1828217 (Refugee)

1828217 (Refugee) [2024] AATA 4034 (10 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sylvia Arroyo (MARN: 0640213)
CASE NUMBER:  1828217
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Mia Bailey
DATE:10 September 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 September 2024 at 5:53pm
CATCHWORDS
REFUGEE – protection visa – Colombia – political opinion – member of left-wing parties – local organiser and fundraiser – written threats from right-wing paramilitary group, continuing while in Australia – complaints to prosecutor and ombudsman – limited, low-level activity – return after receiving first threats and delay in applying for protection – ceased social media activity after threats – some threats general in characters – some inconsistencies and omissions in claims and evidence – son now Australian citizen – alternative residency pathways – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 14 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 5 November 2015. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The applicant provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application.
The applicant was represented in relation to the review. He appeared before the Tribunal, with his representative, on 7 August 2024 to give evidence and present arguments. His [Age]-year-old son, who is an Australian citizen, attended as an observer. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Relevant provisions of the Act are extracted in the attachment to this decision.
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 (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act.
It is the responsibility of the applicant to specify all particulars of the 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 in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1]
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
For the following reasons, I have concluded that the decision under review should be affirmed.
Background and receiving country
The applicant is a [Age]-year-old male from Bogota. His migration history, as outlined in the delegate’s refusal decision and pre-hearing submissions, is as follows:
i.He arrived in Australia [in] November 2006 on a Student (subclass 570) visa.
ii.He departed Australia [in] February 2008.
iii.He returned to Australia [in] August 2010 on a Student (subclass 570) visa.
iv.While in Australia, he lodged 2 applications for a Temporary Work (Skilled) visa (subclass 457) – the first was lodged on 14 May 2013 and subsequently granted; the second was lodged on 1 August 2014 and withdrawn on 13 October 2014.
v.He departed Australia [in] October 2014.
vi.He last arrived in Australia on a Visitor (subclass 600) visa [in] August 2015.
The applicant presented his Colombian passport to the Department in support of the protection visa application. The delegate accepted the applicant to be a citizen of Colombia and there is no contrary evidence before me. I find that the applicant is a citizen of Colombia, and that Colombia is his receiving country for the purposes of assessing his claims for protection.
Evidence before the delegate
Protection visa application
The applicant was represented in relation to his protection visa application. Relevant biographical information from the protection visa application is summarised below:
i.He married in [Year] and separated in [Year].
ii.He has one child: a son born in Australia in [Year].
iii.His parents and [brothers] reside in Colombia. [Another] brother resides in Australia and has Australian citizenship.
iv.He completed secondary school in [Year] in Bogota. Between [Year] and [Year], he completed a bachelor’s degree in [subject] at a university in Bogota.
v.He was employed as [an occupation] with [a] business in Bogota between [Year] and [Year]; [Year] and [Year]; and from [Year] until his final departure for Australia.
Regarding his protection claims, he stated that he left Colombia in August 2015 because he had received several death threats from the paramilitary group, Aguilas Negras (Black Eagles) due to his affiliation with left-wing political parties, Polo Democratico Alternativo (Alternative Democratic Pole) and Union Patriotica (Patriotic Union).
He provided a statutory declaration dated 5 November 2015 (First statutory declaration) with further details of his claims . A summary of relevant information from the First statutory declaration is below:
i.He has always been affiliated as a ‘militant’ with left-wing political parties and shared their ideologies. Since August 2009 he has been affiliated with the Alternative Democratic Pole and since October 2013 with the Patriotic Union.
ii.He first received a written death threat on 31 July 2010 (untranslated copy and English translation provided). It was delivered to his place of residence, a house owned by his mother in [Neighbourhood], Bogota. The threat referred to him by his first name and contained the logo of the Black Eagles. He didn’t place too much importance on this threat because he was scheduled to depart for Australia [in] August 2010.
iii.In October 2011, while in Australia, he received a second written threat from the Black Eagles (untranslated copy provided). It was again delivered to his former place of residence in [Neighbourhood] which had been rented to tenants. His mother collected the mail and opened the threat letter. This threat made him nervous, but he felt assured by being in Australia.
iv.He received no further threats between October 2011 and his return to Colombia [in] October 2014, so he did not feel concerned about returning. However, in February 2015, following his return to Colombia, he received a third written threat from the Black Eagles (untranslated copy and English translation provided). The letter was hand-delivered to him near his place of residence by a teenager. This letter was more personal as it indicated the Black Eagles knew he had returned to Bogota and made him very anxious.
v.On 9 March 2015 he lodged a complaint with the Fiscalia de la Nacion (General Prosecutorial Office or FISCALIA). Copies of untranslated supporting documentation, together with English translations, of the FISCALIA complaint are provided.
