1905696 (Refugee)

[2019] AATA 4676

1905696 (Refugee) [2019] AATA 4676 (8 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905696

COUNTRY OF REFERENCE:                  Colombia

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:          8 July 2019 at 12:53 pm (WA time)

DATE OF WRITTEN RECORD:                19 July 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a).

Statement made on 19 July 2019 at 3:33pm

CATCHWORDS

REFUGEE – protection visa – Colombia – imputed political opinion – opposition to drug trade – particular social group – targets of political and criminal assassination and their family members – drug gangs – murder of family members – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36
Migration Regulations 1994, Schedule 2

CASES

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] 216 CLR 473
Chan Yee Kin v MIEA (1989) 169 CLR 379
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 March 2019 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 8 July 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. Attached to this statement is a corrected transcript of the reasons for decision delivered on 8 July 2019.

   DECISION

4. The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a).

   Dr Colin Huntly
   Member

   
   

   -Corrected Transcript-

   ORAL DECISION OF MEMBER HUNTLY

5. The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Regulations.  An applicant must either be a person in respect to whom Australia has protection obligations under the refugee criteria or on complimentary protection grounds.  Where relevant, the Tribunal has taken into account, the policy guidelines prepared by the Department on refugee law and complimentary protection, together with any country information assessment prepared by DFAT, as is required by Ministerial Direction No.56. 

   PROCEDURAL BACKGROUND

6. The applicant appeared before this Tribunal on two occasions.  Firstly, on 24 April 2019 and then on 8 July 2019, to give evidence and present arguments. 

   The applicant was represented in this application by a registered migration agent.  Both hearings were held with the assistance of an interpreter fluent and accredited in English and Spanish. 
   The Tribunal has also had the benefit of several submissions made on behalf of the applicant by the applicant’s agent and the Tribunal notes that the applicant has suggested to the Tribunal that it might wish to hear from a number of supporting witnesses.  However, after discussing the question of what the witnesses could add to the Tribunal’s understanding with the applicant and his agent, it was agreed that the evidence of these witnesses would be neutral with respect to the testimony of the applicant.  Accordingly, the Tribunal made the determination that it was unnecessary to hear from these witnesses.

   MIGRATION HISTORY

7. The applicant arrived in Sydney as the holder of a [temporary] visa, for the purposes of attending [a family event in Australia], [in] October 2018.  He departed Australia briefly [in] January 2019, before again arriving in Australia [later in] January 2019, once again as the holder of [a temporary] visa.  Following the cancellation of this visa, the applicant applied for a temporary protection visa on 30 January 2019.

   IDENTITY

8. The applicant claims to be a citizen of Colombia and provided a copy of his passport to the Department with his application.  Evidence before the Tribunal satisfies it that the applicant is a citizen of Colombia, which is also his receiving country, for the purposes of the refugee and complimentary protection assessments.  The Tribunal notes the finding of the delegate, that there is no evidence to suggest the applicant has a right to enter and reside in a third country, for the purposes of s.36(3) of the Act.

9. The Tribunal has made its own enquiries and has referred to available country information and the submissions of the applicant’s representative and on the basis of these enquiries, finds that the applicant does not have a right to enter and reside in a third country, for the purposes of s.36(3) of the Act.

   ENQUIRIES

10. At the first hearing of the Tribunal on 24 April 2019, I explained to you the documents I have in my possession.  I asked you if there was any information in those documents that needed to be changed.  You responded in the negative.  I then asked if you wanted to add anything to your claims for protection.  You stated that you were still in fear of life in Colombia and that the people who your family had helped to send to gaol in Colombia were due for parole and that the situation in that country, from a security perspective, remained poor.  I asked you if you were happy for me to proceed on the basis of the information I had before me and you said yes.  I then read to you the summary of your claims for protection, included in part 4 of the delegate’s decision record, which are as follows:

