1725995 (Refugee)

[2023] AATA 351

1725995 (Refugee) [2023] AATA 351 (3 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms MELANY RAMOS (MARN: 9896522)

CASE NUMBER:  1725995

COUNTRY OF REFERENCE:                   Peru

MEMBER:Luke Hardy

DATE:3 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 03 January 2023 at 10:27am

CATCHWORDS

REFUGEE – protection visa – Peru – imputed political opinion – family member of Popular Action member – attempts at kidnapping – threatened sexual violence – return visit to Peru – police reports – father’s continued employment – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

“T” v  Minister for Immigration and Multicultural Affairs [2000] FCA 467
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
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 CLR 1; 243 FCR 1; 155 ALD 98
Nagalingam v MILGEA (1992) 38 FCR 191
Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827
Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741
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
Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963

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

1. 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 (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The four applicants are a family who are all citizens of Peru. [The applicant] and [her husband] arrived in Australia [in] February 2010 on student visas. The two [children] were born in Australia and there is reportedly a third child not included in this application. [The applicant] departed Australia for Peru [in] July 2013 and re-entered Australia [in] August 2013. She has remained here on various student and bridging visas. She says she was refused a further student visa and unsuccessfully sought merits review, in the former Migration Review Tribunal, of that refusal. The Tribunal affirmed the refusal on 23 June 2016 and the applicants’ PV application was lodged soon after on 20 July 2016. The delegate refused to grant the visas on 10 October 2017. The applicants lodged the present review application in October 2017. It was constituted to me around five years later. I find the application valid.

3. The four applicants appeared before the Tribunal on 13 December 2022 to give evidence and present arguments. It was established early, however, that only [the applicant] was making substantive claims, the other three depending on the outcome of her application for the respective successes of their own. I therefore proposed not to take evidence from [the applicant’s husband] or the two [children]. All present agreed with this proposed approach, but I indicated to [the applicant] and her adviser, who also attending the hearing, that if either felt a need for [her husband] to give testimony on any potentially relevant issue, I would consider any request to call him. As it happened no such request was made.

4. The Tribunal hearing was conducted with the assistance of interpreters in the Spanish- English medium. The first interpreter attended in person. After an adjournment, a second interpreter assisted by telephone.

5. For the purposes of this review, the applicants submitted a copy of the delegate’s decision on their primary application. That record contains a summary of their claims and of the factual and other relevant issues that arose in the course of the PV interview in 2017, and is not contested.

6. In the course of preparing to hear this matter, I found some correspondence in the applicants’ Department of Home Affairs (the Department) file that had been certified by an officer of the Department as “non-disclosable.” The material is confusing but from what I could make of things, it appears to be reporting an anonymous “dob-in,” as it were. The material, which I am not in a position to test, appears to allege that the applicants have not been truthful in their student visa applications, or protection visa application or both. The information lacks detail, but that does not mean that more detail would necessarily be reliable or capable of testing as, I repeat, the source is anonymous. There is no information arguing the authority, impartiality or competence of the material or its source. It may come from someone who does not like the applicants but no more can be assumed, if even that.

7. The non-disclosure certificate is invalid[1] as the material is identified by the Department as “internal documents and business affairs.” In any event, I have given no weight whatsoever to this material and make my decision in this matter entirely and exclusively on the merits of the applicants’ own substantive claims.

   [1] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 CLR 1; 243 FCR 1; 155 ALD 98

   Criteria for a protection visa

8. 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.

9. 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.

10. 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).

11. 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.  

12. 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

13. 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

14. The key issue in this case is whether, on accepted evidence, the applicant is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Claims

16. [The applicant] was born in [year] and mostly raised in [Town 1], a town of around 50,000 people, lying around [distance] km from Lima in the San Martín region of northern Peru. Her parents are still living. Her father still works. Her mother is a housewife. She has a younger brother, born in [year], who is now a [student] in Iquitos, which is an Amazon port city in northeast Peru, population over 406,000.

17. [The applicant] claims to have attended primary and secondary school between [specified years], twelve years in all. She claims she was home schooled for a year in [specified year], but this evidently did not prevent her from completing secondary school the following year, after which she immediately proceeded to undertake and complete studies to be [an occupation 1] between [specified years]. [The applicant] applied for an Australian study visa on [29 December]. She attended three English language courses between 2010 and 2013. She returned voluntarily and temporarily to Peru for about five weeks in between semesters in 2013.

18. [The applicant] has variously lived in [Town 1] and Lima. She told me at the Tribunal hearing that her parents respectively had jobs that involved moving the family from [Town 1] to Lima and back over the years. She did not show these changes of address in her original PV application.

19. [The applicant] claims her father was elected a councillor in the local municipal government [between specified years, after which] when he declined to run for further office. She claims he was a member of Acción Popular (Popular Action; AP) which is nationally a centre-right minority party that now holds around 16 seats in the 130-seat Peruvian national congress. Evidence supporting this claim includes photographs described as depicting [the applicant’s] father campaigning and attending constituency meetings and a 6 December 2022 letter from the AP’s [Official A] in [Town 1] attesting to [the applicant’s] father being a member of AP who assisted in the preparation of regional and municipal government plans for [Town 1] in 2022 and who has been actively involved in other party functions locally. For the record, the AP letter does not suggest that [the applicant’s] father or any other active AP members have ever faced any potentially relevant harm or hardship.

20. [The applicant] also claimed to the Department that her father was an administrator (public servant) working for the judiciary in [District 1] for a period beginning 2006. I note that [District 1], population around [size], is a town in the far south of Peru. However, at the tribunal hearing she said her father worked from 2006 to 2009 as an administrator in in [District 1’s] health service. She said her father had consecutive public service jobs in Lima from 2009 onwards, up to the present day. She also claims her father ran a [service 1] business in and around [Town 1] from 1999 for a number of years.

21. [The applicant’s] substantive claims appear in a 2 May 2017 statement submitted to the Department through her adviser. Essentially, [the applicant] claims that her father was harassed and threatened from about 1994 onwards by political opponents who wanted him to quit politics. She claims that her father was told that if he did not quit politics, she would be kidnapped and harmed physically and sexually. She claims that this is why her father did not stand for re-election in [year], although the harassment continued because he did not quit the AP.

22. [The applicant] claimed to have been the subject of repeated kidnaping attacks. In her statement to the Department she described an incident that occurred when she was in [specified grade]. It was  confirmed at the Tribunal hearing that in the original Spanish-language statement said that she remembered well that this happened while she was in [specified grade], which would have been in 1998. [The applicant] claimed that on that occasion she and her family returned from a restaurant via her [Relative A’s] place to find a dead animal at their front door and a written threat that she would be hanged. At the Tribunal hearing, [the applicant] said this episode happened in 1996 when she was in [earlier grade]. She denied ever having suggested that it had happened while she was in [the specified grade]. She denied ever having suggested it occurred in 1998. I put to her that her Spanish-language statement, in referring to the [specified grade], says “recuerdo bien.” When I read out this Spanish phrase, the interpreter translated it as “I remember well.” When the relevant parts of her statements were read to her in Spanish and English, including the part where she said “recuerdo bien,” she said that there were so many dates to recall that she got them mixed up in her statement. She then sought to reply on the claim about the event having occurred in 1996 when she was in [earlier grade]. I asked her if her 2 May 2017 statement contained any other unreliable or “mixed up” information and she said, “Hopefully not.”