vi.He decided to apply for a Visitor visa to Australia in case he needed to leave Colombia. He lodged the application on 18 June 2015 and was granted the visa on 15 July 2015.
vii.On 27 July 2015 he received a fourth written threat from the Black Eagles (untranslated copy and English translation provided). It was delivered to the house at [Neighbourhood] and on 28 July 2015 the same letter was emailed to him. The letter included a photo of his wife and son. The letter states that they know he is in Bogota, is an active member of the Patriotic Union, and refers to several places that he frequents in Bogota. The letter also states that they hope his son does not suffer the same fate as his father.
viii.On 31 July 2015 he made a report to La Defonsoria Del Pueblo (Ombudsman’s Office). Copies of untranslated supporting documentation, together with English translations, of this report are provided.
ix.On 3 August 2015, he provided further evidence to the FISCALIA regarding the fourth threat.
x.After receiving the fourth threat, he decided to leave Colombia and booked a flight to depart [in] August 2015. He advised the Ombudsman’s Office in writing of his departure (supporting documentation is provided) and attended the General Prosecutorial Office to advise them of his departure.
xi.In September 2015, while in Australia, his mother informed him that a fifth written threat from the Black Eagles had been delivered to the house in [Neighbourhood] (untranslated copy provided).
On 15 August 2017, the applicant’s representative provided updated correspondence (untranslated copies together with English translations) between the applicant and the FISCALIA regarding his complaint. A letter dated 25 July 2017 from FISCALIA to the applicant advises that his ‘proceedings were closed due to atypical behaviour’ on 2 November 2016.
Protection visa interview
On 5 April 2018 the applicant attended a protection visa interview with the Department, accompanied by his representative. The interview was conducted with the assistance of an interpreter in the Spanish language. Relevant information from the interview, as summarised in the delegate’s refusal decision, is outlined below:
i.Regarding his involvement with the Alternative Democratic Pole and Patriotic Union, he stated that he participated in meetings and events such as marches. He clarified the period of his involvement in these activities as being between 2008 and 2010, following his first return from Australia.
ii.He did not report the first threat letter to the police because he and his wife were departing the country shortly after its receipt. He did not think to apply for protection following his second arrival in August 2010, even after receipt of the second threat letter, because he had a Student visa and was intending to apply for a subclass 457 visa.
iii.Regarding the photo of his wife and son included with the fourth threat letter, the applicant indicated that he did not know how the photo had been obtained. He decided not to tell his ex-wife about this threat in order to not cause her stress.
iv.Regarding the correspondence from the FISCALIA dated 25 July 2017 which refers to his proceedings being closed due to ‘atypical behaviour’, he stated that they had closed the case because they were unable to locate the applicant at his home in Bogota.
v.Concerns were raised by the delegate about the authenticity of the threat letters, noting that the letterhead and content can be obtained on the internet. The applicant responded that they were genuinely issued by paramilitary groups in Colombia.
vi.Asked what he fears if he returns to Colombia, he stated that the Black Eagles will know that he has returned and will carry out their threats to harm him.
On 18 April 2018, the applicant’s representative made submissions regarding the concerns raised by the delegate about the authenticity of the threat letters. The representative states that she has the ‘original’ threat letters and provides details of their appearance. The applicant submitted a further statutory declaration dated 18 April 2018 (Second statutory declaration) in which he reiterates that the threat letters are genuine and offers to provide originals to the Department.
Delegate’s refusal decision
In refusing the application, the delegate did not accept any of the threat letters to be genuine. While the delegate accepted the FISCALIA documentation to be genuine, this was found only to support the complaint and not the claim to have received threats from the Black Eagles.
The delegate found that the applicant’s political activities were limited and low-level and was not satisfied that they would warrant him being targeted as claimed.
The delegate also expressed concerns about the lack of any action being taken by the Black Eagles, despite the issuing of multiple threat letters and the applicant’s known presence in Bogota for a significant period of time. The delay in applying for protection was also taken into account. The delegate concluded that the applicant’s claims to have been threatened by the Black Eagles (or any other paramilitary group) were not credible.
