1906167 (Refugee)

[2019] AATA 4566

1906167 (Refugee) [2019] AATA 4566 (21 June 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1906167

COUNTRY OF REFERENCE:                  Colombia

MEMBER:  Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:          21 June 2019 at 12:46 pm (WA time)

DATE OF WRITTEN RECORD:                8 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) of the Act.

Statement made on 08 July 2019 at 11:53am

 

CATCHWORDS
REFUGEE – protection visa – Columbia – particular social group – targets of political and criminal assassination and their family members – illicit drug trade – father and brother killed – credible witnesses – no delay in applying for protection – return to place of apprehended harm – state protection – agents of harm sufficiently connected with the organs of State – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 5LA, 36
Migration Regulations 1994 (Cth), Schedule 2

CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Chan Yee Kin v MIEA (1989) 169 CLR 379
Iyer v MIMA [2000] FCA 52

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

In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

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 21 June 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

STATEMENT OF DECISION AND REASONS

1. A corrected transcript of the oral decision with reasons is attached to this statement. DECISION

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

Dr Colin Huntly
Member

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-Corrected Transcript-

ORAL DECISION OF MEMBER HUNTLY [12.11 PM]

1. This is an oral decision relating to an application by [the applicant] file number 1906167.

2. 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 of 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 in accordance with Ministerial Direction No.56.

Procedural background

1. The applicant appeared before the Tribunal on two occasions. Firstly on 24 April 2019 and then on 21 June 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 hearing from two witnesses, both of whom are brothers of the applicant.

Migration history

1. The applicant arrived in Sydney as the holder of a [visitor] visa for the purposes of attending his brother's [wedding in] October 2018. He departed Australia [in] January 2019. He again arrived in Australia [in] January 2019 as the holder of [a visitor] visa. Following the cancellation of this visa, the applicant applied for a temporary protection visa on 30 January 2019.

Identity

1. The applicant claims to be a citizen of Colombia and provided a copy of his passport to the Department with his application. On the basis of evidence before it, the Tribunal finds 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. The Tribunal has made its own inquiries, referred to available country information, and the submissions of the applicant's representative, and 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.

Inquiries

1. At the first hearing with 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 remained fearful of life in your country. That the people you had helped to send to gaol in

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Colombia were coming up for parole and that the situation in your country from a security perspective was still very poor. I then asked you if you were happy for me to proceed on the basis of the information before me and you said "Yes".

1. I then read to you the summary of your claims for protection included at Part 4 of the delegate's decision record, which are as follows:

   ·     You and your brother [Mr A] are under threat from an illegal armed group in Colombia who are part of a drug cartel known as a paramilitary group in Colombia.

   ·     This group were responsible for the death of your father [Mr B] and your brother [Mr C]. Your father was a politician [and] social leader in your home neighbourhood.

   ·     Your father wanted to remove the illicit drug trade and make it a better place to live. Your father took up this fight with police and the National Army in the local municipality and other neighbourhoods. He collected signatures and began militarising the sector affected by drug use. As a result of this activity he received death threats. When you were [age] you were returning from school with your sister while your father was waiting at the door of the family home. When you were approximately 100 metres away you witnessed your father being shot in the back of the heard, which resulted in his death. Following this the assassin moved towards you shooting at you but you were able to flee on foot.

   ·     The day after the incident when you returned to the family home with your mother there was a suitcase containing threats explaining what would happen to them if they failed to leave the city. After your father's death you and your mother provided testimony to the police, which led to the identification of the killer. Following this you were given protection to leave the city and move to another city Cali. After moving to Cali you had to move residence to avoid detection and remain protected. On occasion in the years following you and your brother [Mr A] had to travel to [Country 1] to escape inherent danger on separate occasions.

   ·     Many people were part of the armed ground and new the family had testified against them. Your brother [Mr C] was killed by the same armed group two years later in Cali.

   ·     Your older brother [Mr D] travelled to [Country 1] and was located by the cartel before he fled to Australia to be with the mother of his child. Since moving to Australia [Mr D] has provided consideration financial assistance to your family month by month.

2. You agreed that this was an accurate summary of your claims for protection. I note that the delegate made a number of findings in connection with your application for protection. In particular he found that your father was a prominent political figure in [City 1], particularly in [Area 1], and was a vocal opponent to the drug trade within the local district and was murdered by a siccario associate of [an illegal armed group].

3. You witnessed your father's murder when returning home from school and provided information to police leading to the conviction of the party responsible. You became a displaced person as a result of this. I note that the delegate accepted that your brother

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[Mr C] was murdered but doubted the connection between this and the activities of the [illegal armed group].

1. The delegate found that you had undertaken military service in Colombia serving with the Colombian Police. You have been the recipient of murder threats. I note that the delegate expressed doubts about certain aspects of your evidence to relating to the residential history of your brother [Mr D] and doubted whether or not the reach of the [illegal armed group] extended to Cali.

Analysis

1. I have considered the available country information, including that provided to the Tribunal by your agent and also the country information surveyed by the delegate. I have also had particular cause to reflect on the United Nations Security Council publications from 2017, the first of these is; "Report of the Secretary General to the United Nations Mission in Colombia" dated 24 March 2017, and the “Report of the Secretary General to the United Nations Verification Mission in Colombia” dated 30 August 2017.

2. 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. In particular 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. 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 particular social group is durable.

3. 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 appropriate circumstances. It is apparent 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.

4. I note from the case of Iyer¹ that return to a place of apprehended harm can indicate a lack of genuinely well-founded fear of harm. For this reason, I questioned you and your brother [Mr D] about the activities of your mother who returned to Colombia after her visit for the wedding of your brother. All of the evidence before me suggests to me that your mother is a 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 infant child when she elected to return to that infant child in Colombia when she did. Accordingly, I draw no adverse inference from your mother’s return to Colombia in those circumstances.

5. It is apparent to me that the political instability and the criminal activities of organised criminal enterprises in Colombia continue to exacerbate the threat of harm that you have articulated. I do find that you are a member of the particular social group, targets of political and criminal assassination and their family members in Colombia, being

6. 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).

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innate and immutable characteristics, which you share with all members of that particular social group.

1. Section 5J(1)(a) of the Act requires that a person must fear being persecuted for one of the stated reasons (the refugee grounds). For a person's fear of persecution to be well-founded there must be a “real chance” that if the person returns to the receiving country the person would be persecuted for one of the refugee grounds.

2. The 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 Chan² as a substantial chance as distinct from a remote or farfetched 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.

Findings

1. 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 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.

2. Accordingly, for the purposes of s.5J(5) of the Act and on the basis of 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.

3. I note that harm from non-State agents may amount to persecution for the purposes of the Act, if the motivation of the non-State actors relates to one of the reasons contained at s.5J(1)(a) of the Act and the State is unable to provide adequate protection against the harm.

4. When a State is willing but not able to provide protection the fact that 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.

5. 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. However, I note that this does not apply for modifications that conflict with a characteristic that is fundamental to a person's identity or conscious or that would conceal an innate or immutable characteristic. 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

6. Chan Yee Kin v MIEA (1989) 169 CLR 379.

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country, if relocating carries with it the need to avoid persecution by living discretely or otherwise being invisible. In this respect, I refer to McHugh and Kirby JJ's comments in the case of Appellant S395/2002 v MIMA³

Conclusions

1. I have considered each of the integers for 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 and the evidence of your witnesses to be credible and materially consistent with 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 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.

2. 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 discrete 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. 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

1. 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 [12.52 pm]

3(2003) 216 CLR 473 at [40].

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