2008303 (Refugee)

2008303 (Refugee) [2023] AATA 4416 (11 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2008303
CASE NUMBER:  2211979
COUNTRY OF REFERENCE:                   Colombia
REPRESENTATIVE:  Ms Michaela Byers
MEMBER:Luke Hardy
DATE:11 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 11 October 2023 at 3:52pm
CATCHWORDS
REFUGEE – Protection Visa – Colombia – Federal Circuit Court remittal – fear of children being kidnapped for ransom – Colombians in professional careers or returning from long periods abroad perceived as wealthy – pressured to join or assist criminal gang – Revolutionary Armed Forces of Colombia (FARC) – delay in applying for protection – inconsistent evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 78, 91R, 91S, 425, 494B, 494C, 499
Migration Regulations 1994, rr 2.08, 4.31, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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

These are applications for review of decisions made by a delegate of the Minister for Immigration and Border Protection respectively to refuse to grant the applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are a family and are all citizens of Colombia. The first two applicants, the applicant parents, entered Australia on [date] January 2013 on [the first applicant, Ms A]’s student visa valid to 12 August 2013. They were granted bridging visas on 12 August 2013 pending the outcome of a further visa application which was unsuccessful. The applicant parents then applied for PVs on 10 November 2014. [Ms A] applied as an applicant submitting her own claims for protection. [The second applicant, Mr B] was included in that application as a member of [Ms A]’s family unit, not having his own claims for protection.
The third-named applicant, [Miss C], was born in Australia on [date], after her parents’ application had been lodged but before the Minister’s delegate’s decision to refuse their application. Under r.2.08 and consistent with PAM3, [Miss C] was automatically taken to have applied when she was born and to have a combined application with her parents. [Miss C] was deemed to have applied for a PV on 14 November 2014.
The Minister’s delegate refused the parents’ applications on 17 December 2015. The notification was sent by post to an erroneous address. Hence the applicant parents were not notified in law of the delegate’s decision. The daughter [Miss C] was not included in the decision of 17 December 2015. The delegate made a decision to refuse [Miss C] a PV on 11 January 2017. The delegate referred to information provided in both completed application forms (the parents’ original application form and one completed on 16 August 2016). Ultimately, the delegate found that Australia did not have protection obligations towards [Miss C] because she had safe third country protection pursuant to s.36(3) of the Act. The delegate’s decision, relying as it did on perceived third country protection, did not consider the substantive claims of the applicant parents.
The fourth applicant, [Miss D], was born in Australia on [date]. A PV application was lodged on her behalf on 22 June 2020. In this instance, the delegate did assess [Ms A]’s substantive claims as well as claims pertaining specifically to [Miss D] as a child. The delegate refused [Miss D] the visa on 16 August 2022.
The first three applicants lodged an application for review of their PV applications on 18 January 2017, just over two years after 17 December 2015. [Miss D]’s review application was lodged on 17 August 2022.
On 16 February 2018, the Tribunal, differently constituted, found on information before it that it did not have jurisdiction to review [Ms A]’s review application. The Tribunal made the decision on the basis of [Ms A] lodging the review application some two years outside of the statutory timeframe for review applications. Information about the intended notification going to an erroneous address appears to have been overlooked.
The first three applicants sought judicial review in the Federal Circuit Court which ordered on [date] 2020:
The first respondent [the Minister] concedes that the decision of the second respondent (the Tribunal) is affected by jurisdictional error in respect of the first and second applicants only [[Ms A] and [Mr B]]. The Tribunal failed to find that the first and second applicants had not been validly notified of the first delegate's notification of refusal dated 17 December 2015, 'at the last address for service provided to the Minister' for the purposes of paragraph 494B(4)(c)(i) of the Migration Act 1958 (Cth). The email of 21 July 2016 from the first respondent's Department to the second applicant by email, stated that the timeframe for review to the Tribunal had ended. Accordingly, the Tribunal fell into jurisdictional error when it found
that the first and second applicants were validly notified of the first delegate's decision
dated 17 December 2015, and when it found that it did not have jurisdiction to review that
decision.
The Federal Circuit Court made a separate judgement with respect to [Miss C] on [date] 2020:
51. … the first delegate appears to have overlooked the birth of the third applicant and made a decision which omitted her claims. That oversight necessitated the second delegate’s decision. I accept the Minister’s submission that no error by either delegate results from the course adopted and, even if it did, there would be no impact on the [previously constituted] Tribunal’s review because the Tribunal’s jurisdiction extends to the review of purported decisions by a delegate as well as valid ones.