    • You are afraid to return to Columbia due to your father, [named] previously the political [leader] of the [named political group] in [Barrio 1]. 
    • Your father was responsible for fighting against cartels who were harming the youths of the neighbourhood.  He and other leaders tried to obtain signatures for a petition in an effort to maintain the peace in [Barrio 1].
    • The cartel then murdered your father, and this was witnessed by your [specified family members].  As witnesses to the murder, they were central in the apprehension and conviction of the [accused] [named].
    • As a result, you and your family were taken to a different neighbourhood, where they could seek protection.  Despite this, two years later, they found your [family member], [named]’s location and he was murdered.  You and your [remaining family] feared for your lives and your [family member], [named], took [another family member] to [Country 1], to obtain assistance from your [family member], [named].
    • The cartel discovered your [family member’s] location in [Country 1] however, [the family members there] escaped and travelled to Australia.  You were also the subject of threats from cartel operatives and you left Colombia to stay in [Country 1] with your [other family member]. 
    • After your father’s murder, you returned to Colombia, where you continued to hide at [family members’] houses.  You believe that the cartel is unable to rest until you and your family are all dead and you have already endured more than three attacks, which you believe to be at the hands of cartel related thugs in that country.  Your mother received a message stating that you would not last beyond [time], which you took to be a threat against your life.  If you return to Colombia, you believe there are people waiting to kill you, even if you move anywhere else in Colombia.  Your worry is particular acute, because of the newness in time of the release of the killer of your father.

11. You agreed that this was an accurate summary of your claims for protection.

12. I note that the delegate made a number of findings in connection with your application for protection.  In particular, the delegate found your father was a prominent political figure in [your city], particularly in [Barrio 1] and was a local opponent to the drug trade in the local district and was murdered by [an] associate of the [Gang 1] criminal group. 

13. I accept that your [family member] witnessed your father’s murder when returning home from [activity].  I also accept that information provided to the police by your [family members] led to the conviction of the party responsible and this person was a criminal thug associated with the [Gang 1] cartel in Colombia.  As a result of all of this, your family and yourself, became displaced persons in Colombia. 

14. I note that the delegate accepted that your [named family member] was also murdered, but doubted a connection between his murder and the activities of the [Gang 1].  The delegate also doubted that you were the subject of targeted threats to your life.  This was because the delegate found that you did not disclose these threats at the first reasonable opportunity.  Presumably on the basis of these doubts, the delegate did not accept that you had lived in hiding effectively, while living in [City 1], to the extent that you were the recipient of violence in Colombia, it could not be connected back to the [Gang 1]. 

15. I note the delegate also expressed doubts about certain aspects of your [named family member’s] residential history and doubted whether or not the reach of the [Gang 1] extended to [City 1].

    ANALYSIS

16. I have considered the available country information, including that provided to the Tribunal by your agent.  I have also considered the country information surveyed by the delegate.  I have also reflected on the United Nations Security Council publications from 2017, first of which is the “Report of the Secretary General two-year United Nations mission in Colombia”, dated 24 March 2017.  A second report of relevance is, “Report of the Secretary General to the United Nations verification mission in Colombia”, dated 30 August 2017. 

17. Careful reading of available country information suggests very strongly, that effective state protection may not be available in Colombia to members of the particular social group, targets of political and criminal assassination and their family members in Colombia.  I note in particular, that s.5LA of the Act requires that effective protection measures should include the relevant state, party or organisation, being willing and able to offer appropriate protection. 

18. I find that there are significant doubts as to whether or not the Colombian state is either willing and/or able to offer appropriate state protection to members of the particular social group, targets of political and criminal assassination and their family members in Colombia.  By reference to s.5LA(2)(b) of the Act, I also doubt whether or not any protection available to members of such a particular social group is durable. 

19. In light of the evidence that has been presented at the second hearing, I find that there was no effective delay with respect to your application for protection, in the relevant circumstances.  It is apparent to me that if you and your family had received better migration advice, you would in all likelihood have applied for protection on your first entry into Australia.  I note from the case of Iyer,[1] that return to a place of apprehended harm can indicate a lack of a genuinely well-founded fear of harm.  For this reason, I questioned you about the activities of your mother, who returned to Colombia after her visit for the [family event]. 

    [1]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]. Affirmed on appeal: Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000).

20. All of the evidence before me suggests to me that your mother is a remarkable person, of strong character.  It is apparent from the available evidence that she weighed up her own protection rights in the context of the needs of her [family member], who remained in care in Colombia during your [family event], when she decided to return to that [member] in Colombia when she did.  Accordingly, I draw no adverse inference from your mother’s return to Colombia in such circumstances.

21. It is apparent to me that the political instability and the criminal activities of organised criminal enterprises and vicious criminal thugs in Colombia, continue to exacerbate the threat of harm that you have articulated.  I find that you are a member of the particular social group, targets of political and criminal assassination and their family members in Colombia, being innate and immutable characteristics, which you share with all members of that particular social group. 