23. [The applicant] claimed that in 1998 she was due to attend a school camp to which her parents were wary of sending her. She said she was allowed to go on the proviso that the school allow her parents to assign her an individual security detail. She said in the statement that this private security detail and the camp’s on security measures probably stopped “bad people” from getting inside. Insofar as it suggests that a kidnapping was prevented, this claim struck me as baldly speculative. I asked [the applicant] for detailed information about how her persona security was provided. She said that there was one security officer assigned to her. I asked for more detail about what the officer did and her response was vague. To be fair, though, I was asking someone to recall adult activities going on around her for a few at a time when she was [age range] years old.

24. [The applicant] said her family received daily threats including a violently suggestive telephone call that she “unfortunately” answered in 1999. She said in her 2 May 2017 statement that this call made her even too scared to go to the local store to buy biscuits.

25. [The applicant] claimed in her 2 May 2017 statement that there was an attempt to kidnap her by six people in a car who were thwarted by the police. She said this happened on the family’s way home from a place called [name]. She said the police took statements from her family. She also said the chief of police refused to accept the statements taken, speculating in her statement that the chief had been bribed. I asked her about this allegation and she provided no information to suggest that it was anything more than speculation. I asked her why a police service that had seen the event and taken statements would have ended up behaving in this way and she said that the [Town 1] police station was small and its response to citizens’ reporting incidents depended on who was on duty at the time.

26. Up to this stage in [the applicant’s] written statement, she and her [brother] were both living with their parents. She claims that after 1999 (and evidently before 2001) her parents sent her and her brother to stay for three months with her [aunt] in Lima. There were evidently no potentially relevant problems in Lima that time. [The applicant] claimed she commenced secondary school in [Town 1] at the beginning of in [specified year] and continued there until the end [of specified year]. She described an episode during this time when a “suspicious” car followed a vehicle in which she was returning home from a sports carnival. She said this caused her to cease attending school for “a long period” which she also described as a time during which threats and harassment stopped. She said this “long period” was about a year, during which she spent another three months, which she described as “holidays” in Lima. It appears these trips to Lima coincided with school summer holidays.  

27. [The applicant] described another incident, this time near [town name] in about 2002. She said the car in which her father was driving her family was shot at by gunmen in another vehicle. She said her father called the police in [Town 1] police station and they sent a police car to meet them and escort them safely back to [Town 1]. She said her father sent her to Lima for a period after that, but did not let her go there in [year] for fear that the criminals knew where the family stayed in Lima. She said she spent her [school holidays] with an aunt in another town and returned to [Town 1], apparently for the second semester. Reading this it struck me as od that a family that did not want [the applicant] to go to Lima for fear of her being found by murderous thugs kept bringing her back to [Town 1] where she proceeded to complete her education within twelve years, and successfully enough to take up studies in her preferred field. In any event, [the applicant] appeared to provide an alternate reason why her parents did not want to send her to Lima in [specified year].

28. [The applicant] described [a specified year] as a year of depression and locking herself in rooms because her parents did not approve of her boyfriend, who is now her husband, [named], who apparently lived in Lima. She said this culminated in a fainting incident in which she injured [herself] and had to be hospitalised. She said that when she recovered her parents took her on a trip to [Country 1]. She confirmed in her PV application that this holiday happened in [specified months].

29. [The applicant] claimed her family moved to Lima in 2005 to avoid persecution. This claim does not appear to sit comfortably with other evidence about [the applicant’s] parents avoiding Lima for fear of being found there by her father’s political enemies and their cronies. [The applicant] claims that she did not see [her husband] for two years as she was studying for her [tertiary] qualifications in another location.

30. [The applicant] claimed in her 2 May 2017 statement: “In 2006, as stated in the police document,” a phrase that, as confirmed by the interpreter was a correct and complete translation of the what was claimed in the Spanish-language original, “some individuals wearing hoods tried to force me into a car.”  (In the respective versions, the police document is referred to by the definite articles “el” and “the.”) [The applicant] said that people nearby helped to thwart the kidnapping attempt by screaming at the attackers who then fled. At the Tribunal hearing, I asked [the applicant] of she could direct me to the location of “the” police report describing this alleged 2006 episode, as I had not been able to find any in her files. In reply, she said there was never any police report because the police refused to let her family make one. I asked her to explain, then, to which police report she was specifically referring in her 2 May 2017 statement when she referred to “the police document.” In reply, she said, “Exactly. That’s why I don’t have the proof.” This response did not satisfactorily address the question as to why there was a n explicit reference in [the applicant’s] statement to an actual report that she was now saying had never existed in the first place. I asked her if this reference to an actual police document in the 2 May 2017 statement might be unreliable information, and she repeated that there had not been any police document describing the alleged 2006 incident.  I put to her that the claim in the statement might be taken to be unreliable and she said, “I have no police document.” After an adjournment in the hearing, [the applicant] told me she had been confused because, she now said, there is a police report about the 2006 incident. She went on to say that she just does not have it. She indicated that it was not one of the documents that had been requested as evidence in this case. This claim, however, does not seem to sit with the explicit reference in the 2 May 2017 statement to the presence of the police document in [the applicant’s] body of evidence. Her claims about the 2006 incident remain unsupported and there is unresolved inconsistency in her evidence as to why. My overall impression on the evidence before me as a whole is that no such report has ever existed and that [the applicant’s] reference to one is unreliable.

1. [The applicant] similarly claimed that there was a 2009 attempt to kidnap her. She provided no detail about this but said the episode unfolded “as stated in the police report.” However, there is no such police report describing that incident in evidence before me, and none appears to have been submitted to the Department. Taking account of [the applicant’s] evidence about the alleged 2006 “police document,” my overall impression on the evidence before me as a whole is that no report about the alleged 2009 kidnapping attempt exists and that [the applicant’s] reference to there having been one is unreliable.

2. [The applicant] claimed in her original statement that her parents were feeling “tired” and decided she should go into exile outside of Peru. She said that they found out about student visas (in Australia). She said she and [her husband] applied for student visas, were married in December 2009 and received their visas in January 2010. She also claims that at that time they were both working in jobs from which they were able to resign. She said they left Peru [in] February 2010.