52. The mischief in this case arises from the error made by the Tribunal in relation to its jurisdiction. The Minister concedes that the Tribunal erred in finding that it lacked jurisdiction to consider the review applications by the first and second applicants. That error had a further unfortunate consequence, namely that the review applications by the first and second applicants were uncoupled from the review application made by the third applicant. Having taken the trouble to appropriately embark upon a review of the claims of all three applicants in one decision, the Tribunal regrettably fell into the error as to its jurisdiction which has had the effect of once again bifurcating the applications.
53. There is in the result, a risk that either the first and second applicants will ultimately receive a visa outcome different from that of their child or that the Tribunal’s decision in relation to the third applicant may in some way drive the outcome for the first and second applicants on review ...
54. There are circumstances in which separate decisions on review are unavoidable. One such circumstance is where an applicant child is born following the decision of the delegate. That of course was not the case here. The bifurcation of consideration of the visa applications by the delegates led the Tribunal into error as to its jurisdiction. If there had been only one decision by a delegate, the present situation would not have arisen.
55. Except in relation to a claim in respect of her education prospects in Colombia, the claims by the third applicant depended on the claims by her mother and she claimed as a member of her family group. It was entirely appropriate and desirable that the Tribunal consider the claims of all three applicants together in one decision. It would have done so, but for its error as to its jurisdiction.
56. In my view, that error vitiated the Tribunal decision in its entirety. The review of the third applicant’s claims was necessarily truncated without any review and outcome on the claims of the first applicant. There does not appear to be any authority on the point but, in my opinion, the Tribunal’s review was disabled by its jurisdictional error and the decision as a whole should be remitted.
Conclusion
57. The Minister has already conceded that the Tribunal decision should be remitted in respect of the first and second applicants. The most appropriate outcome would be to amend the consent orders already made to deal with the circumstances of the third applicant consistently with these reasons.
The two remitted matters are now constituted to me pursuant to an order of the Court.
The applicant parents appeared before the Tribunal on 3 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish-English medium.
The applicants are represented in relation to the review. Their adviser attended the Tribunal hearing.
Prior to, during and after the Tribunal, the adviser made a number of submissions relating to the issue of jurisdiction in the matter of the first three applicants. She has also argued that, since the review application by the fourth applicant [Miss D] is now joined to the matter of the other three applicants, the same jurisdictional issue arises in her case, as discussed in two virtually identical post-hearing submissions:
Section 494B(4) of the Act provides that the Minister may send a document (including a
decision record) to a person by means of pre-paid post to the last address provided by the
person for receiving documents, provided that the document is sent within three working
days of the date of the document.
Subsection 494C(4) of the Act provides as follows:
if the Minister gives a document to a person by the method in subsection 494B(4)
(which invoIves dispatching the document by prepaid post or by other prepaid
means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in
AustraIia - 7 working days (in the place of that address) after the date of the
document; or
(b) in any other case - 21 days after the date of the document.
The purpose of deemed notification provisions is to ensure that an applicant cannot avoid
service of an adverse decision, and therefore avoid compliance action. Section 412(1)(b)
of the Act with Regulation 4.31 of the Migration Regulations 1994 provide that applications
for review must be made no later than 28 days after the notification of a decision.
Section 66(4) of the Act provides that failure to notify an applicant of a decision does not
invalidate the decision itself, [but] will have the effect that an applicant’s period in which to apply for review will not start to run until he or she has been correctIy notified (Srey v
MIMIA (2003) FCA 1292).
The applicants respectfully submit that they have not been notified by the prescribed
method as indicated in section 494B(4) of the Act, being that the decision record must be
sent within 3 working days of the date of the document (17 December 2015). This resuIts
in the time period for an application of review to the Tribunal not being triggered. The
applicants respectfully submit that re-sending the decision record dated 17 December
2015 a year later, does not constitute being notified in the prescribed manner as indicated
in section 494B(4) of the Act. ConsequentIy, the Tribunal does not have the jurisdiction to
hear the matter and should remit both review applications to the Department to re-issue
the decision records with a new date and to notify the applicants of the decision by the
prescribed method.
The applicants further submit that [Miss D]’s application is joined with the family’s appIication
by operation of law under section 78 of the Act with ReguIation 2.08 of the Migration
Regulations 1994.
