned her son [the third applicant]. She said he told her, “Your son will be recruited into FARC.” [The first applicant] said this scared her so much that she discussed the matter with [the second applicant] and they then decided to take [the third applicant] out of his college and [the fourth applicant] out of his school as well. I asked her to confirm if she did all this after the third encounter with the FARC cadre in October 2015 and she said that did.
I asked [the first applicant] if the family continued to live in the same house until departing for Australia six or seven months later, and she said they did not change their address. She then described a process in which the whole family used to leave their home very late at night or very early in the morning and hide out in a holiday home that was owned by her parents. She seemed to argue that in making these moves at odd hours of the day, the family avoided detection by FARC. She said the family would stay away for two or three days at a time and then return very late at night or very early in the morning to their home. I asked why they ever returned home if they considered the holiday house a safe place to hide, and she said that she and her husband had to continue working in their jobs.
Here I questioned the whole logic of these intermittent visits to the holiday home and the continuation of the job at the factory, as this was the place and context, in [the first applicant]’s claims, in which FARC most closely associated her. In reply, [the first applicant] said she had accrued enough leave to take time off work for 15 days at a time. Recalling that she claimed to have stayed only 2 to 3 days at a time in the holiday house before returning home to go back to work, I asked [the first applicant] why she and the family never stayed in the holiday house, say, for up to 15 days at a time. In reply, she said they did not do this because they were scared FARC might have followed them there. She said this went on from October 2015 to April 2016. At this stage, the claims about hiding in the holiday house and avoiding FARC encounters near the workplace by taking fortnight bocks of leave started to strike me as being contradictory and nonsensical.
In any event, [the first applicant] claims to have heard nothing from FARC since the last encounter in October 2015, and nothing, meanwhile, evidently happened to anyone in her family, let alone [the third applicant]. Essentially, she claims this was probably only made possible by staying on the move from October 2015 to April 2016 and by not bringing anything to the attention of the authorities until the morning of the day on which the family flew out of Colombia. I asked [the first applicant] if, on the evident silence of FARC throughout all of those months, she did not think at the time that FARC had moved on, and she said, No.” She then said she did not think FARC had moved on because her husband used to take her to work and back on his motorcycle, making it harder for FARC to stop her on the street. I asked [the first applicant] when she finally stopped working at the factory and she said, “April 2016.”
I asked [the first applicant] if she ever told the factory owner about the risk of interference from FARC. She said she never did because the FARC cadre had warned her against telling anyone. This explanation did not appear to sit with [the first applicant]’s claim in her original statutory declaration about her having told relatives and close friends. Fear of FARC retribution did not appear to prevent that from happening and, besides, the alleged FARC cadre’s warning had been against going “to the police or any government agency.” I put to [the first applicant] that she had evidently discussed the problem with other people including her mother. In reply, she said she only mentioned the matter to her mother after her situation seemed to become relatively more secure (“when things were stronger”). I put to her that on her other evidence in this matter, she did not perceive her circumstances improving at all after the October 2015 encounter with the FARC cadre, which was also, in her evidence the first time the cadre cautioned her against going to the police or any other government agency.
I put to [the first applicant] that according to information in the original PV application form about family members’ domicile, work and school it was hard to see that life in Colombia suddenly changed in October 2015 at all. In response, she said that she did not provide the address of her parents’ holiday home because she and her family “always stayed in different places” during that period. I put to her that this claim about having “always” been staying in different places from October 2015 onwards was a new claim, different from the one about splitting time between her residential home and the holiday house, with neither claim having appeared in any previous statements or other evidence. [The first applicant] confirmed she had never mentioned this detail. I asked her why she had not previously mentioned having moved amongst a variety of dwellings and she said she had not done so because they were “not safe places.” I reminded her of her claim about having repeatedly stayed in the holiday home from October 2015 to April 2016. I put to her that she and her family had treated that as a safe place, and yet she still had not mentioned staying there until she attended the Tribunal hearing.
I devoted some time during the hearing to discussing with [the first applicant] the two written complaints purportedly submitted to the Fiscalía.