3. [The applicant] did not apply for asylum in Australia. In 2010, she faced cancellation of her student visa but made submissions to the department that helped her to avoid it. I asked her why she did not apply for a protection visa, since her statement indicated that protection rather than study was her true objective in leaving Peru in 2010. In reply, [the applicant] said that she felt free in Australia and never thought she would ever be going back to Peru. She appeared to imply here that she expected the fruit of studies in Australia would eventually deliver her permanent residence. Because [the applicant] said that she hoped and/or believed she would never have to return to Peru, I reminded her that seemingly incongruously she returned there voluntarily in 2013. She said she did so because she was missing her family and because her father was sick. I put to her that the dates of travel out of and back to Australia appeared to coincide with an Australian college semester break. She acknowledged that this was so. I asked her if she planned her travel according to her academic year rather than in the context of anything else. In reply, she said her father had been sick prior to the semester break and that she would have travelled sooner to be with him but for the fact that she would have had her student visa cancelled had she gone earlier. She said she could not afford to lose her student visa as “sooner or later” she would have been persecuted if required to return to Peru. Here, [the applicant’s] evidence appeared incongruous, or at least confused, as she was arguing that in 2013 she feared persecution in the event of being removed to Peru, but nevertheless elected to go there in that very same year.

4. I put to [the applicant] that a person genuinely affected by family illness who asked her education provider about her possible options at that time would have been given very different information about being able to keep her visa, as all accredited education institutions in Australia make provisions for family illness in conjunction with the Department and its relevant regulations:

   You may experience an event during your studies that prevents you from studying for a period of time. If this occurs it is important that you contact a Student Adviser (International) who will provide advice and assistance.

   In limited compassionate or compelling circumstances (i.e. serious illness or injury, bereavement of close family members or a traumatic experience), you may be able to suspend your studies (e.g. take a leave of absence) for a period of up to six months.[2]  

   [2] e.g.,

5. In response to this, [the applicant] said she did not know, which indicates that for one reason or another she did not apparently ask. Meanwhile, [the applicant] has provided no material to support her claim that her father was ill in 2013.

6. [The applicant] said in her 2 May 2017 statement, and also told me, that she was the subject of another kidnapping attempt on [in July] 2013, during her return visit to her family, then residing in the [named] district of Lima. She gave no detail about this episode in her 2 May 2017 statement. She said she went “here and there with girlfriends” until this incident overwhelmed her with “terror, as stated in the report.” She said that the kidnapping attempt caused her to bring forward her flight back to Sydney. I note that [the applicant] flew back into Australia [in] August 2013, which was about a month after the alleged [July] 2013 kidnapping. [The applicant] told me that her original return date was at the end of August and that after the kidnapping attempt she told her father she needed to pay the airline a surcharge to bring forward her flight back to Sydney. I put to her that it did not appear that she brought forward her Lima-Sydney flight by much, considering she further remained a whole month in Lima. In reply, [the applicant] said that [the departure date in] August 2013 was the earliest day she could arrange and that she stayed in her parents’ home.

7. According to her 2 May 2017 statement, [the applicant’s] return to Sydney was brought forward so early that it saddened her to be separated so soon from her parents. But according to her oral evidence, she stayed on another month. Next to the oral evidence, the claim in the statement seemed somewhat of a vague exaggeration.

8. I asked [the applicant] if her sick father was at home during her Peru visit and she said he was. I put to her that it would therefore have been natural to be staying there with him whether there had been any potentially relevant harm or not. She appeared to agree with this observation, but added that on the day of the kidnapping, which was purportedly [in July] 2013, she went out of the house to buy biscuits from a shop a block away. She said that people must have heard she was back in Lima because of the visits she had with relatives in the early days of the stay. In her oral description of this episode, the would-be kidnappers again tried to abduct her in a public space and were thwarted by witnesses who were shopping and passing by at the time.

9. I located only one “police report” in [the applicant’s] Department file. As it discusses alleged events of [July] 2013, I take it to be the last one to which [the applicant] referred in her 2 May 2013 statement. However, there were several aspects of this “report” that struck me as problematic. The document was evidently generated on [a day in] July 2016 and purports to reproduce a report originally made on that same day about an event that occurred back [in July] 2013. There is no evidence in the document of the report of the incident having been logged contemporaneously with the events it describes. Clearly, the accredited English translation says: “Date and Time of Registration: 13/07/2016 …” and “Date and Time of event: [in July] 2013 …” The report description is “INCIDENT ON THE ROAD N.: [Number].” The report then goes on, however, to describe an event that did not take place on a road, but more on that later.

10. I also noticed that in this purported police report, some of the data cited above appeared to have been placed beside what appeared to be the wrong headings: “Date and Time of Registration: 13/07/2016 …” stood next to a heading that says “INCIDENT” and “Date and Time of Event: [in July] 2013 …” was next to one that said “WRITTEN.” I noticed that these anomalies also appear in the Spanish original of the document. It seemed to me that whoever filled out the report might have gotten things mixed up. I drew this to [the applicant’s] attention and she said the police might have made a mistake. She said the anomaly might have been due to a typing error. The adviser suggested that this was normal procedure, but no evidence before me suggests that the information in this part of the document had been entered correctly. The impression left is of the document potentially having been formulated by an amateur. 

11. Recalling that this document purported to be a report of an incident “on the road,” I read through the contents with help from the interpreter for comment from [the applicant]. The report purports to document testimony given to its author by [the applicant], reporting in-person at a police station on [a day in July] 2013, about an event that occurred earlier that same day; however, it does not describe an attempt to kidnap her during a biscuit-shopping excursion. It does not describe any kidnapping attempt on that particular day, as the 2 May 2016 statement leads the reader to expect. Rather, the report states that [the applicant] was returning with her family from an outing when she discovered a manilla envelope under her parents’ front door. It says the envelope contained a letter addressing her directly in which its author(s) noted her return to Peru, and threatened both to kill her and run over her entire family. In this evidence, she is the focus of the persecutors’ threats and her father appears to be a background character. According to the police report, the letter allegedly went on to say that [the applicant] “should be grateful for the times she escaped from being kidnapped.” The report says that [the applicant] told the police on [that day in July] 2013 that “they had previously tried to kidnap her, but failed [in] their aim.” The second half of this “police report” describes, apparently as externally-observed fact, [the applicant’s] inner mental turmoil. It ends with the reporting officer, who gives his name and rank, saying that the report has been made for whatever purpose [the applicant] considers appropriate.

12. Meanwhile, whereas [the applicant] told me that her first week back in Peru was a week full of visits to friends and relatives, the report states that “she is trying not to leave her home.” I put to her that it seemed odd for a report supposedly written on the same day of the alleged incident said that she was “trying not to leave her home,” because it starts by telling the police she was coming back from a family outing on that day, and because she said in her 2 May 2017 statement that throughout the week prior to [that day in July] 2013, she went “here and there with girlfriends” with the “terror” not starting until that date.

13. I put to [the applicant] that the so-called police report about the events of [that day in] July 2013 was not a report about the alleged kidnapping attempt at the biscuit shop while she was briefly out of her family home. It did not describe a particular kidnapping attempt, let alone, as it were, “walk through” the events of would-be kidnappers having been thwarted with the help of members of the public who witnessed the scene. I put to her that the report was about an exclusively different event on that day, being the discovery of the threatening letter, albeit one containing a reminder of one or more previous kidnapping attempts. I invited [the applicant] to comment on this issue, involving a perceived factual discrepancy, and she merely repeated her verbal account of the kidnapping attempt outside the biscuit store. She said her attackers fondled her inappropriately. She said she screamed so much that people “came out and prevented the kidnap[ping].” She went on to say that one or two days passed and then the manilla envelope incident occurred.