Evidence before the Tribunal
Pre-hearing evidence
Prior to the hearing, the following additional documents were submitted to the Tribunal:
i.20-page submission from the applicant’s representative (Pre-hearing submission) together with a bundle of documents divided into 11 sections, including:
a)Delegate’s refusal decision and notification
b)Identity documentation for the applicant
c)Eleven threat letters received between July 2010 and May 2022
d)Documentation relating to the FISCALIA and Ombudsman Office complaints
e)Country information regarding the Black Eagles and paramilitary groups in Colombia
f)Documents relating to the applicant’s s 457 visa application
g)In Section F titled ‘National Police’ are copies of 3 untranslated documents described as ‘Mother’s statement confirming police attendance to house in 2018 and 2019’; ’13.03.2019 FU to National Police’ and ’04.04.2019 National Police response to follow up’; and
h)In Section I titled ‘Participation of Events’ are copies of 7 untranslated documents relating to Patriotic Union events.
ii.Statutory declaration by the applicant dated 13 June 2024[2] (Third statutory declaration)
iii.Statutory declaration by the applicant’s ex-wife dated 15 June 2024
[2] It is unclear whether the handwritten date is 13 or 15 June 2024. As the index to the bundle of documents refers to the date as 13 June 2024, I have adopted this date.
Relevant details from the Third statutory declaration are summarised below:
i.Details of the 5 threats received between 31 July 2010 and September 2015 are summarised, noting that other than the threat handed to him in person in February 2015, all were delivered to the house in [Neighbourhood].
ii.Since the refusal of his protection visa application, he has received a further 6 threat letters from the Black Eagles, as outlined below:
a)    Threat delivered in October 2019 to his former residence in [Neighbourhood] (untranslated copy and English translation provided).
b)    Threat delivered in November 2019 to his former residence in [Neighbourhood] (untranslated copy and English translation provided).
c)    Threat delivered in 2021 to his former residence in [Neighbourhood] (untranslated copy and English translation provided).
d)    Threat received via [Messaging app] on 5 April 2022 (untranslated copy provided).
e)    Threat delivered in May 2022 to his former residence in [Neighbourhood] (untranslated copy provided).
f)     Threat received via [Messaging app] on 22 May 2022 (untranslated copy provided).
iii.After receiving the [Messaging app] threats, he closed all his social media accounts and told his mother to throw away any mail addressed to him that was received at the house in [Neighbourhood] as he did not want her to be exposed to this material. He maintains contact with his family via a WhatsApp group chat.
iv.As to why the threats would have resumed after several years, he can only think it is because in November 2019 regional elections took place in Colombia and generic threats were sent in an attempt to invoke fear in voters who held an alternative view. He thinks the threats received from October 2019 are generic and coincided with political events in Colombia.
v.He acknowledges that he did not have a ‘heavy political affiliation’. However, for some reason he is known to the Black Eagles or persons claiming to be from this group. While some of the threats are more generic and could be a ‘pamphlet drop’, the third and fourth threats (received in February 2015 and July 2015 while in Colombia) were very personal and one was handed to him personally.
vi.He fears that if he were to return to Colombia, the Black Eagles would become aware of his return, as they did during his return in 2015, and target him personally. The fact that he has received threats from October 2019 indicates that he continues to be of some interest, and this may be heightened if he were to return to Colombia.
vii.He does not know if any further threats have been directed toward him after May 2022 as he no longer allows them to access him.
viii.He has shared custody of his son and provides financial support to his ex-wife for his son’s care.
In her statutory declaration the applicant’s ex-wife states that, based on what she has been told by the applicant, she is aware that threats have been made toward the applicant since 2010. She and her son have not returned to Colombia since arriving in Australia. She fears for the applicant’s safety if he were to return to Colombia. She confirms that the applicant has shared custody of their son, provides financial support for their son, and describes him as a wonderful father.
Oral evidence at hearing
Regarding his family in Colombia, the applicant stated that his parents are both retired. His father was previously employed with the [employer] and his mother as [an occupation]. His parents live in an apartment in the Bogota suburb of [Suburb], together with one of his brothers. His other brother lives in a nearby suburb. One of his brothers owns [a] business, which is where the applicant worked while living in Bogota. His other brother is employed in an office job.
He grew up in the family home in [Neighbourhood]. In around 2000, his parents moved to the apartment in [Suburb] and he remained living by himself in the [La Estrada house. When he departed Colombia in 2010, his mother rented the [Neighbourhood] house, which remains rented. When he returned to Colombia between October 2014 and August 2015, he lived with his parents in their apartment in [Suburb] as the [Neighbourhood] house was occupied by tenants.

Asked to clarify when he first became involved in left-wing political activity, he stated it was in 2009 to 2010, following his first return from Australia. He confirmed that he had no prior political involvement and none of his family members are politically active. Asked how he came to be politically active, he stated that he was invited by some friends and colleagues to attend meetings with the Alternative Democratic Pole and Patriotic Union. He liked what these groups stood for and decided to continue his involvement. Asked what he meant when he referred to being a ‘militant’ in his First statutory declaration, he stated that he was a follower or collaborator of these 2 political parties.