The adviser ventured during the hearing that if there is no notification then there is no decision. I do not agree, at least on the basis that the notion of “notification of a decision”, in a plain reading of English, necessarily requires a decision to exist, either concretely or abstractly, in and of itself before it can be subjected to notification, the latter a process. More to the point, s.66(4), which the adviser herself quotes, provides that “failure to notify an applicant of a decision does not invalidate the decision itself”; hence it is plainly wrong to suggest that there is no reviewable decision before me. The only thing missing in this case is the deadline beyond which compliance action could have been taken, which issue is moot for the time being because the applicants lodged a valid application for review. Meanwhile, the lack of that finite period having commenced to operate (or ended) does not under any sections of the Act bar an applicant from lodging a review application.
I am very highly confident that I have jurisdiction in respect of all applicants in both matters before me.
CRITERIA FOR A PROTECTION VISA
[Ms A], [Mr B] and [Miss C]
The criteria for a protection visa in the case of the first three applicants, all of whom applied for PVs before 15 December 2014, 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, the applicant 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.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country; or who, not having a nationality and being outside the country of his [or her] former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
[Miss D]
The criteria for a protection visa in the case of [Miss D] apply to PV applications lodged on or since 17 December 2014. They 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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s 5H(1)(a). In the case of persons without a nationality, they are refugees if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The Complementary protection criteria applicable to all four applicants before the Tribunal

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the 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 or not, on accepted facts, any of the four applicants before me is entitled to protection in Australia.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of overall claims
[Ms A]’s claimed in her original PV application that she was a [Occupation 1] and [Occupation 2] working in a clinic and [in City 1], which she described as one of the world’s more dangerous cities. She claimed she also worked for a year as a teacher in a college. She claimed that because she and her husband had professional, “influential” careers in Colombia they were perceived as wealthy by criminals she identified as the former insurgent group FARC[1]. She claimed this engendered fear of being harmed. She claimed that FARC tried to get her to become one of the movement’s regular first aid or medical aid providers to assist with treatment of gunshot wounds and knife injuries that could not be treated by doctors without reports being made to police. She claimed to have refused and commenced plans to leave Colombia, whereupon, whilst travelling in a car to her grandfather’s funeral in the company of her mother, the vehicle in which she was travelling was ambushed by four men on two motorcycles, one of whom put a gun to her head and said, “This is just to let you know we are no [sic] playing[.] We will not let you leave Colombia[.] You know too much about us and our activities[.]”, and then apparently just went away, essentially leaving her to make arrangements to depart Colombia with her husband as planned. [Ms A] claimed that in the event of return to Colombia she will be harmed by these people, as she got to know their problems and used to be their “doctor and teacher” before abandoning them. Her use of the term doctor strikes me as being something in the realm of exaggeration as a [Occupation 1] is generally not trained to perform surgery but to provide [specified services]. She claimed her fear was aggravated by the fact that she was carrying her first child, [Miss C], and the fear of the latter being orphaned. She said her brother, a doctor, was wary of danger. She said her parents had changed addresses three times in 2014.
[1] The Revolutionary Armed Forces of Colombia, or Fuerzas Armadas Revolucionarias de Colombia.
[Ms A] claimed the police would not protect her because they are corrupt and only look after drug lords and government officials. She claimed she could not relocate within Colombia.
In [Miss D]’s case, her claims are well summarised in the delegate’s decision record, submitted to the Tribunal for the purposes of review:
·Members of a violent gang have threatened to kill the applicant’s family.
·The applicant will suffer harm if her mother or father are killed.
·She will be exposed to civil unrest and violence.
·Colombian society suffers from insurgencies, paramilitaries, drug running, and there are refugees from Venezuela. The government authorities are corrupt.
·These circumstances will interfere with her education and physical and mental well-being.
·The applicant’s family will be targeted as they will be perceived as wealthy having returned from overseas.
A useful summary of [Ms A]’s claims appears in the same record:
The submission from the applicant’s mother, Ms [A], is summarised below:
·     [Ms A] ’s Protection visa application was remitted from the Full Federal Court to the Administrative Appeals Tribunal (AAT) two years ago, and the case is pending.
·     [Miss D] was born in Australia and has never been to Colombia, as such her claims are based on her mother’s claims.
·     In 2009 [Ms A] obtained a [qualification]. In 2010 she set up a private practice [in City 1].