14. This explanation struck me as anomalous for a number of reasons. One simple reason is that [the applicant] has claimed the terror of the kidnapping attempt caused her to hide at home and bring forward her flight out of Peru. But other evidence she has given, along with the police report, indicates that she was off participating in family outings, or at least one family outing, one or two days after the “terror” of that abandoned attack. This all seemed far-fetched in the claimed circumstances.

15. Another problem is that whereas [the applicant] says the kidnaping attempt occurred on [the day in July] 2013 and the manilla folder episode occurred one or two days later, the purported police report says that [the applicant] was at the police station reporting the manilla folder episode the very day it happened and that the date she came in to report it was [on that day in] July 2013. According to [the applicant’s] other evidence before me, the manilla folder episode could not logically have been reported on [that day in July] 2013 because it was still a day or two away in the future: it had not yet happened.

16. When I put the apparent absurdity of this situation to [the applicant] for comment, she said the attempted kidnapping occurred on [that day in July] 2013. I acknowledged that there was a passing reference in the police report to previous kidnapping attempts. Still, I asked her if, in her mind at the time, the actual kidnapping attempt outside the biscuit store had been a bigger event, for the physical disruption and violence involved, that the incident of finding the letter; she said it had been. I put to her it thus seemed anomalous that no details of the latest kidnapping appeared in the [July] 2013 police report. In reply, [the applicant] said the police scribe might have paid more attention to the letter in the manilla envelope because she took it with her to the police station. This assertion about having shown the letter to the police is not mentioned in the police report. [The applicant] also said that the police were not even interested in the fact that the kidnapping attempt had been witnessed.

17. I reminded [the applicant] of my concern about the [July] 2013 report describing an event that happened a day or two after the [date in July] 2013 kidnapping attempt: the event could not yet have occurred. In reply, she said she did not take the letter to the police station until a day or two after she found it because she had not wanted to leave her parents’ house. I undertook to consider this explanation but I find that it makes no sense as an attempt to resolve the factual anomaly before me.

18. [The applicant] submitted new evidence on the morning of the hearing. Some of it was simply recent reporting about the impeachment and arrest of the President, amidst widespread mass public protests,  and his position having been filled by Peru’s Deputy President. Another document, as already discussed, is the letter from the AP’s [Town 1] [Official A], attesting to the affiliation and ongoing service of [the applicant’s] father to the AP in [Town 1] as recently as 2022; this is apparently notwithstanding, as other evidence suggests, his long years of residence in Lima where he has been working as a public servant. As discussed, nothing in this letter corroborates the suggestion in [the applicant’s] claims that the AP or its members, including the author of this letter, face or have been facing any potentially relevant harm just for being involved in the AP at one level or other.

19. In addition to the material described immediately above, [the applicant] submitted translated photocopies of two more purported police reports. Both of these documents were generated on 30 October 2022. They were translated on 12 December 2022. One report was purportedly written and logged on 20 August 2017 and the other on 14 March 2019.

20. In the “2017” report, it is alleged that on the date of reporting [the applicant’s] mother was walking on a named Lima street when unidentified persons approached her, hit her  and threw her to the ground, further assaulting her without robbing her, and leaving her to assume that their motivations must have been linked to her husband’s political career.  In the “2019” report, it is alleged by both of [the applicant’s] parents that on the date of reporting they were the subject of abusive and threatening language from a group of persons travelling in a motor vehicle. In this instance, the location of the incident is completely omitted: the report does not state where the confrontation took place, whether [the applicant’s] parents were in another vehicle or on foot or how the incident ended. What is included in the report is a claim that the political activity of [the applicant’s] father was explicitly referred to in the course of the tirade.

21. I note that in both reports, the police scribe says the police have invited [the applicant’s] parents to ask for lifetime police protection guarantees. This was also suggested by the purported police scribe in the [July 2013] report.

22. I expressed concern to [the applicant] at the Tribunal hearing that no reference to these respective attacks on one of both of her parents had ever been made before these documents were submitted on the day of said hearing. The reports had not been foreshadowed. The incidents had not even been mentioned as incidents relevant to the review for which documentary evidence might be pending. All this is notwithstanding that [the applicant] applied for merits review on 24 October 2017, two months after her mother had allegedly been assaulted, and was asked in a 27 October 2017 letter from the Tribunal to provide any new information, material or written arguments “as soon as possible.” There was a request from [the applicant] on 11 July 2019 for a “Medicare letter” but no information, material or written arguments about either of the alleged 2017 and 2019 incidents.

23. In response to the concern about the later appearance of claims about attacks on her parents in 2017 and 2019,  [the applicant] said she “received the documents late.” I repeated my concern that in the five years since she applied for review, she had not even mentioned the fact of the two attacks until the day of the hearing, on which these two reports were submitted. Again, she said she “got the documents late.” I asked her to explain how reports respectively dated 2017 and 2019 took until 2022 to obtain and submit and she said her parents had been unable to go to the police station to pick them up. I asked her if her parents had told the police, on requesting the documents, that they would be unable to go physically to the police station to pick them up; in reply, she said, “No.” She then varied her evidence, saying, sometimes it can take a long time for the police to deliver reports like these to persons requesting copies of them. I indicated that this did not seem to explain satisfactorily the late disclosure of the fact that her parents had been attacked in 2017 and 2019. In reply, she said her mother broker her leg. I asked if both her parents had been debilitated by this for the five years since 2017 or the three years since 2019, and she said her parents were “late” in asking the police for the reports.

24. I asked [the applicant] when she first learned of the 2017 and 2019 attacks and she said she had not stayed much in contact with her parents over the years. This did not satisfactorily answer my question on its point, but she then said she had known since a few months before the Tribunal hearing. I asked her how she found out and she said that after she was invited to the Tribunal hearing, she contacted her father who told her about having reported to the police. It struck me as odd, in the claimed circumstances, that [the applicant] was claiming to have seldom been in contact with her parents when their circumstances, especially perhaps her father’s, were logically so central to her own protection claims.

25. I put to [the applicant] that the Tribunal is entitled to consider supporting documents in a case, as well as their provenance, with a not-uncritical eye, as it were, given for example that she herself had referred to corrupt behaviour amongst police and also given independent evidence of document fraud in Peru:

    Although not all law enforcement officials in Peru are corrupt, rampant corruption is known to exist at nearly all levels of the judiciary and police forces – the arrest and prosecution of counterfeiters are rather rare …[3]

    [3] Cho, S, Peru: The Counterfeit Money Production Capital of the World, 14 April 2016, Fraud Prevention Blog, This source was located on the Fraud Prevention Blog, which is published as a Blog on the website Fraud Fighter: The Leader in Counterfeit Detection, entity verification, available at where Fraud Fighter is listed at Copyright 2014 Glendora California, and states it provides compliance solutions and information for the purposes of fraud prevention.