I discussed with the applicant that country information indicates that the Patriotic Union was not active until 2013.[3] He responded that they became more active from 2013 but they were holding meetings in Bogota in 2009 and 2010.
[3] Colombia Reports, Patriotic Union, 13 January 2014
Asked to clarify the nature of his involvement with the Alternative Democratic Pole and Patriotic Union, he stated that he attended their meetings which took place at political offices in the suburbs of Bogota. There were about 20 ‘organisers’ including him, who recruited others. He described himself as being ‘actively involved’, including in fundraising. He also attended marches or protests as a member of these political parties.
Asked whether any other members of the Alternative Democratic Pole or Patriotic Union received threats from the Black Eagles, he stated yes, most of the other 20 organisers that he knew started receiving threats in 2009. Asked why he didn’t receive threats in 2009, he stated that these members had been politically active for longer than him. Because of the threats, they left Colombia and are now in exile in [Country]. Asked whether any of them were harmed, he stated no because they left Colombia soon after receiving the threats. He confirmed that he continued his political activities after these members had received threats from the Black Eagles in 2009.
I asked the applicant about the documents provided in Section I of the bundle of documents, and the nature of his involvement in them. He stated that there were many events that he participated in and recalled events on 1 May. Asked specifically about the year that these events took place, he responded that he thinks it was in 2009 or 2010. The representative noted that some were sent to the applicant via email in 2015 and may relate to events in 2015. He stated that he received these documents via sharing of information on social media platforms.
Asked whether he had any involvement in political activities during the period he resided in Australia between August 2010 to October 2014, he stated that while not frequent, he sometimes shared information, for example about meetings taking place in Colombia, on [social media platforms]. Asked whether he had any involvement in political activities when he returned to Colombia between October 2014 and August 2015, he responded no, because he had limited time and there was ‘some uncertainty’ because of the threats he received following his return which caused him to feel unsafe.
Asked about any involvement in political activities since his return to Australia in August 2015, he responded that he shared information via [social media platforms]. When asked for further details, he stated that he was encouraging people to participate in political events that were taking place in Colombia. He ceased all social media activity in 2022, after receiving the [Messaging app] threats and no longer has any evidence of his social media postings.
I discussed with the applicant that he did not raise information regarding social media activity with the Department, including at the protection visa interview. As reflected in the delegate’s refusal decision, he stated that he had no further involvement in political activities after 2010. He responded that he was not specifically asked about social media activity and did not consider the sharing or passing on of information on social media platforms to amount to political activity.
I discussed with the applicant that in his Third statutory declaration he stated that the only reason he could think of as to why he started receiving threats from October 2019 was political events that were occurring in Colombia. I noted that if he had been sharing political material on social media, this could also have been a reason for bringing him to the adverse attention of the Black Eagles yet wasn’t previously raised. He reiterated that he did not view this activity as amounting to significant political activity, he was just sharing information on social media.
Regarding the third threat which was handed to him in person in February 2015, he stated that it was handed to him on a Sunday by a teenager on the cycleway around the corner from his place of residence at that time, which he confirmed was his parents’ apartment in [Suburb]. He agreed that the Black Eagles were aware that he had returned to Bogota and was living at his parents’ home in [Suburb]. He confirmed that no threat letters were received at the apartment in [Suburb]. Asked why the Black Eagles would continue to deliver threat letters to the house at [Neighbourhood] if they were aware that he was residing in [Suburb] during this period, he responded that he doesn’t know.
Regarding the fourth threat, delivered to the [Neighbourhood] house on 27 July 2015 and subsequently emailed to him at his Hotmail address, he confirmed that this email remains active but he has received no further threats via this email. I discussed with the applicant that this threat refers to him being an active member of the Patriotic Union. Asked whether it is correct that in July 2015 he was an active member of this group, he stated no, he had ceased his involvement by that time and was ‘just visiting’ Colombia but the Black Eagles just say what they want. Asked why this threat would be more personal and specifically target his wife and son if he was no longer politically active, he responded that ‘they think whatever they think’ and do not accept anything outside their belief system.
Regarding the fifth threat, delivered to the [Neighbourhood] house in September 2015, I discussed with the applicant that it refers to the Black Eagles knowing that he ‘got away’ and ‘sneaked out of the country’. Asked why they would deliver this threat to the [Neighbourhood] house if they knew he had departed Colombia and had his email address, he responded that he doesn’t know; that is how they act. He speculated that they may have wanted other people to open the letter and tell him about it.