·     From October 2011 she started [teaching] in the morning. She taught [subjects] to about [number] students studying [course]. She would then return home and operate her [practice] .
·     The [students] were from disadvantaged backgrounds and sometimes she invited them back to her practice to observe her work and bring family members in need of treatment.
·     She was concerned that some students came to class with injuries and she sometimes treated them for free. Some injuries appeared to be firearm related. They told her they didn’t need to go to hospital and sometimes she treated them in my private practice.
·     At the start of the new school year in 2012, two students did not return to class and she was told that they were killed. Overtime other students confided in her about their involvements in criminal activities.
·     She raised my concerns with the Program Director but he told her that her relationship with the students was inappropriate and there was no further response.
·     Her students had grown up in an environment of criminality and gang activity. She didn’t know the name of the gangs they were a part of.
·     Over time, the students began to pressure her to help them more extensively and told her that she should meet their boss.
·     They told her that she should be blindfolded and taken to a secret location and provide their boss and others [services].
·     She was not interested and started to reduce her contact with them.
·     With one semester left, she was going to class and back home as a precaution, fearing she might be kidnapped and forced to meet their boss in a secret location.
·     The criminal gang developed an adverse interest in her for the following reasons:
o She refused to comply with their demands to provide them with [assistance]
o She came to know too much about their criminal activities through disclosures of students
o And she was planning to leave Colombia
·     Her grandfather died on 1 October 2012. On the way to the funeral with her husband, two people approached the car and pointed guns at her. They said words to the effect that, “the boss was still waiting” for her. After the funeral she was travelling with her mother when their vehicle was rammed.
·     After these threats she and her husband moved to her husband’s grandfather’s property. They decided to leave Colombia and began making arrangements to leave Colombia.
·     On 10 December 2012 their visas were granted but we couldn’t get a flight until mid-January 2013.
·     In May 2015 her mother received two threatening messages meant for her in [City 1]. The US Department of State and Human Rights watch have reported that there are significant human rights issues and illegal armed groups in Colombia, and in her home state of Cauca, FARC dissident groups have committed serious abuses.
·     The family cannot return to any city as they could find [Ms A] and criminals operate throughout the country.
·     Colombia cannot provide security for their case due to social problems the country is experiencing, additionally the police are corrupt.
On 24 May 2022 a further s56 Request for More Information was sent in relation to the applicant’s mother’s claims.4 [Ms A] was invited to comment on particular matters in relation to her statement.
On 21 June and 27 June 2022 responses were provided. In summary, [Ms A] stated:
·The attack against her vehicle occurred on 1 October 2012 and she left Colombia two and a half months later. This was not a significant period of time considering that time was required in order to organise their travel and affairs.
·[Ms A] did not think that the security situation and threats against her would force her to take such steps of leaving Colombia. The criminal group became involved in her because she was providing [services] for free to some members of her students’ families who were low-income people.
·Criminal groups in Colombia have intelligence on their targets. Colombia is one of the most corrupt countries in the world.
·The criminal groups, particularly in [City 1], know that [Ms A] left the country, however they also know that her family continues to live in [City 1] and they continue to persecute her family.
·Her family receive phone calls form unidentified people at all times of the day or night where they ask for [Ms A] .
·Her parents have seen suspicious vehicles around the house. Her parents had to move house four times.
·In 2015 when the group members had realised that [Ms A]’s first daughter had been born, they sent a threat to her email which included her immediate family.
·In 2019 her mother sent her mail indicating that the family had again been located.
·Her father’s health has deteriorated as a result due to the stress and anxiety.
·[Ms A] taught [approximate number] students. She does not know how many students make up the criminal gang.
·The authorities cannot assist and many people in Colombia do not trust them to provide assistance.
·It is not possible to relocate to another area of Colombia since these groups have connections with different cities.
The following supporting material was provided:
·Photograph purported to be of [Ms A] and other family members with threatening text written over it.
·A copy (including a NAATI English translation) of [Ms A]’s teaching contract. The document indicates that Ms [A] works as a [teacher]. For the period 2012-13, the contract valid from [date] to [date] 2012.
I note that in the original PV application, [Ms A] gave one address as their place of domicile in Colombia from the time of her birth until January 2013 when she departed for Australia. She said she taught at the college for one year.
Material submitted to the previously constituted Tribunal
The following evidence[2] was submitted to the previous Tribunal and is evidence before me:
[2] AAT case number 1700892
§ The parents’ protection visa application, which includes the mother’s brief handwritten
claims for protection, and partial photocopies of the parents’ Colombian passports.