1. Independent information indicates that amongst the reported instances of fraudulent use of documents, Peruvian travel documents, birth certificates and driver licenses are the main documents that appear to have been subject to fraud in Peru,[4] while a broad variety of documents, including “invented university degrees, false job contracts, and forged housing deeds”[5] have been reported to be available in Peru’s counterfeit industry.

   [4] Greenberg, R, Ciralsky A, & Phillips S, ‘Enemies at the gate’ 28 December 2007, NBC News - International Dateline.

   [5] Franklin, J  ‘Counterfeiting an art’: Peruvian gang of master fabricators churns out $100 bills, 31 March 2016, The Guardian,

2. [The applicant] indicated that she understood that the Tribunal needed to investigate the provenance, timing and other factors going to the reliability of documents submitted I support of a protection visa application. I pointed out to her that all of the “police reports” exclusively contain what she and other family members have alleged to police, there being no evidence of those allegations having been corroborated, and that this may be a relevant consideration in determining what weight to give them.

3. I put to [the applicant] that her completion of primary and secondary school education in twelve years gave the possible impression of stability over that period that might be considered to be at odds with the disruption and trauma she claimed to have suffered throughout. She did not agree with this position, emphasising the year she did not attend school. At one stage she said this was [a specified year]; at another, [the following year]. I note she also described this as a year in which much of her stress was caused by conflict with her parents over her relationship with [her now husband].

4. We talked about [the applicant’s] brother, who is named [named] and who, as noted, is a student in Iquitos. She said he is [age] years younger than her, which would make him [age] years old at present. She has also claimed he was born in [year] which would make him [slightly older]. I was interested in the fact that her brother, the son of her politically-involved father had evidently never been the direct subject of any threats or attacks by her father’s adversaries. [The applicant] said that this was because her brother had never lived with her or her parents. However, she changed this position in different ways, throughout her oral evidence, to such an extent that I formed the impression that she was improvising facts. 

5. [The applicant] claimed that her parents sent her brother to live with uncles and aunties. She said alternately that her brother had never lived with her parents and herself and that he had lived apart from them since about thirteen or fourteen years ago. As far as I could recall at that stage, this sounded like a new claim, as I recalled [the applicant] had described her brother as living with her parents and herself throughout her statement. [The applicant] had said in the statement that there had been one week during which her brother was babysat by her grandparents while she and her parents attended an event. She also talked in the statement about being sent along with her brother for stays with aunts and uncles. She described a car trip in which she and her parents were travelling with her brother. It was hard from this information to accept that the brother had never lived with [the applicant] and her parents, or that he was ever sent away at any time to live the rest of his life with other relatives.

6. I asked [the applicant] if this claim about her brother having lived separate from her family all his life was a new claim, and she said she had mentioned it in her 2 May 2017 statement. I have reviewed that statement and the claim about [the applicant’s] brother living apart from her family for most of his life with uncles and aunts is simply not there. In any event, [the applicant’s] evidence about arrangements for the care and upbringing of her brother continued to change. [The applicant] said her brother started living with his aunt and uncle at the age of [young age range]. However, the details she provided were of her brother living with his parents and her, his sister, and of his aunt being responsible for dropping him at and picking him up from his school. In this evidence, the brother was not living with the aunt. When I expressed concern about the quality of this evidence, [the applicant] said her parents put her aunt in charge of all her brother’s affairs. I questioned if this was what people in her parents’ alleged political danger would do. [The applicant] also said that the aunt lived nearby her family’s home in [Town 1]. [The applicant] said her brother was [age] when the family moved to Lima.

7. I put to [the applicant] that, on the information she provided me, her brother would have been easy to locate in and near her home, her aunt’s home is school and around [Town 1] and that it seemed anomalous that he was never targeted. In response, she said he was too young and small to be of interest to her father’s adversaries. Again, I put to [the applicant] that it seemed odd in the claimed circumstances that her parents would have placed their son’s security in the hands of an aunt whose tasks seemed little more that to do day-to-day things that, say, a mother who was not working might do. The aunt used to pick the brother up from [the applicant’s] parents’ home in the morning and drop him back there in the afternoon. I asked [the applicant] if her mother was working at that time and she said she was.

8. Overall, the reasons [the applicant] gave for her brother never having been targeted as a means of harassing her father were based on unreliable and seemingly improvised information. I have given this concern some weight in my decision on the facts overall.

9. [The applicant] claimed at the hearing that when her father tried to start a [service 1] company in 1999 his political opponents were against the venture and tried to thwart it. I asked why they would have been opposed to it, but she provided no cogent explanation.

10. I asked [the applicant] about whether she could safely and practicably relocate to a place, like Iquitos where her brother lives and studies, where she and her family would not face potentially relevant harm and she said she could not.

11. Towards the end of the hearing, which was after a twenty-minute adjournment, [the applicant] returned to the issue of the evidently non-existent 2003 police report. She said she had been confused in her earlier oral evidence. She said that a police report of that kidnapping attempt does indeed exist. She said that she simply did not have a copy of it. She indicated that this was because she communicated with her parents only “sporadically” and had not asked them to request a copy of that report. This means she never asked her parents to help her obtain that report even when she was preparing her original PV application.

12. [The applicant] concluded her evidence expressing fear that campesinos (peasant farmers) are taking over Peru. She said the government has been giving more power to the extreme left. She also said that if Australia removes her to Peru she feared for the welfare of her children as she would not be able to protect them.

13. Finally, [the applicant] said that Peru is currently “convulsed.” However, she did not provide any detail as to how this went beyond being a situation affecting the population generally.

    Independent country information

14. I have had regard to the independent country information including the news articles submitted by [the applicant] that discuss the impeachment and arrest of former President Castillo and his replacement by his Vice-President Boluarte. This information shows that although the former president tried to avoid impeachment by staging an autogolpe, i.e., a coup against the very institution to which he was elected, the democratic process generally prevailed. Other material[6] that I have read indicates that protests continue, causing disruption to traffic, work productivity, commerce and other conventional urban conditions, as crowds call for President Boluarte to call early elections rather than serving out the rest of Castillo’s term. As at the time of this decision, there has been some progress in that dispute, with the President announcing she will “submit a bill to Congress to hold elections in April 2024 instead of April 2026. “ Congress, which is led by a coalition that includes the AP, has reportedly rejected the early election request.[7] The unrest could indeed go on for some time, as [the applicant] has suggested, and where it may lead appears to remain a matter of speculation. In any event, I have not found evidence of the AP and its membership being targeted for harm in the course of this nationwide political crisis, or of a risk of harm to [the applicant] and her family personally, as distinct from one faced by the population of the country generally, notwithstanding that, as [the applicant] put it, Peru appears to be “convulsed.”