According to the photocopy and English translation provided, the first document a statement [the first applicant] made [in] April 2016, the day she left Colombia for Australia. It is signed by her and witnessed by a person purporting to be a “Local Prosecutor.” My first concern is that it is in the form of a one-page letter typed on purported Fiscalía letterhead, which is to say that it does not in any way look like a “unique declaration form” even though it bears signatures of an “applicant” and of an attending “official.” [15]
[15] “Application for registration in the single registry of victims,” GOV.CO,
Another concern is that it contains none of the essential information that the Fiscalía reportedly required: complainants were expected to “tell in detail the circumstances of time, manner and place in which the victimizing facts occurred.” All three of these details could have been mentioned by [the first applicant] but none of them were, seemingly rendering the declaration useless. Also, if [the first applicant]’s complaint is or includes an application to be included in the national victims’ register, which is evidently the main purpose of registering a complaint with the Fiscalía, then it is odd that there is no reference even to the year in which the alleged encounters with the FARC cadre occurred, let alone to distinguish whether they occurred before or since “June 10, 2011.” [16]
[16] “Application for registration in the single registry of victims,” GOV.CO,
A third concern is that what little detail there is in this statement is often contradicted by [the first applicant]’s evidence to the Department and the Tribunal. [The first applicant] declares in the statement, “On three different occasions I have been the victim of threats that my son [the third applicant] … may disappear from the locality [and be] recruited to be part of the lines of FARC.” This is not consistent with her evidence to the Department or the Tribunal because [the first applicant] has expressly claimed that the threat about [the third applicant] was made on only one occasion, being the third and last time she encountered the alleged FARC cadre. Addressing this concern, [the first applicant] told me that the FARC cadre did generally mention “consequences” during their second encounter. I put to her that there was a lot of difference between a generalised mention of “consequences” and an actual threat relating to her son [the third applicant]. In reply, [the first applicant] said it had been difficult to remember everything.
I asked [the first applicant] about another aspect of her purported complaint to the Fiscalía. The deposition concludes with some seemingly disingenuous content. [The first applicant] expresses fear for [the third applicant] in the event of FARC recruiting him and the authorities then capturing him and mistreating him. She puts this in a statement on the day she and [the third applicant] have air tickets for Sydney. In any event, it seems odd that the Fiscalía here allows [the first applicant] to devote so much space in her already brief complaint to apprehensions rather than information. In addition, [the first applicant] declares in the document that she is prepared to appear before any authority and give evidence under Oath in connection with any investigation arising from her deposition, but she is saying this on the same day on which she is preparing to depart Colombia indefinitely. I asked her if it was not somewhat disingenuous to provide such an undertaking, given that she was just about to fly out of Colombia. In reply, she said she just “wanted to leave a record” of what had happened to her and her family. I put to her that this “record” appeared lacking in any potentially useful detail (the cadre’s demands, for example, merely having been described as a request “to provide certain SERVICES to the FARC”) and appeared inconsistent with other significant items of evidence provided in this matter over time.
The other purported Fiscalía document is in the form of a short note, again typed on purported Fiscalía letterhead. It is dated 20 May 2016. It is not an application for inclusion in the national victims’’ register as it does not appear to be a report registered in a “unique format” intended to capture details of time, place, relevant parties and specific circumstances. In this instance, the document purports to be a note or minute made by a “Fifth Local Prosecutor,” reporting, with a view to further intervention from the authorities, that [the first applicant]’s mother and [the first applicant] herself were both being threatened by “two men” from FARC who warned [the first applicant] that her son would suffer “forced disappearance” in the event of her refusing to collaborate with them.
I put to [the first applicant] that it seemed odd that she was reported to have been threatened by two FARC cadres, rather than the sole individual she had referred to throughout all of her own evidence so far. In reply, [the first applicant] said that from the very first encounter (on the Saturday afternoon in July 2015) there were indeed two FARC cadres involved. She said the second cadre “was at a distance.” I reminded [the first applicant] that earlier in the hearing, when I had asked her how many FARC cadres had been involved in the first encounter in July 2015, she had said “Only one. Male.” She had also gone on to confirm under Oath that on the second occasion, the cadre who had spoken to her the first tie came again on his own. About this occasion she said she was not sure if other FACR cadres were nearby; she certainly did not suggest that she had been aware of anyone else observing from a distance. I put to [the first applicant] that she had been specific throughout the hearing until now that there had only ever been one FARC cadre involved. She then said, “he was with him, but only one spoke.” I asked her how she even knew that this other person, since he did not speak, had anything to do with FARC, and she said they were wearing similar clothes. Her evidence here concerned me, as she had just moments earlier described the second person as being at a distance rather than being close enough (“with him”) for his silence to be remarkable in the circumstances. In any event, although [the first applicant] now assured me that she recalled there being two FARC cadres involved, just as her mother had purportedly told the Fiscalía, she had only referred to there being one in her statutory declaration to the Department and in her purported statement to the Fiscalía. Her evidence to me explaining the presence and involvement of two FARC cadres seemed improvised.