Regarding the sixth threat, delivered to the [Neighbourhood] house in October 2019, I discussed with the applicant that this refers to ‘promoting messages in support and favour of the national strike on 21 November through social media’ and says they know he is participating in this from overseas. Asked whether he was involved in these activities, he stated that he was sharing information and videos on social networks about this particular strike, which was a large-scale strike resulting in the killing of many protesters. He encouraged people to attend and participate in events.
I noted that English translations had not been provided for the ninth, tenth and eleventh threats. The applicant read the content of these documents in Spanish which was interpreted by the interpreter. In summary, the ninth threat (delivered via [Messaging app] on 22 April 2022) and tenth threat (delivered to the [Neighbourhood] house in May 2022) contain threats to kill all persons who are left-wing followers or sympathisers.
Regarding the eleventh threat, the applicant clarified that this is in fact a photo of the tenth threat, taken by his mother and sent to him via WhatsApp. He confirmed that the only threat received via [Messaging app] was the ninth threat. Asked why the Black Eagles would start sending him threats via [Messaging app] in April 2022, he responded that he doesn’t know but this is why he closed his social media accounts.
Asked whether there is anything else he wished to tell me regarding his protection claims, he stated that his life would be at risk if he returned. He has peace and safety in Australia. He would be alone in Colombia and separated from his son and brother.
I explained that while I have not made my mind up about his claims, I have some concerns about the credibility of the claimed threats and, if these were accepted as credible, whether there is a real chance that the threats would be carried out.
Representative’s oral submissions
The applicant’s representative made oral submissions regarding the applicant’s late disclosure of his social media postings in Australia, reiterating that he did not regard the re-posting or sharing of information on social media to equate to political activities and noting that this would have been advantageous to his claims.
Regarding the credibility of the threats, the representative submitted that the Tribunal should have regard to the fact that alternative residency pathways were available to the applicant, including a subclass 457 visa. As such, there was no reason for him to fabricate threats to support a protection visa application.
The representative noted that she had the original threat letters at the hearing and offered for the Tribunal to view these documents. I sighted these documents at the hearing.
Findings and assessment
Findings of fact
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[4] and 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.[5] 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.[6]
[4] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[5] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[6] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
I have concerns regarding the credibility of key aspects of the applicant’s claims. While there have been some inconsistencies and omissions, I acknowledge that his claims regarding involvement in left-wing political groups in Colombia and targeting by the Black Eagles have overall remained consistent.
Despite some inconsistencies with timeframes, I accept that the applicant became involved with the Patriotic Union and Alternative Democratic Pole from 2009 until his second departure for Australia in August 2010. The Alternative Democratic Pole, a social-democratic party, is Colombia’s primary left-wing opposition party. It was formed in December 2005 from the alliance of two leftist political parties: the Independent Democratic Pole and the Democratic Alternative.[7]
[7] Colombia Reports, Alternative Democratic Pole, 13 April 2015
The Patriotic Union is a leftist political party that was virtually exterminated by paramilitary groups and state forces in the 1980s and 1990s. Its legal status was revoked in 2002 due to lack of members and supporters. The party resurfaced in 2013, when it announced a political candidate for the first time in a decade.[8] Although country information indicates that the Patriotic Union was not active in 2009 to 2010, I am prepared to accept the applicant’s claim that the group held meetings in Bogota during this period.
[8] Colombia Reports, Patriotic Union, 13 January 2014
Regarding his level of involvement with the Patriotic Union and Alternative Democratic Pole, there is some inconsistency between his evidence to the Department and the Tribunal. As acknowledged in the Pre-hearing submissions, according to his evidence to the Department the applicant’s involvement was not of a substantial or senior level; he held no official position within these parties; his involvement was as an ordinary member who attended public forums organised by the parties.[9]
[9] Pre-hearing submission dated 18 June 2024, p 5
At the Tribunal hearing, the applicant described his involvement as being one of approximately 20 ‘organisers’ who recruited others and was actively involved in fundraising for the parties. I consider the applicant’s evidence to the Tribunal to reflect a more significant level of involvement than an ordinary member. As discussed below, I also have concerns regarding the applicant’s evidence about threats received in 2009 by many of the other 20 organisers. I find that the applicant has sought to embellish his level of involvement and do not accept his claims to have been one of approximately 20 ‘organisers’ as credible. I accept that the applicant was involved with the Patriotic Union and Alternative Democratic Pole in Bogota as an ordinary member between 2009 and 2010.
The applicant raised with the Tribunal that he has been involved in sharing or reposting of political information on social media platforms while in Australia. He described this as being infrequent during his period of residence from August 2010 and October 2014. Between August 2015 and 2022, when he closed all his social media accounts, he claims to have more regularly shared information about political events taking place in Colombia. I accept the applicant’s explanation for not raising this with the Department, namely that he was not specifically asked about social media activity and did not consider the sharing or reposting of information to amount to political activity. I accept his claimed social media activity as credible.