    [6] “Peru's new leader proposes early election amid protests,” BBC News, 12 December 2022,

    [7] “Peru’s Congress Rejects Constitutional Reform to Hold Early Vote,” Bloomberg, 17 December 2022,

15. I have surveyed independent information about the AP. I note that the party is a part of the Coalition that rules the current Peruvian Congress. This is a result of events in July 2021, when an alliance led by AP member María del Carmen Alva successfully negotiated an agreement to gain control of the Congress.[8]

    [8] Aquino, Marco, "Peru opposition to lead Congress in setback for socialist Castillo." Reuters, 26 July 2021,

16. I have had regard to independent information about kidnapping, acknowledging that it was more current in 2013, when [the applicant] last visited Peru, than it might now be. The US Department of State (USDOS) Bureau of Diplomatic Security’s Peru 2013 Crime and Safety Report noted that kidnappings had been on the rise in preceding years in Peru, and that that the number of kidnappings was underreported.[9]  Reuters reported on 26 February 2013 that “[c]rime in metropolitan Lima doubled between 2000 and 2011, with kidnappings and homicides about tripling, according to government data.”[10] I note that whereas actual kidnappings increased significantly in years leading up to 2013, the situation in [the applicant’s] case, by contrast, is that not one of the many kidnapping attempts she claims to have suffered was ever successful.

    [9] US Department of State Bureau of Diplomatic Security, Peru 2013 Crime and Safety Report, 2 March 2013, pp.1-2,

    [10] Wade, T and Taj, M, ‘Murdered journalist and rising crime unnerve Peru’, The Star, 26 February 2013,

    Findings in relation to s.36(2)(a) of the Act

17. 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.[11] 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.[12]

    [11] MIMA v Rajalingam (1999) 93 FCR 220 .

    [12] 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.

18. 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.[13] 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.[14]

    [13] 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

    [14] Sun v MIBP [2016] FCAFC 52 at [69].

19. Noting that there are some facts in this case, including dates and circumstances concomitant with claimed events  that [the applicant] has claimed to be able to recall well, and then apparently changed, I have had due regard to guidance from Australian Courts in relation to omitted and seemingly contradictory evidence, as summarised in the Tribunal’s Guidelines on the Assessment of Credibility (July 2015)[15]:

    27. Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. The tribunal will consider all the evidence before it to assess whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.

    28. When forming a view on the credibility of claims, the tribunal should consider the overall consistency and coherence of an applicant’s account.

    29. Traumatic experiences including torture may impact upon a number of aspects of an applicant’s case including the timeliness of an application, compliance with immigration laws, or the consistency of statements since arrival in Australia. They may also impact adversely on an applicant’s capacity in providing testimony of such events.

    30. There may be differences in evidence about the same event if provided by two or more persons. Such differences may be due to an individual’s ability to recall an event and the emphasis and perspective placed on particular aspects of an event. The tribunal should be mindful of these differences when assessing credibility. A person may not be able to remember all the details of his or her personal history or reconstruct the chronological order of particular events. A person may remember events that affected him or her most in emotional or physical terms but not the time sequence. Such confusion and forgetfulness do not necessarily imply that a person is not telling the truth. However, contradictions, inconsistencies and omissions in evidence may, although not necessarily, mean that a person’s evidence is unreliable and, therefore, lacks credibility. The lack of credibility of a person’s account because it is unreliable does not necessarily imply that the person is dishonest.

    31. A person may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons. A person may not reveal the whole of his or her story because of feelings of shame, for fear of endangering relatives or friends or because of mistrust of persons in positions of authority.

    32. The tribunal may doubt part of a person’s evidence if a person’s testimony is incoherent or vague or lacks the detail or knowledge where greater detail or knowledge might be expected of a person in the person’s claimed position or from the person’s social or cultural background. For example, the tribunal is entitled to have regard to an applicant’s level of knowledge of matters about which the applicant would reasonably be expected to know if his or her claims were truthful.

    33. The tribunal should be mindful not to impose too high a standard when assessing an individual person’s level of knowledge. The tribunal should not require a person to provide an unrealistic degree of precision and detail in statements if this knowledge would not be expected of a person in the position claimed by a person.

    [15] These Guidelines derive from various Court judgements, including Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827 per Tamberlin J at [9], upheld on appeal, Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741; Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963 per Goldberg J at [20] to [23]; “T” v  Minister for Immigration and Multicultural Affairs [2000] FCA 467 per Drummond, Matthews and Mansfield JJ at [27] to [47].

20. In this matter, [the applicant] claims to have spent much of her life in Peru being implicated in a campaign conducted against her father by his political opponents, for reasons of his political activities with AP. At times, however, [the applicant’s] evidence has suggested that she, rather than her father, was and is the person singled out as the direct target of these people, so much so that, apart from two recent alleged attacks on her parents, the alleged persecutors repeatedly singled her out from her parents and brother, and would even wait years for her to return to Peru before continuing their campaign, even though it was specifically her father who she says they intended to punish. Just at this level of scrutiny there appears to be a sense of unreality in [the applicant’s] claims. However, upon close consideration of her evidence overall, I have found many specific factual problems that, considered cumulatively, lead me to conclude that her claims are not truthful. This is notwithstanding the fact that a person may remember events that affected him or her most in emotional or physical terms but not necessarily in a consistent time sequence, and notwithstanding that confusion and forgetfulness do not necessarily imply that a person is not telling the truth.

21. I do accept that [the applicant’s] father is an active AP member who was also an elected councillor representing that party in the [Town 1] local municipal government [between specified years]. The submitted photographs other material such as letters from the AP office bearer support that claim; this is to say that I give some weight to the photographs and limited weight to the 6 December 2022 AP letter. I give limited weight to that letter because it does not explain how a person who has been residing in Lima for nearly a decade has been able to remain so highly active in a small local district over a thousand kilometres away. I also give the letter limited weight because it does not help to corroborate any of [the applicant’s] claims about her father, her family or herself having been harassed by political opponents or anyone else: nothing is said on that subject; and similarly, it provides no information to suggest that AP members have been suffering harm, let alone sustained or systemic harm, due to their support for the AP. Still, for the purposes of this decision, I am prepared to accept that [the applicant’s] father was a councillor for five years and performed other functions for the AP in the decades since.

1. It will be recalled that I asked [the applicant] why her father’s political opponents in [Town 1] continued to harass him (such as through threats against her) after he ceased being a councillor in [year] and eventually moved far away from his home district altogether. In reply, she said they continued their vendetta because her father continued actively supporting the AP and because they opposed the AP growing into a stronger national political entity. I have difficulty relying on [the applicant’s] analysis here. She has not provided any evidence to suggest that AP members and their families have been targeted, let alone in any sustained or systemic way over the years, in some effort to keep the party from growing. It is reasonable to expect that if [the applicant’s] father’s opponents were trying to stop the AP from growing nationally, there would be some supporting evidence, but none has been presented. Meanwhile, there is a particular claim on which [the applicant] seeks to rely that indicates that her father shifted focus from local politics to business. He later had a succession of jobs up until the present day, a fact that could be seen not to sit with the suggestion that his life and his family’s lives were not significantly disrupted. Meanwhile, some of [the applicant’s] testimony of her father circumstances after quitting the position his enemies allegedly wanted him to leave lacked detail and logic, such as when she told me that her father went into private business in or soon after 1999, only to find that his political opponents opposed his doing so. When I asked her to provide detail and explain the logic of all this, she was essentially unable to do either. There is no information, for example, about any discrete or ongoing attempts, say for example, to interfere with the business, or disparage it, or have it shut down. [The applicant] left me with the impression that the claim was a fabrication.