At this point in the hearing, I asked [the first applicant] if this account of encounters with FARC might purely be an invention on her part, and she said it was not.
One additional factual problem that concerned me related to the timing of [the third applicant]’s cessation of studies. According to the original PV application, and according to [the third applicant]’s oral evidence, he ceased his [college] in September 2015. He then evidently proceeded, according to the original PV application, to work full-time for the [company] until April 2016. However, in [the first applicant]’s version of events, she and her husband took [the third applicant] out of college and into hiding in October 2015 after the third and most explicitly threatening encounter with the FACR cadre (or cadres, according to what she now claimed).
Under the protocols of s.424AA, I put to [the first applicant] that the oral evidence of her sons as to the respective months in which they ceased attending school or college seemed inconsistent with the information in the PV application and also inconsistent with her own claims about when their education was interrupted. I informed her that this was potentially relevant because her evidence and that of her sons appeared to be of such inconsistency as to throw doubt on her overall account of strife with FARC. I put to her that subject to her comments or response, I might find her account unreliable and that this would be a reason or part of a reason for refusing her and her family PVs in this matter. I asked [the first applicant] if she wished to comment or respond immediately or if she needed more time. She commented and responded immediately. She essentially said, as her sons had said in the hearing, that they all had difficulty recalling dates. She went on to say that what she and her husband wanted was for their children to be safe. She said her younger son was now fully adapted into life in Australia.
I referred [the first applicant] to independent country information relating to the 2016 Peace Accord, the demobilisation of FARC, the disarming of FARC, its evolution into a legal entity participating in the democratic political process in Colombia, its public renunciation of past crimes and intimidation, and its remnant die-hards having splintered into infighting factions located mainly in remote jungle camps and towns near the border with Venezuela, far from Cali. I asked [the first applicant], in the event of her claims being generally true and factual, whether, six or more years since she and her family came to Australia, there continued to be a real chance of their being persecuted in Colombia. In reply, [the first applicant] said that FARC had maintained its attention towards her. She said this was evidence in the fact that they later went to her mother’s home to as after her. She said this was the reason her mother went to report to the Fiscalía in May 2016.
I asked [the first applicant] again if significant developments in Colombia in and since 2016 might not have overtaken the alleged events of 2015-16 causing them now and in the reasonably foreseeable future to have no relevant significance. In reply, she said she still holds the same fear as new cells of FARC have formed. She seemed to be referring here to the drug-running groups on the border, but she have been suggesting a regrouping of FARC’s urban guerrilla brigades, in which case her claim was unsupported.
I invited [the first applicant] to comment on the reporting of FARC’s apologies and acts of self-repudiation in recent years. She said these were “just words.” She said the civil war between the state and FARC continues.
Post-hearing submission
A post-hearing submission was received on 24 January 2023. The submission includes an 18 January 2023 statement from [the first applicant], in which she says that she and her family still fear FARC. She says her mother died in Colombia in August 2016, which was around three months after the purported report to the Fiscalía. [The first applicant] does not in any way suggest the two events were related and, for want of evidence to the contrary, I am not satisfied that they were. [The first applicant] claims in her statement that she and her family made the difficult decision to remain in Australia and not to return to Colombia for her mother’s funeral at the time because they all feared for their lives there. I give no weight to this claim because the applicants had already lodged applications to remain in Australia permanently, but were all here only on Bridging A visas, which would not have permitted them to re-enter Australia to continue with their PV application, irrespective of where they went.
[The first applicant] says in the 18 January 2023 statement that life would not be normal in Colombia. She says her family has found peace in Australia.