§ The applicant mother attended a Department interview on 5 August 2015; the Tribunal
has listened to the recording of the interview, which is held on the Department file.
§ The mother submitted several documents at the interview:
- A photomontage containing her image, with a threatening message attached.
- A second photomontage based on a photograph of the three applicants,
threatening to attack all three.
- Several internet reports on violent crime in [City 1], including two instances of the
murder of women (one of whom [returned] home after [several]
years abroad).
§ The delegate’s decision record of 17 December 2015, which addressed only the first and
second-named applicants. A copy of this was attached to the review application.
The decision found that these applicants have statutory effective protection in some
other Latin American countries, such that Australia was taken not to have protection
obligations in respect of them. It did not assess the first-named applicant’s substantive
protection claims.
§ Copies of email correspondence between the parents and Department officers, in July
2016. The exchange indicates that the parents had not received the letter notifying
them of the delegate’s decision, and therefore did not hold visas. On 20 July 2016, the
Department wrote to [Miss C’s] mother asking for additional information in relation
to the third-named applicant.
§ On 15 August 2016, the parents submitted a copy of [Miss C’s] birth certificate, a
receipt from a doctor’s consultation and her personal health record.
§ On 16 August 2016, the Department received a completed Form 866B which provided
additional information in relation to the third-named applicant, for the assessment of
her combination application(s). It presented the child as the ‘main applicant’, and the
parents as persons included in the application.
§ On 14 December 2016, the applicants’ current representative Ms Michaela Byers
lodged a complaint, stating that the decision of 17 December 2015 was invalid
because it did not include all the applicants; that there had been no valid notification;
and that the Department should remedy this by making a fresh decision relating to all
three applicants.
§ The delegate’s decision record of 11 January 2017, in relation to the third-named
applicant only. Again, the decision addressed only the question of statutory effective
protection available to the third-named application in other Latin American countries.
§ The review application was lodged for all three applicants, and had attached to it a
copy of the two decision records.
§ The Tribunal file includes correspondence relating to the validity of the applicants’
applications for review. This includes a submission from Ms Byers dated 14 March
2017, and a statutory declaration dated 15 August 2017 from the father.
§ The statutory declaration of 15 August 2017 also includes country information about
the Andean Community of Nations, and whether the applicants have statutory effective
third State protection in its member states (although this was couched in terms of ‘relocation’ to these countries).
Evidence to the Tribunal
I asked [Ms A] about her work at the college. She said she started working there towards the end of 2011, three or four days a week. She said she taught [subject]. She said she had [number] students in her class. She said that the students were all around 19 years old. She said the academic year ran from August to June. She said that it took [number] full-time years to complete the [qualification] at the college. She said she taught students attending their second year of their course. She said that all of her students achieved satisfactory academic requirements throughout the year or so that she was teaching there. She said they all met attendance requirements as well. She said that most of the students were from low-income families, the college being engaged in some kind of affirmative action program to provide education to relatively marginalised and poor students.
I asked [Ms A] about her claims regarding students in her class belonging to a criminal gang. She said that more than half of the class belonged to a criminal organisation. I asked for the specific name of the criminal organisation and she said it was a ˵banda sicarial” or gang of assassins. She said it was a mercenary organisation that kills for hire. She said her students live normal lives but take contracts to kill people when their boss calls them to do a “job”.
I asked [Ms A] how 19-year-old [students] get to be on-call hitmen and she said, “Lack of opportunity.”
I asked [Ms A] how assassins for hire could have had the headspace to be full-time [students] and she said they wanted to improve their lives by [studying].
I put to [Ms A] that it is generally acceptable to say “I don’t know” if I ask questions going to the internal states of mind of other individuals; she nevertheless tended throughout the hearing to comprehend the innermost motivations of the people she was describing. This struck me as odd, for at one stage of the hearing she said she “didn’t know what they do” outside college hours. She went on to say to me that she did speak with the students even though she did not know what they did and somehow found out that they wanted to improve their lives.
Given that [Ms A] had what seemed quite a large class, it struck me as perplexing that so many paid assassins, all aged about the same, and all in the same gang (at least [50%] in her random [sample], purportedly) were so attracted to sitting a [multi-year course].