2. This concern shines a light on [the applicant’s] main claims, which involve two intimidating front-door discoveries and several unsuccessful kidnapping attempts, none of those attempts seeming to avoid or improve on the mistakes of the ones before them, as one might reasonably expect to see over time. In addition to this general lack of an air of lived reality, there are other problems with [the applicant’s] evidence about every one of these episodes.

3. As noted, [the applicant] claimed with certainty in the 2 May 2017 statement (“recuerdo bien / I remember it well”) that the discovery of threatening remarks and the hanged animal at her family’s front door occurred when she was in [specified grade], which would have been in 1998. At the Tribunal hearing, however, she said this episode happened in 1996 when she was in [earlier grade]. It will be recalled that she denied ever having suggested previously that it had happened while she was in [specified grade]. She denied ever having suggested it occurred in 1998. She explained that there were so many dates to recall in the preparation of the 2 May 2017 statement that she got them mixed up. Essentially now, she was suggesting that I should be cautious about relying on details provided in her 2 May 2017 statement, even those that she remembers “well,” the apparent corollary being that I should give more weight to her oral evidence, which is now five years older than what she gave to the Department. On their own, the date of the first front-door incident and [the applicant’s] age at the time are details the confusion of which can reasonably be argued to be the product of the kind of human error described in the Guidelines discussed above. The main point [the applicant] has made in 2017 and 2022 was that there was an early reaction against her father taking up local political office. With this in mind, one might argue that the earlier date, 1996 when [the applicant] was in [earlier grade], is more plausible because the later date suggests a curiously delayed reaction against her father. However, one might also argue that the later date supports the suggestion that [the applicant’s] father left local politics soon after (in [specified year], as claimed). One problem for the Tribunal is that it is over five years since the “[specified grade]” claim was made and, despite prompts to provide any new or corrected information that she could provide, [the applicant], who has been represented all along, had never previously tried to correct the record until confronted with the perception of possible inconsistency at the Tribunal hearing.

4. Meanwhile, there is an alleged second front-door incident, this one allegedly occurring in July 2013 and described in some detail in a police document generated on [a day in] July 2016, just before the original PV application was lodged. It is of concern to me that there is no reference to this incident at all in [the applicant’s] 2 May 2017 statement: a reasonable person would reasonably expect to see some reference to it in the claimed circumstances, particularly as [the applicant] had provided quite detailed testimony about other things, for example, when she went to summer camp with additional security and suffered no relevant harm there, and when she and her brother were not sent to Lima for summer holidays. [The applicant’s] position is that the [July] 2013 front-door incident did occur exactly as the police report states. However, it is hard on the face of things to regard the report as contemporaneous with the events it describes and, just supposing the police document is a genuine [July] 2016 retrieval of a report made [in July] 2013, it is still on its face merely a transcript of [the applicant’s] own words about what happened that day. One serious problem with this, as discussed, is that [the applicant], in her 2 May 2017 statement, not only omitted any reference to the front-door scene in this report but described having been involved in a completely different event on [that day in] July 2013: the alleged attempted kidnap outside the shop that sold biscuits.

5. There are other problems with the [July] 2016 police document, as also discussed above. For a supposed report of a fact or facts, it contains at some length a somewhat odd and seemingly unfiltered concentration on [the applicant’s] internal and subjective state of mind. Another problem is [the applicant’s] inability to situate the report and its date logically in a real, or even broadly realistic, timeframe. Allowing for the vagaries of human memory, there was some effort undertaken to explore this during the hearing, but that resulted in [the applicant] suggesting illogically that the front-door incident with the threatening letter inside the manilla envelope occurred one or two days after [that day in July] 2013, which was the date on which her police report was ostensibly made and logged; hence she was effectively suggesting the report was detailing an event that could not yet have occurred. Another problem is that, in her 2 May 2017 statement, she led the reader to expect that the police report would describe her having been kidnapped on [that day in July] 2013. She even suggested at the hearing that that was the event the report described, until I put to her that it described, rather, a whole different event.  Another incongruity is that [the applicant] claims that she became too terrified to leave her family home after the kidnapping attempt (whether on [that day in July] 2013 or not) but describes the subsequent front-door letter discovery as having been made upon coming home from a family outing. In addition, although [the applicant] claims she then made arrangements to leave Peru “early,” it is hard to see on the evidence that her departure was “early” at all. She claims she hid at home for the month after [that day in July] 2013, but as shown in this paragraph, her claims about hiding at home are inconsistent.

6. Meanwhile, there is the anomaly in the document’s purportedly official inscription regarding the date of the occurrence of the incident (given as “[a day in] 2016”), suggesting a possibly amateur hand in the making of the document.

7. All of these problems, supported by independent evidence of the ease with which official documents can be fabricated in Peru, lead me to find that I cannot rely upon the purported [July] 2016 “police” document being a genuine and factual police document. I thus give no weight to it.

8. I have asked myself if the [July] 2016 “police” document might merely be unreliable evidence of true facts, but for a number of the reasons given above, I am not satisfied that it could be. There are so many inconsistencies and chronological absurdities in [the applicant’s] evidence about the alleged [July] 2013 front-door incident and the alleged [same day] kidnapping attempt that I am unable to accept that either episode ever occurred.

9. My findings in relation to the [July] 2016 “police” document are all the mor confident in view of independent evidence regarding the ease with which falsified documents can be contrived and obtained in Peru.

10. These are significant findings with wider implications in this case, as they relate to invented and illogically-described incidents purportedly “supported” by a falsified document. It means that [the applicant’s] application is impeded by things that are much more serious and concerning that a few understandable, human lapses in recollection of dates, details and minutiae. I believe [the applicant] invented these events, probably around the time of her arguably tardy PV application, to give her account of persecution an element of greater currency.

11. Looking at the evidence in its entirety, I am also of the view that this is what [the applicant] has again done with regard to the purported 2017 and 2019 “police” reports relating to her parents. Having utterly no confidence in genuineness or provenance of the purported [July] 2016 “police document,” I give no weight to the purported 2017 and 2019 “police” reports or to [the applicant’s] explanations as to why it took so long for them to come to light. I was especially unimpressed by her claim about contact with her parents having been rare in recent years. She gave no reason for this and, in the claimed circumstances, a reasonable person would reasonably expect that a person in her situation would maintain frequent contact with her parents, say for one, to make sure that they are safe and sound, and two, the better to keep up to date with any information that might be relevant to her own protection claims.