The applicants’ adviser provided the following arguments in the 24 January 2023 submission:
Tribunal’s Concerns
3. When summing up the evidence heard during the Tribunal, the Member raised the following
concerns regarding the following Applicants:
a)     [The third applicant]:
i) No submissions were made regarding the dates of his education and employment being
incorrect in the 866 applications;
ii) There were inaccurate recollections of dates regarding education and employment; and
iii) An inference could be drawn that before the threat [the third applicant] was taken out of school for full
time work and he continued to work until April 2016.
b)     [The fourth applicant]:
i) The dates given for his schooling were inconsistent between the 866 application and those
given in the hearing.
c)     [The first applicant]:
i) There appeared no interruption to certain elements of normal life, such as the continuance of
work;
ii) There were no alternate addresses mentioned in the 866 applications to evidence that they were frequently changing location and hiding out at a family member’s holiday home and other
addresses;
iii) The Applicant complained to the Fiscalia in Colombia immediately prior to coming to
Australia and leaving Colombia, and not beforehand while they were remaining in the country;
iv) In her statement to Fiscalia, the Applicant mentioned that she commits to appear before any
authority in investigations, but this commitment was undermined because she knew she was
coming to Australia and leaving Colombia indefinitely; and
v) She could not give a satisfactory answer as to how [the third applicant] could study if they were hiding
out and living in different places[.]
Submissions Addressing Concerns
4. In response to the concerns raised by the Tribunal member in their summing up, we submit the following:
a)     [The third applicant]:
i) When the 866 application was made in 2016, it was completed with outside assistance and
when the Applicant was still a teenager. The person assisting with completing the paperwork
would not have had firsthand knowledge of x’s personal circumstances or the exact timeline of
his education and employment dates. Whilst the chronology and the substance of the events
outlined in their application is, on the whole, correct, it is possible some temporal errors were
made in the initial application in the family’s urgency to submit and that these weren’t picked up
at the time.
ii) The Applicant was only a teenager when he left Colombia. Whilst being questioned during the Tribunal, the Applicant was able to provide a general chronology of events, but did struggle with the recollection of some specific dates from several years ago.
The hearing was a foreign and stressful experience for him and he did acknowledged during the Tribunal that he was overwhelmed and getting confused. The Applicant had not brought any aide[s] memoirs or other documentation to rely upon or simply read out, and so when he began feeling overwhelmed he asked the Tribunal member for some time to gather himself and his thoughts.
We submit that the applicant’s inaccuracies in his recollection were the cumulative result of the
passage of many years making the specific details harder to recollect than if they were recent, and the unfamiliar and stressful environment under which he was being prompted to give this
information from memory alone.
iii) As the main subject of the FARC threat, [the third applicant] felt particularly at risk. He was pulled out
of education by his parents, so great was the danger that the family felt he was in, and he
commenced employment only after he had ceased to continue his education. The company for
which he worked offered far greater levels of safety than those available to [the third applicant] were he to have continued in education. For example, his employer provided private door-to-door transport from the Applicant’s locale (which changed frequently while the family were in hiding) to his place of work. Furthermore, said workplace was a large compound with extensive security staff and had additional measures such as electronic access gates and cameras. As such, the Applicant actually felt safest when at work, as the risk to his person from FARC was less than when outside of work or in education.
b)     [The fourth applicant]:
i) When the 866 application was made in 2016, it was completed with outside assistance and
when the Applicant was only a young boy. The person assisting with completing the paperwork
would not have had firsthand knowledge of his personal circumstances or the exact timeline of
his schooling dates. Whilst the chronology and the substance of the events outlined in their
application is, on the whole, correct, it is possible some temporal errors were made in the initial
application in the family’s urgency to submit and that these weren’t picked up at the time.
c)     [The first applicant]:
i) The lives of the Applicants were grossly disrupted on many levels. This included constantly
having to move from address to address, disruption to education, living in continual fear, and
curtailing all unnecessary movements in public such as social visits, shopping, outdoor recreation, dining out and other public activities.
Nonetheless, the Applicants did not have vast savings to live off and so it was still required that
they continue to work and earn money to support themselves. As such, there was a continuance of employment, but this was out of financial necessity and the Applicants took all steps possible to mitigate this risk.
In the case of the Applicant’s continued employment, she first exhausted all her accrued leave to avoid returning to work until absolutely necessary. Once she did return to work, she avoided
public transport and instead her husband would drop her off and collect her on his motorcycle.