I asked [Ms A] why she referred in her PV application to FARC as the group that threatened her in Colombia and she said that when she mentioned FARC she was not referring to her students, but to the general situation in Colombia at the time she was still living there. I checked [Ms A]’s PV application and confirmed that her explanation she gave me at the hearing was not reliable; She clearly said at Q.47 of her PV application form that she was teaching FARC members and went on to say that FARC had killed 1520 people in Colombia in 2014 alone.
Here, the issue of [Ms A] having mentioned FARC mirrored her testimony at the hearing conducted by the previous Tribunal:
In the original statement of claims, the applicant mother specifically referred to the FARC as her source of fear … At hearing, she claimed that she did not know the name of the organisation, only that it is a professional group that uses hired killers and uses pseudonyms. She added that she has no further insight as to the identity of the criminal group that had approached her; she would have to ask her family in Colombia to make enquiries to get further information. In the Tribunal’s view, it is surprising that the applicant mother had not made further enquiries, or did not have further details to hand, about her alleged persecutors. As for the written reference to the FARC in her written statement, the applicants’ representative advised on 6 September 2017 that the applicant parents were not previously aware that the person who wrote their statement had mentioned the FARC ... The protection visa application form indicates (at Form 866B, question 17) that the applicants received no assistance in completing the form and, in any event, even a cursory glance at the text would show that ‘FARC’ appeared twice in writing.
I asked [Ms A] if she could recall what explanation she had given the previous Tribunal for having mentioned FARC in her original PV application and she said that the term “FARC” had been interpolated into her PV claims by a person helping to translate them into English.

There were further inconsistencies and far-fetched elements in [Ms A]’s evidence. One of these related to the role the gang asked her to perform. Initially she indicated to me that after she treated some of the [students’] gunshot (and other) wounds, the gang asked her to become a paid medical officer (of sorts) who would be available to treat them for gunshot wounds and the like as they occurred. I questioned whether anyone in the gang would have seriously entertained this being effective use of their resources because she might need to attend shootings fairly instantaneously in order to “save their life” as suggested at Q.47 of the original PV application form. She confirmed this in oral evidence before me when she said that the role the gang wanted to pay her to perform involved providing surgical assistance to the gang. However, later, she said that the role the gang asked her to accept involved moving to a remote location, where the police feared to enter, to become the gang leader’s personal [Occupation 1]. She said that her refusal to take on this role was what started the threats and ambushes. Meanwhile, I note that [Ms A] would have been useless ministering to gang members shot in the streets if she were based in a remote location. When I asked her if she could have been of any use to the gang if she were based in the remote location she had mentioned she said she did not think she would have been.
There was another discrepancy between evidence [Ms A] had provided in her original PV application and what she told me at the Tribunal hearing: this involved the alleged ambushing of the car in which she was travelling on the day of her grandfather’s funeral.
It will be recalled that in her PV application, [Ms A] claimed that she was travelling in a car with her mother to her grandfather’s funeral, when their vehicle was ambushed by four men on two motorcycles, one of whom put a gun to her head and said, “This is just to let you know we are no [sic] playing[.] We will not let you leave Colombia[.] You know too much about us and our activities[.]”, and then apparently just went away.
At the hearing before the previous Tribunal, [Ms A] is noted to have said:
59. … At hearing, [[Ms A]] stated that she had been in a car with her husband, when two people came and pointed guns at her – one to her side and another to her leg. One said that the ‘boss’ (the head of the criminal organisation who wanted her to [assist]) was still waiting for her.
60. The Tribunal sought clarification as to who was with her on this occasion, and what
transpired. [[Ms A]] replied that she is still in shock from the events of that day.
She felt that the written statement may have confused matters. She said that she was with
her husband when the men approached and threatened her; she cannot recall all of the
details of what happened. Later (hence, after the funeral), she dropped her husband off.
The applicant and her mother then went in separate vehicles to another function. In what
appears to be a new claim, the applicant mother said that while she was travelling to the
next place, a car rammed her vehicle, causing her to suffer a torn ligament. The applicant
mother implied that this was a second incident, further demonstrating the criminals’ resolve
to harm her.
In this second version of events, I note [Ms A] claiming that she was travelling with her husband, rather than her mother, when the gang stopped her and put a gun to her head. The words attributed to the gang on that occasion are significantly different from the words cited in the PV application. I also note her claiming that she was traveling neither with her mother nor with her husband when there was a second incident involving the car in which she was travelling being rammed by another car. Hence the evidence in the PV application is substantially inconsistent with the evidence given to the previous Tribunal.