The applicant claims that, as a result of his involvement with the Patriotic Union and Alternative Democratic Pole, he received 10 threat letters from the Black Eagles between 31 July 2010 and May 2022. Except for the seventh and ninth threat, all include his name – ‘[Given name]’, ‘Mr [Given name]’ or ‘Mr [Given name, Surname]’. The content of the first, second, seventh, eighth, ninth and tenth threats appears generic in nature whereas the third, fourth, fifth and sixth threats contain information personal to the applicant, as summarised below:
i.The third threat letter, received in February 2015, states that the Black Eagles know that the applicant is in Bogota again and refers to him promoting leftist protests and ideologies.
ii.The fourth threat letter, received on 27 July 2015 and by email on 28 July 2015, appears to be the most personal. It states that the Black Eagles know he is ‘still in Bogota’ and specifically refers to 2 areas that he frequents, that he is an ‘active member’ of the Patriotic Union and continues to promote leftist ideologies. It includes a photo of the applicant’s ex-wife and son and suggests a threat to his son’s life.
iii.The fifth threat letter, received in September 2015, following the applicant’s departure for Australia, states that the Black Eagles know he ‘got away’ and ‘sneaked out of the country and will be ‘waiting for him’. It refers specifically to his involvement in ‘meetings, demonstrations and guerilla propaganda’ for the Patriotic Union and Alternative Democratic Pole.
iv.The sixth threat, received in October 2019, states that the Black Eagles know that the applicant has been advocating via social media from overseas for the national strike on 21 November and if he ever returns to Colombia, he is a ‘dead man’.
I have considered a range of country information regarding the Black Eagles, including sources cited in the Pre-hearing submission. The Black Eagles has been described as a loose network of right-wing neo-paramilitaries or criminal groups, which arose following the 2006 demobilisation of the paramilitary United Self-Defense Forces of Colombia (AUC).[10] Sources indicate that the Black Eagles does not operate as an organised group with an identified structure, membership, or territorial control. It is believed to exist as a group in name only, as a front for various criminal groups. No logistical centre has ever been found, but threatening pamphlets under the Black Eagles name continue to be issued. Although authorities have rarely tracked pamphlets from the Black Eagles to subsequent acts of violence, these messages generate terror in communities and have reportedly been used to favour right-wing interests.[11]
[10] Colombia Reports, Neo-paramilitaries promise ‘social cleansing’ in Colombia's southwest, 27 July 2012
[11] International Crisis Group, The Unsolved Crime in “Total Peace”: Dealing with Colombia’s Gaitanistas, 19 March 2024; International Crisis Group, Leaders under Fire: Defending Colombia’s Front Line of Peace, 6 October 2020; European Union Agency for Asylum, Colombia: Country Focus (December 2022), 14 December 2022; UNHCR, International Protection Considerations with Regard to People Fleeing Colombia, August 2023; Immigration and Refugee Board of Canada, COL201106.E - Colombia: The Black Eagles (Águilas Negras), including activities, areas of influence and areas of operation; threat letters, including appearance and content; availability of fraudulent threatening letters (2020-June 2022), 13 July 2022
Sources refer to groups operating under the Black Eagles name targeting social and political activists, as well as involvement in disappearances, homicides, and extortion. The Black Eagles, which proclaim themselves as the ‘army of social restoration’ specifically target social activists and human rights defenders, labelling them as ‘guerrillas’ and ‘obstacles to democratic security’. Pamphlets using the term ‘social cleansing’ are circulated under the Black Eagles name threatening the lives of members of organisations and social leaders. Reports refer to threats issued by the Black Eagles against members of the Alternative Democratic Pole in 2011 and against the president and candidates of the Patriotic Union in Bogota in 2015 and 2016.[12]
[12] Immigration and Refugee Board of Canada, COL105522.E - Colombia: Organizational structure of the Black Eagles (Águilas Negras), including whether the group operates under a unified command and the nature of cooperation among different Black Eagles groups across the country; activities in 2015; relationship to the government, including instances of infiltration or collusion (March 2015-May 2016), 10 May 2016; Colombia Reports, Govt to increase security for opposition party after death threats, 25 May 2011; Immigration and Refugee Board of Canada, COL103710.E - Colombia: Whether the Black Eagles (Águilas Negras) have links to former paramilitary groups, such as the United Self-Defence Forces of Colombia (Autodefensas Unidas de Colombia, AUC); criminal activities of the Black Eagles, including extortion and drug trafficking; state response to the Black Eagles (2008-February 2011), 4 April 2011
I acknowledge that the above country information generally supports the applicant’s claim to have been threatened by the Black Eagles, or groups using this name, due to his involvement in left-wing political parties. I accept the assertions in the Pre-hearing submission that targeting by the Black Eagles is not necessarily limited to high profile political leaders and can extend to persons belonging to progressive political groups. However, for the reasons below, I do not accept the applicant’s claims to have received threat letters from the Black Eagles to be credible.