Similarly to [the third applicant] in his work, she would take different routes to and from work, with
different drop-off and pick-up points, and using private door-to-door transport to minimise the
time spent exposed in public.
Furthermore, after fleeing the country, the Applicant’s mother passed away suddenly back in
Colombia. There was no opportunity to say goodbye before her unexpected passing, and so the funeral was the Applicant’s only opportunity to say her final farewells. However, so great was the fear of harm should the family return to Colombia, she chose to remain in Australia and lose the opportunity to attend her mother’s funeral or be with other family at this time of great loss.
ii) The Applicant acknowledges that only their home address was listed on the 866 application,
but that this is because they moved so frequently between numerous other locations and, as their location kept changing, they didn’t view these as permanent address. Due to the lack of
permanency at any of the temporary housing they took refuge in, they did not include them as
“addresses” on their application.
iii) The Applicants had been threatened not to go to the police or to report events to the
authorities. While they remained in Colombia, they were too afraid to defy this threat for fear of
repercussions from FARC, who they believed would cause them serious harm or possibly even
take their lives if they contravened their instructions. It was only when they knew they were
leaving the country, and so would be harder to reach and harm/kill, that they felt safe enough to
come forward. There was some initial confusion during the Tribunal as to the date of statement
and date of arrival in Australia, but this was due to the difference in time zones and crossing the date line when travelling to Australia. The report to the Fiscalia was made on the same day that they were leaving Colombia, for fear of the consequences if they remained in the country. (The report was made in the morning and the flight was in the afternoon on the [Day] April 2016
Colombia time zone GMT-5 or UTC-5, which means it was -15hr compared to Australia AEDT
or UTC +11:00).
iv) The Applicant submits that she would still have fully assisted the investigation in any way
possible. For example, this may have been by giving written evidence from the safety of being
located in Australia. Or by returning if it was unavoidable, but whilst knowing that her sons
would still remain safe overseas and that she would have the protection of the authorities when
doing so, mitigating the risk of harm at the hands of FARC. Or in any other way she could or that the authorities requested. She strongly disagreed with the actions of FARC (not just with regard to the personal threats made to her, but of the group in general) and would have made best efforts to assist and to see justice done.
v) The Applicant submits that [the third applicant] was pulled out of study while the family were hiding out and living in different places. Instead he began working at a secure compound, with private
transportion [sic] between home and work, and where they felt he was safe from FARC while doing
so.
Further Submissions
5. Our client has instructed us to stress that while FARC has allegedly disbanded in Colombia and no longer operates as an organised guerilla [sic] group, many dissident members and factions still exist in the country. Although FARC may no longer exist in the form that it did when they left Colombia, this does not mean that the threat of serious harm does not still exist from individual former members.
6. This risk has been heightened by the Applicant making a Fiscalia report, as there is every chance that her actions were leaked back to FARC at the time, through corrupt authority members. Just because a labelled guerilla group no longer operates in the same manner as at the time the family left Colombia, criminals of this nature often bear grudges and there is a legitimate chance individuals would seek retribution if they were to return.
7. The Applicants genuinely believe that they remain marked targets and that the threat of
disappearance, torture, death or other serious harm stills exists if they were to return to Colombia.
8. We refer the Tribunal to the previous pre-hearing submissions of 3rd January 2023 regarding the credibility of claims; the existence of a well-founded fear and risk of harm and persecution; and the lack of suitable alternatives for relocation to another country, and we submit that all of these reasons also still stand.
9. Finally, the Applicants would like to submit a statement, written by [the first applicant], which they have requested accompany these submissions. This statement includes further evidence which the Applicant would like to be taken into consideration, which she failed to stress during the Tribunal hearing due to being somewhat overwhelmed by the proceedings. This document is attached as Annex A [.]
Conclusion
10. For all of the reasons stated above, we submit that the Applicants’ continue to live with a wellfounded [sic] fear of persecution in Colombia, and there is a real chance that if they are forced to return to Colombia, they will suffer from serious harm.
11. Further, the Applicants have a firm belief that they cannot avail themselves to state authorities or any government for protection given that their previous attempt was futile.
We hope that the above submissions are taken into consideration wholly and cumulatively when deciding the outcome of the Applicants’ merits review hearing.