22. Section 5J(1)(a) of the Act requires that a person must fear being persecuted for one of the stated reasons (the refugee grounds), which include membership of a particular social group.  For a person’s fear of persecution to be well-founded, there must be a real chance that if a person returns to the receiving country, the person would be persecuted for one of the refugee grounds.  T

23. he concept of a real chance, as relevant to the assessment of a well-founded fear, under Article 1A(2) of the Convention, which is consistent with s.5J(1) of the Act, was explained by the High Court in the case of Chan,[2] as “a substantial chance as distinct from a remote or far-fetched possibility, however, it may be well below a 50 per cent chance.”  Importantly, the real chance requirement in s.5J(1)(b), is the same as the real chance threshold for the assessment of well-founded fear that was identified in Chan. 

    [2]Chan Yee Kin v MIEA (1989) 169 CLR 379.

    FINDINGS

24. I find, based on an assessment of the available country information, that there is a real chance of the applicant facing persecution throughout Colombia.  I further find that the agents of harm are sufficiently connected with the organs of state, to represent a real chance of persecution that is systematic and discriminatory to the applicant, such that effective protection measures (as envisaged at s.5LA of the Act), are not available to the applicant in that country.  Accordingly, for the purposes of s.5J(5) of the Act, and on the basis of available country information, I find that the applicant would face a real chance of significant physical harassment and significant physical ill treatment in Colombia, now and for the reasonably foreseeable future, for the essential and significant reason that he is a member of a particular social group, targets of political and criminal assassination and their family members in Colombia, being innate or immutable characteristics of members of the group, that are also shared by the applicant. 

25. I note that my findings are at variance from those of the delegate.  I am prepared to accept that the applicant’s [family member], [named], may have travelled to [Country 1], as a matter of the benefit of the doubt.  I do find that the applicant resided in [Country 1], as a matter of familial convenience prior to his father’s assassination.  I do find that the applicant disclosed the targeted threats he perceives to have occurred in 2018 at the first reasonable opportunity.  This was done in an untranslated and undated statement made by the applicant.  It was submitted to the Department by the applicant’s agent in a submission dated 30 January 2019.  This statement appears on page 6 of Appendix E of the applicant’s agent’s submission to this Tribunal, dated April 2019.  For this reason, I believe that the delegate’s findings were based on incomplete information.  For that reason, the Tribunal cannot make the same findings that the delegate made.

26. I note that harm from state and non-state agents may amount to persecution for the purposes of the Act, if the motivation of the non-state access relates to one of the reasons contained in s.5J(1)(a) of the Act and the state is unable to provide adequate protection against the harm.  When the state is willing but not able to provide protection, the fact that the authorities, including police and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek protection.  In such cases, a person would not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in that position, with the level of protection they are entitled to expect, according to international standards.

27. Section 5J(3) of the Act, provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, so as to avoid a real chance of persecution in the receiving country.  I note however, that this does not apply for modifications that conflict with a characteristic that is fundamental to a person’s identity or conscience or that would conceal an innate or immutable characteristic. 

28. In the context of what is reasonable, I note that the well-founded fear of persecution cannot be regarded as being restricted to a single part of a receiving country, if relocating carries with it the need to avoid persecution, by living discretely or otherwise being invisible.  In this respect, I refer to the comments of McHugh and Kirby JJ, in the case of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] 216 CLR 473 at [40].

    CONCLUSIONS

29. I have considered each of the integers of your claims for protection individually and then cumulatively.  On the basis of what I have already discussed, taken together with the relevant country information outlined above, I find that your evidence is credible and materially consistent with the country information.  I therefore find that you do have a well-founded fear of persecution in Colombia, now and in the reasonably foreseeable future, for the essential and significant reason that you are a member of a particular social group, targets of political and criminal assassination and their family members in Colombia, being innate or immutable characteristics shared by members of the group and which are also shared by you. 

30. I further find that this fear of persecution is for the essential and significant reason of grounds articulated at s.5J(1)(a) of the Act.  I further find that pursuant to s.5J(3)(b) of the Act, it would not be reasonable to require you to be invisible or discreet in order to reduce your real chance of significant physical harassment and significant physical ill treatment, due to your membership of this particular social group.  Based on the findings I have already made, I find that you would not be able to secure effective state protection, for the purposes of s.5LA of the Act.

31. For the reasons I have given above, I find that you are a person in respect of whom Australia has protection obligations, as you satisfy the criteria set out in s.36(2)(a) of the Act.

    DECISION

32. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act.

    END OF ORAL DECISION     [12.53 PM]