The applicant claims that he received the first threat letter on 31 July 2010 at his home in [Neighbourhood]. At this time, he claims to have been actively involved as an ‘organiser’ with the Patriotic Union and Alternative Democratic Pole since 2009. In his evidence to the Tribunal, he stated that most of the other 20 organisers began receiving threats from the Black Eagles in 2009. These threats caused them to promptly depart Colombia and seek asylum in [Canada].
Considering the above, I have some concerns with the applicant’s evidence that he was not overly concerned by receipt of the first threat letter. If most of the other 20 organisers had felt sufficiently concerned by threats received in 2009 to depart Colombia and seek asylum overseas, it is unclear why the applicant would not feel similarly concerned. I acknowledge that the first threat was received approximately 10 days before the applicant’s scheduled departure from Colombia, such that he took no further action. However, despite receiving a second threat while in Australia, the applicant did not apply for protection. I acknowledge his response to the delegate that, while he was concerned by the second threat, he did not consider applying for protection at this time because he had a Student visa and was planning to apply for a subclass 457 visa. However, these are temporary visas and would not have guaranteed his ongoing safety.
Despite having received 2 threat letters, the applicant chose to return to Colombia in October 2014. I acknowledge his evidence that he felt safe to return at this time because he had received no further threats since October 2011. However, as above this appears at odds with his evidence regarding the actions of other party members who held organiser roles and received threats in 2009.
The applicant claims that following his return to Colombia, he received 2 further threat letters: in February 2015 (handed to him personally close to his parent’s residence in [Suburb]) and in late July 2015. As outlined above, these threats were considerably more personal and indicated that the Black Eagles were aware of his return to Bogota, including his place of residence in [Suburb] and areas that he regularly visited, and intended to kill him. He agreed at the Tribunal hearing that the Black Eagles knew that he was residing at his parents’ apartment in [Suburb] during this period. The Black Eagles had located a photo of the applicant’s ex-wife and son and implied threats toward his son.
Based on the available evidence, I am not satisfied that there is any plausible reason why the Black Eagles would specifically target the applicant in the manner claimed following his return to Colombia in October 2014. The applicant confirmed to the Tribunal that while residing in Australia between August 2010 and October 2014, his political activity was limited to infrequently sharing information on social media. On his return to Colombia between October 2014 and August 2015, he claimed to have had no involvement in political activities. I have found above that between 2009 and 2010 the applicant’s involvement with leftist political parties was that of an ordinary member, rather than an organiser. While I acknowledge that ordinary members may receive threats under the Black Eagles name, I do not find it plausible that they would be monitoring the applicant’s return to Colombia after a 4-year period of absence, seek out his place of residence in [Suburb] to hand-deliver a threat, and locate a photo of his ex-wife and son to include in a threat letter.
The applicant claims that he received a fifth threat letter in the month following his departure from Colombia in August 2015. As outlined above, this indicates that the Black Eagles are aware of his departure from Colombia and will be monitoring his return. For the same reasons above, I do not find it plausible that the Black Eagles would be monitoring the applicant’s departure from Colombia in August 2015 or his impending return.
The applicant claims that between October 2019 and May 2022, following a 4-year gap, he has received a further 5 threat letters from the Black Eagles. Except for the ninth threat received via [Messaging app], all were delivered to the [Neighbourhood] house. In his Third statutory declaration, the applicant claimed that the only reason he could think of as to why he started receiving threats again in 2019 was general political events taking place in Colombia.
As outlined above, the sixth threat is personally directed to the applicant, indicating that the Black Eagles are aware that he resides overseas and has been involved in social media activity in support of a national strike in Colombia on 21 November. The applicant stated to the Tribunal that he had shared information on social media in relation to the 21 November strike. I have some concerns as to why, if that were the case, he would not have raised that in his Third statutory declaration as a possible reason for the renewed threats from October 2019. However, I am prepared to accept that he did share such information on social media as claimed.
However, for the same reasons discussed above, I do not find it plausible that the Black Eagles would be monitoring the applicant’s social media postings, prompting the issuance of a personal threat in October 2019. According to the applicant, he was sharing information of a similar nature on social media prior to October 2019 yet received no threats from the Black Eagles between September 2015 and October 2019, including via [Messaging app].