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.[17] 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.[18]
[17] MIMA v Rajalingam (1999) 93 FCR 220 .
[18] 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.[19] 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.[20]
[19] 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
[20] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that FARC was active in 2015 and may have had an urban network in Cali. I accept the general position to the effect that FARC had a particular political and socio-economic agenda. I can accept that an urban network of FARC, in carrying out its operations, would have been as ruthless as it is reported to have been throughout the decades-long civil war in Colombia. I can accept that Colombian citizens would be reluctant to co-operate with FARC even under coercion lest they be viewed and treated as collaborators by the governments that were in power throughout the conflict. I accept that the Peace Accords of November 2016 brought to a significant extent an end to FARC in its form and character hitherto. I give weight to evidence of FARC repudiating its past practices and integrating into the democratic political process in Colombia. Whereas some people, like the applicants in this case, hold the view that FARC is not dismantled and still operates in Colombia, I find that they, including the applicants, are actually talking about smaller, disparate and fractious FARC dissident groups who have moved away from trying to achieve revolution in Colombia, being preoccupied, as they evidently are, with competing against each other for control of illicit trade, such as in drugs.

The applicants claim fear of being persecuted either directly or indirectly, as family members, for reasons of defying in individual request by a member of FARC to hide possible contraband from being confiscated by Colombian authorities. The claimed fear in this instance is of retribution from a criminal organisation or its remnant followers for not co-operating with a criminal person (or persons) in an arguably criminal act. The essential and significant reason for the harm feared is not one of the five reasons cited in s.5J(1)(a) of the Act. The essential and significant factor for the harm feared in this case appears to be refusal to participate in a specific criminal act. The harm feared is revenge for refusing to participate in that act. All this being so, there appears in this case to be insufficient nexus with any of the five criteria in s.5J(1)(a) of the Act.
The applicants argue, however, that [the first applicant]’s refusal of FARC’s demand on her and defiance of its’ cadre’s threats constitutes active opposition to FARC, and not merely the lack of support or tacit opposition to FARC shared within the broader Colombian population generally. They claim that her action in openly refusing to collaborate with FARC discloses a “political opinion” that brings her claims within the purview of s.5J(1)(a) as claims relating to “political opinion” and, implicitly includes then as members of the “particular social group”.
Having considered all explicit and implied arguments on this issue, I am not satisfied that the applicants claims have any nexus with s.5J(1)(a) of the Act.
In any event, in view of the many inconsistencies incongruities and evident improvisations in the facts in this matter, I am not satisfied that the applicants’ substantive claims in this case are credible.
Generally, I find that [the first applicant]’s account of having been accosted by the FARC cadre is implausible. I should not expect [the first applicant] to be able to account for the actions, say, of a fool or bunch of fools working for FARC at that time, but on close examination of the facts, considered cumulatively, I find that she has fabricated the whole story about the cadre who demanded that she hide the box in the factory. Given the evident sophistication and ruthlessness of FARC, including its urban networks at the time, I consider it far-fetched that FARC would hatch a plan to hide a cache of apparently sensitive materials in a factory, and expect to keep it there until required, by asking one of its fifty floor staff instead of its owner to help. [The first applicant] might be able to put a box in there, but that in itself would not protect it from discovery or removal by others. In this way, the story strikes me as having been invented for the purposes of this application. Also, given FARC’s notoriety for being ruthlessly coercive, I find it inconceivable in the claimed circumstances that the attempt to coerce [the first applicant] dragged out over three encounters over two months. If it can reasonably be said of an implausible factual account that it lacks the ring of truth or an air of reality, I find that [the first applicant]’s story has the air of fabulation in its laying out of three encounters evenly spaced ever the first weeks of three consecutive months. That in itself does not mean that every account with such a characteristic will be a false one, but I cannot see on the facts before me that this arguably leisurely approach to getting [the first applicant] to collaborate with FARC could have served the latter any logical or tactical purpose, given the apparently urgent demand it was making, through the alleged cadre, to resolve something important to the local network at least before the signing of the then-seemingly imminent Peace Accords. I find it somewhat implausible that, given what she claims to have known about FARC at the time, [the first applicant] purportedly began changing the way she and her family lived and worked only after the third purported third encounter with FARC: its reputation was not enough to cause her to change behaviour after the first encounter; the threat of “consequences” was not enough to motivate her to change her behaviour after the second. Again, this strikes me as implausible.