12. In view of my negative findings about the alleged 2013, 2017 and 2019 incidents, and also mindful of my findings with regard to the three purported “police documents, I have great concerns regarding [the applicant’s] 2 May 2017 statement of claims. I am particularly concerned with her references to various kidnapping attempts that she said were substantiated by this or that “police document” that was ultimately never presented in evidence. I am also concerned by her shifting and inconsistent explanations as to why such material was absent from her submissions. My overall impression is that the 2 May 2017 statement of claims is not reliable.

13. Meanwhile, I find that [the applicant] gave me inconsistent and unreliable oral evidence regarding her brother, where he lived as a child and in whose care he did so, in order to try to explain, why he was never also a target of his father’s alleged enemies. I do not accept that [the applicant’s] brother was ever raised by or housed with relatives, although I am prepared to accept that an aunt perhaps used to help drop him at school and bring him back home from the latter because, as the evidence suggests, [the applicant’s] mother was working at the time.

14. On the evidence before me, I do not accept that [the applicant’s] father has ever faced potentially relevant harm or threats of same of from political or business rivals or anyone else for that matter. I do not accept that that [the applicant’s] safety was ever threatened or compromised as claimed. In view of having found the evidence of the 2013 front-door episode to be unreliable, I do not accept that the first front-door episode (the one with the dead animal) occurred, either in 1996, or 1998, or ever.

15. Whilst I am prepared to accept that [the applicant] might not have formally attended a particular school between [specified months], I do not accept that this was for the reasons she claims. Hence I give that hiatus no weight in this matter; rather, I give weight to the fact that notwithstanding this interruption, [the applicant] completed her secondary education in more or less the usual timeframe for a person her age at the time, and then proceeded quickly to sit and pass tertiary study. I find that this evidence of general continuity and stability in [the applicant’s] educational history is substantially at odds with the disruptive life she described in her 2 May 2017 statement and other evidence. 

16. I am not satisfied on the evidence before me that [the applicant’s] father lives day-to-day in fear or avoidance of potentially relevant harm. Whilst I am prepared to accept that there might have been rivalry and even confrontation during his time as a councillor, I find I cannot rely on [the applicant’s] accounts of how grave such things became. I also find that the evidence of [the applicant’s] father’s continued active support for the AP, even though he lives in Lima and his reference letter unexplainedly describes recent activities in [Town 1], is evidence of a lack of fear on his part of suffering potentially relevant harm himself or passively causing it to be inflicted on family members. I am not satisfied on the evidence before me that [the applicant], who I find to be a manifestly unreliable witness in this matter, faces a real chance of serious harm in Peru in the reasonably foreseeable future.

17. I have considered [the applicant’s] claims about the safety of her children in the event that she is not granted protection in Australia. However, I am not satisfied on the evidence before me that her children face a real chance of being persecuted for any reason in s.5J(1)(a), let alone in the event of her own PV claims about herself being unsuccessful.

18. I have carefully considered [the applicant’s] claims about Peru’s current state of what she called socio-political convulsion. On the evidence she provided, I find that this is a situation affecting the population generally. None of the evidence suggests that [the applicant] or her family including the other three applicant in this matter will be singled-out for potentially relevant harm, let alone serious harm amounting to persecution. Even if I accept that left-wingers, whose ambitions [the applicant] opposes, are seeking political advantage, I am not satisfied on the evidence before me that this gives rise to a real chance of [the applicant] or any of the other applicants in this case facing a real chance of being persecuted in Peru in the reasonably foreseeable future, whether, say, early elections are called or not.

19. On the evidence in this case in its entirety I am confident that [the applicant] is not a witness of truth. I am not satisfied that she faces a real chance of being persecuted in Peru in the reasonably foreseeable future for reasons of religion or any other reason in s.5J(1)(a) of the Act. Her claimed fear of being persecuted is not well founded. She is not a refugee.

20. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).

21. It follows that insofar as they are included in and affected by [the applicant’s] claims regarding herself, the other three applicants in this case are not persons in respect of whom Australia has protection obligations under s 36(2)(a).

22. However, there is also before me an implied claim about potential adversity faced by [the applicant’s] children in the event of arriving and having to live in a country where they have never previously lived. Considering this implied claim, I consider it reasonable to observe that migration by young children with their parents from one country to another does not, in and of itself, amount to serious harm. However, the implied claim here can reasonably be considered to relate to “membership of a particular social group” in that the applicant children may be viewed upon starting life back in Peru, by others including other children, as being tantamount to “foreigners” and even as “privileged foreigners” in view of their having been raised for several years in a potentially enviable economy.

23. Still, on the evidence before me, I find it merely in the province of bald speculation that the applicant children in this case will suffer harm amounting to persecution for reasons of their profiles as children raised abroad.

100.   Having considered all of the evidence in this matter in its entirety, I am not satisfied that any of the applicants in this case 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

101.   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.

102.   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).

103.   “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.

104.   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.

105.   “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.

106.   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.

107.   Accepting that the applicants are nationals of Peru, I find that Peru is the receiving country in this matter.

108.   [The applicant’s] claims to complementary protection are essentially the same as her refugee claims. Those claims have failed for want of credibility and because they do not meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant’s] protection claims can no more succeed as complementary protection claims than they have as refugee claims.

109.   Some of [the applicant’s] claims do not necessarily relate to s.5(1)(a) of the Act and therefore warrant separate attention here. For example, there is her claim about Peru currently being socially and politically “convulsed.” I am not satisfied, as shown above, that this situation will impact on [the applicant] or the other applicants for a s.5J(1)(a) reason, but I am prepared to accept that the socio-political situation in that country is currently in flux and that its stability is under some stress. However, I find o the evidence before me that the suggestion of this giving rise to a real risk of significant harm the applicants is based purely in bald speculation, such that I am not satisfied that there is a real risk of significant harm. Also, the evidence before me leaves me unsatisfied that the risk of harm, even if accepted at face value, is one that is faced by the applicants personally rather than by the population of the country generally.

110.   [The applicant] has also indicated that in the event of an unsuccessful PV application, she will be separated from her children. On the evidence before me, I find this claim based merely in bald speculation. [The applicant] has provided no evidence of circumstances under which such a separation might occur, and I give no weight to it.

111.   I have also considered the implied claim about potential adversity faced by [the applicant’s] children in the event of arriving and having to live in a country where they have never previously lived. I have already found that the chance of serious harm is, at best, based merely in bald speculation, such that there is not a real chance of serious harm arising for this reason. In light of this, it follows that the risk of significant harm in the context of removing the applicant children to Peru is no more real than the chance of serious harm.

112.   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 Peru, there is a real risk that [the applicant] or any member of her family will suffer significant harm as exhaustively defined under s.5(1) of the Act.

113.   Accordingly, I am not satisfied that [the applicant] or the other three applicants are person in respect of whom Australia has protection obligations under s.36(2)(aa).

Conclusions

1. 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.

   Other findings

115.   There is no suggestion that [the applicant] or any of the other three applicants satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, they do not satisfy the criterion in s.36(2).

decision

116.   The Tribunal affirms the decision 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.

…