I accept that general political events in Colombia can prompt threats from the Black Eagles, including the widespread circulation of generic threats, and that regional elections took place in Colombia in November 2019. However, given that the sixth threat contains details specific to the applicant, such as his residing overseas and social media activity, I do not accept this to be a generic threat.
As discussed with the applicant at hearing, it also appears illogical that the Black Eagles would continue to deliver threat letters to the [Neighbourhood] house from September 2015 when they were aware that he had left Colombia and had his email address and [Messaging app] details. Similarly, it appears illogical that the Black Eagles would deliver the fourth threat to the [Neighbourhood] house when they knew that he was residing in [Suburb]. The applicant confirmed to the Tribunal that no threats were received at his parents’ home in [Suburb]. I acknowledge the applicant’s response that the Black Eagles do not operate in a logical manner. However, I do not find this to sufficiently address my concerns in circumstances where the applicant claims that he was being personally targeted by the group during his residence in Bogota between October 2014 and August 2015.
I acknowledge the documentary evidence submitted of the threat letters and that versions claimed to be the original threat letters were sighted by the Tribunal. However, I do not find these documents to alleviate my concerns outlined above and have given them no weight.
I have had regard to the documentation submitted regarding the complaint or report to the FISCALIA and Ombudsman’s Office and the subsequent correspondence with these organisations. I have also had regard to the documents submitted in Section F of the pre-hearing submissions. These are untranslated documents and there is no further reference to them in the Pre-hearing submission or the Third statutory declaration. They were not referred to by the applicant or his representative at the Tribunal hearing. Based on the description in the index to the bundle of documents and the date of the documents, I understand these to relate to follow up interactions with the authorities regarding the applicant’s reports to the FISCALIA and Ombudsman’s Office.
There is nothing before me to indicate that these documents are not genuine. I accept that the applicant reported threats from the Black Eagles to the FISCALIA and Ombudsman’s office as claimed. However, I find that this does not establish the credibility of the claimed threats and have given these documents no weight in that regard.
I have considered the submissions of the representative that the applicant had no reason to fabricate threats to support a protection visa application given that he had alternate residency pathways available. I acknowledge that the applicant was pursuing a subclass 457 visa prior to his departure from Australia in October 2014. This application was withdrawn by the applicant on 13 October 2014. However, the delegate’s refusal decision refers to discussion at the protection visa interview of an email from the applicant to the Department on 19 December 2014 in which he stated that he is in Colombia waiting for his wife and thinks he has been ‘tricked’. The applicant responded that his wife had experienced ‘complications’ and could not travel to Australia. I consider this may indicate that the applicant withdrew his subclass 457 visa application on the understanding that his wife and son would be returning to Colombia, which did not eventuate.
Considering all of the above, I do not accept the applicant’s claims to have received threats from groups acting under the name of the Black Eagles between 31 July 2010 and May 2022 to be credible. I find that he has fabricated these claims to support his protection visa application.
Refugee and complementary protection assessment
I find the applicant’s likely area of return or ‘home area’ to be Bogota given this was his previous place of residence and the area where his parents and brothers continue to reside.
Considering my findings above regarding threats from the Black Eagles, I am not satisfied that there is a real chance that the applicant will be harmed by groups acting under this name if he returns to Bogota. I have accepted that he was an ordinary member of the Black Eagles between 2009 and 2010 and while in Australia has shared some left-wing political material on social media. However, I have not accepted that this led to him receiving any threats from the Black Eagles. If he were to return to Bogota and continue with the same or similar level of political activity, I find there to be no real chance that he will be threatened or harmed by groups acting under the Black Eagles name in the reasonably foreseeable future.
I find that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s 5H(1) of the Act.
I have therefore considered whether the applicant engages complementary protection as outlined in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Colombia, he will suffer significant harm.
The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[13] For the same reasons discussed above, I find that there is not a real risk that the applicant will suffer significant harm from the Black Eagles as a consequence of his removal to Colombia.
[13] MIAC v SZQRB [2013] FCAFC 33
The applicant has not claimed to fear harm for any other reason if he returns to Colombia and I find that no other protection claims arise on the accepted facts.
I acknowledge that separation from the applicant’s son, who is an Australia citizen, is likely to cause significant distress and emotional harm to both the applicant and his son. While this is not a relevant consideration to my assessment of whether the applicant engages protection obligations, it may be relevant to a request for Ministerial intervention.
Conclusions
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) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mia Bailey
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.
…

[2024] AATA 4034

10 September 2024

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