Implausibility alone is not necessarily enough on its own to found a conclusion to the effect that an account is unreliable. On this note, I draw attention to the multiple, discrete instances of implausibility discussed above. In addition, there are several contradictions and inconsistencies in [the first applicant]’s account of what happened during the alleged three encounters with the cadre, and in her evidence about what she and her family did afterwards.
[The first applicant] was inconsistent as to whether she was aware of the presence of only one FARC cadre throughout all three encounters. I consider her claim about having seen two cadres a late invention aimed at making her mother’s purported May 2015 report to the Fiscalía appear more reliable. As a result [the first applicant]’s later evidence and, purportedly, her mother’s is inconsistent with claims [the first applicant] repeatedly made in writing and orally over time.
[The first applicant] herself gave inconsistent evidence about the number of occasions on which FARC threatened to harm her son [the third applicant]. She admitted at the Tribunal hearing that what she said in her purported report to the Fiscalía was incorrect. She said it had been difficult to remember everything at the time. Having considered the evidence in this matter as a whole, I do not consider that a satisfactory explanation for the discrepancy.
[The first applicant] claimed to have removed [the third applicant] from his [college] in October 2015 after hearing, in the first week of that month, the FARC cadre’s threat to kidnap him. However, evidence in the PV application indicates that [the third applicant] ceased studies in September 2015, before the threat could have been made. The claimed chronology is inconsistent. [The first applicant] did not suggest that she took [the third applicant] out of college after hearing the FARC cadre say, during the second encounter, that there would be “consequences.” She clearly said she did so after the threat was made explicitly about her son. On consideration of the evidence in this matter as a whole, I do not accept that [the third applicant]’s withdrawal from studies had anything to do with that specific threat, as [the first applicant] claimed in oral evidence at the hearing.
In addition to all this, there is the evidence of [the first applicant], [the second applicant] and [the third applicant] all continuing to work through the latter part of 2015 and up to April 2016 when they all left for Australia. The applicants, through their adviser, have tried to explain how they managed to do this, particularly in the post-hearing submission, in which it was claimed that [the third applicant]’s employer used to convey him door-to-door from home to work and back for eight months. There was an opportunity for [the first applicant] to provide this information many times before it appeared in the post-hearing submission, but she never provided it. This new claim sounds like the new and seemingly improvised claims that [the first applicant] introduced during the Tribunal hearing: about having been regularly hiding in a holiday home to avoid being found by FARC and yet not missing work throughout the relevant period thanks to [the second applicant] driving her door-to-door.
The post-hearing submission argues that the various places in which the applicants stayed between October 2015 and April 2016 were too numerous to list as “addresses” in their PV application, but that in itself would not have stopped then from claiming that they made use of such places during the period after the threat to kidnap [the third applicant] was made. Quite far from doing this, [the first applicant] described in her statutory declaration the time she spent, after hearing that threat, talking with family and friends about it and of her fear of it being carried out. She did not, in that declaration, mention hiding anywhere. Furthermore, she did not mention it in her 3 January 2023 statement to the Tribunal, and it was not mentioned in her adviser’s pre-hearing submission which, from the way it was drafted, appeared occasionally to relate her claims verbatim.
Looking at the evidence discussed above as a whole, I do not accept that [the first applicant] was ever approached by any FARC cadre as claimed, I do not accept on the evidence before me that FARC has ever contacted her in any way, I do not accept that FARC ever threatened to kidnap her son [the third applicant], I do not accept that she and her family hid intermittently in a holiday hoe or anywhere else, and I do not accept that three of them only continued going to work up to April 2016 because they needed the money and were able to be transported door-to-door.
In short, I find [the first applicant] a comprehensively unreliable witness in this matter such that I do not accept that her substantive claims about what happened to her and her family in Colombia are truthful.
[The first applicant] claims that the two reports submitted are contemporaneous evidence of the genuineness of her claims. On this I have two things to say: these two documents are merely manifestations of claims, not corroborative statements in any way; in addition, I find [the first applicant] so unreliable in this matter that I simply cannot give either document any weight. It is therefore unnecessary to find whether they were ever genuinely created and officially logged, although in the case of [the first applicant]’s own Fiscalía statement, it is hard to conceive from its vague and threadbare content that it ever was.
[The first applicant] claims that the genuineness of her family’s application led to the difficult decision to remain in Australia and not to return to Colombia for her mother’s funeral because they all feared for their lives there. I give that claim no weight, due to my findings above, and also due to the facts that the applicants were all here on Bridging A visas, which would not have permitted them to re-enter Australia to continue with their PV application, irrespective of where they went, let alone the country from which they were claiming protection.
It will be recalled that I put particulars of information to [the first applicant] under the protocols of s.442AA of the Act. That information essentially was about her sons’ oral evidence not appearing to be consistent with the information about them in the PV application. The post-hearing submission argues that the two sons might have felt somewhat overwhelmed having to give evidence about childhood from memory after more than six years here. I accept that. I make no findings against the applicants on the basis of the information put to [the first applicant] under s.424AA at the hearing.
That said, the evidence about the two sons that is provided in the original PV application stood uncorrected by the applicants right up to the day of the Tribunal hearing. That evidence is to the effect that [the third applicant] left college in September 2015 to work for [Company] until April 2016, and to the effect that [the fourth applicant] attended primary school all the way up to April 2016. [The first applicant] says that at least some of this information is erroneous and probably found its way into the PV application unchecked due to help from various individuals who helped fill out the forms in English. On the evidence before me, I do not accept it is erroneous. It supports my finding to the effect that the applicants led unremarkable lives day-to-day before and after they obtained visas for Australia in November 2015 and until they eventually used them to travel here around five months later.
It is shown above that the applicants’ refugee claims are not accepted due to lack of credibility. In the alternative, which would involve putting credibility issues to one side, I would still find that the applicants do not face a real chance of being persecuted in Colombia in the reasonably foreseeable future. This is because, according to independent information ,some of it provided by the applicants themselves, FARC, particularly in Colombia’s cities like Cali, has been disarmed and integrated into the country’s democratic political process having repudiated kidnappings like the one threatened in [the first applicant]’s account of events in 2015. There is no evidence that the cadre or cadres described in her claims are still alive or that anyone else with a connection to a remnant FARC group would recognise her or her family. It is therefore bald speculation in my view that either of the sons in this matter would be kidnapped and recruited, let alone found by authorities and accused of collaboration with an insurgency or illegal operation of any kind, notwithstanding the evidence of sporadic killings of social leaders and some of others, in some cases by leftist guerrillas, in recent years. I give more weight to the marginalisation of these groups, to their retreat mainly to rural and even mor remote areas, to the fact that they are quite often at war with each other over criminal turf, as it were, and to the indications in independent evidence of the state being willing and able to protect citizens generally from them. Overall I find that the applicants have exaggerated the threat posed by FARC remnant groups or “dissidents” in cities like Cali.
To the extent that the applicants claim that the two sons in this case have become habituated to life in Australia and feel insecure about integrating back into life in Colombia, where they have not lived for several years. It has been said or implied that they fear either feeling or being potentially alienated, or ostracised or even harassed or bullied in the event of return or removal to Colombia. This may be a claim relating to membership of a “particular social group” that could be characterised as “young Colombians previously raised abroad.” However, on the evidence before me, I consider it merely speculative that the two sons in this case would suffer serious harm or persecution in this context. I am therefore not satisfied that there is a real chance they would be persecuted for reasons of membership of this or even similarly-defined social groups.

100. Having considered all of the evidence before me in its entirety, I am not satisfied that the applicants face 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. Their claimed fear of being persecuted is not well founded. They are not refugees.
101. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
102. Having concluded that the applicants do 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.
103. 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).
104. “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.
105. 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.
106. “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.
107. 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.
108. Accepting that the applicants are nationals of Colombia, I find that Colombia is the receiving country in this matter.
109. The applicants’ claims to complementary protection are essentially the same as their refugee claims. Their main substantive claims have failed for want of credibility and for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, the applicants’ protection claims can no more succeed as complementary protection claims than they have as refugee claims.
110. 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 any of the applicants will suffer significant harm as exhaustively defined under s.5(1) of the Act.
111. Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusions

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION

113. The Tribunal affirms the respective decisions not to grant the applicants protection visas.
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 1127

7 February 2023

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Immigration

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Natural Justice

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