At the hearing before me, [Ms A] said inconsistencies were the result of erroneous translation on some past occasion. She did not support this claim. She went on to say that on the day of her grandfather’s funeral she was travelling in the car with her husband who was driving. She said the car was stopped by men on two motorcycles who put two guns to her head and told her their boss was still waiting for her. I put to her that I wondered why they did not simply shoot then and there, and she said they wanted her still to consider providing the care for the boss that he was offering to pay her for. I asked [Ms A] how she was not killed on that occasion, and she said she did not refuse them when they put the guns to her head, adding that she was leading the gang along to buy time to make arrangements to come to Australia. [Mr B] spoke in support of this version of events, but it all struck me as being far-fetched to the point of being fanciful. I put to the applicants that in the original PV application, [Ms A] had claimed she was travelling in the car with her mother, not [Mr B], when the gang stopped the vehicle and put a gun to her head.
I raised concern about the discrepancy between [Ms A] claiming that she was travelling with her husband and asserting that she was in a car with her mother, when the gang appeared and put a gun to her head. The response given to me was that [Ms A] was with her mother during the other incident in which the car was rammed. However, that explanation is discrepant with the evidence about [Ms A] being rammed in a car that was separate from the one carrying her mother.
I explored other aspects of the evidence provided in this case, as it seemed implausible that the gang and its leader would have asked a married female [Occupation 2]/ [Occupation 1], with three or four jobs in [City 1], including teaching its young members to help improve their lives, to drop everything to work in a remote location. In the context of [Ms A] claiming that two of her students died in a shooting during her one-year attachment at the college, and recalling that she refused to help either the students in further gun attacks or their boss who needed a [Occupation 1], I asked two questions: one about whether the gang might have long since moved on and found other ways to keep its members alive; the other about whether many if not most of all of them, starting with the boss, might already have died, or been removed from action. Her answer to both was that she knew the gang was still there because she continued to receive threats in Australia in 2014, 2016 and 2019. When I suggested that on this evidence the gang might have lost interest, [Ms A] said her father received occasional telephone calls that gave him so much stress he required a pacemaker in 2021.
[Ms A] said that after she refused to work for the gang the students started looking for her in September 2012. She said she received no help from the college as her boss was appalled that she had been inviting students to her home. She said she then started reducing her hours, but she also said she remained at the school to finish the last term of 2012 to allay suspicion about her arrangements to depart Colombia for Australia.
I asked [Ms A] about her studies in Australia. I asked because choosing to travel to Australia for study involves arrangements that can be complex and expensive, and not necessarily quick. [Ms A], meanwhile, claimed to have commenced arrangements to leave Colombia after the students started “looking” for her in September 2012 and before the ambush at her grandfather’s funeral in October 2012, and did not actually depart until January 2013. That was arguably a long time to wait to get out of Colombia no matter what she did or did not do while she remained there. She told me she enrolled in a six-month [course] that she duly attended. She said she satisfied the academic requirements of that course. I put to her that this behaviour did not necessarily appear to be consistent with coming to Australia for protection. In reply, she said her purpose in coming to Australia had bene to learn [subject] and wait for things to calm down in Colombia. I asked her how long she had planned to wait before either going back to Colombia or applying for protection in Australia and she said she wanted to wait and see for a year or two. She said her husband then applied for a working visa, seeming to her to obviate the need to continue studying, but his sponsorship was cancelled. She said that even though he found another sponsor his working visa application was refused. She said she then became pregnant in 2014. I asked her when she was first threatened after her arrival in Australia and she said it was in October 2014, whereupon she and her husband applied for protection. I queried why they had not already departed for Colombia given that there had been no threats between their arrival in January 2013 and the alleged threat in October 2014. In reply, she said that during that period, her parents were moving house frequently to stay a step ahead of the gang which had been harassing them by telephone. From what [Ms A] was saying there was never a time between the beginning of 2013 and the ed of 2014 when things in Colombia looked like calming down and yet no-one had applied for protection, even in the midst of mishaps with the working visa sponsorship; this concerned me. I asked her therefore why she and her husband delayed bringing their protection concerns to light and she said that they had understood the protection process to be a difficult one as it involved reliving bad experiences. She said she and her husband had viewed the working visa sponsorship option as “an opportunity to do things differently”.
I put to the applicants that FARC disarmed in a process commenced in 2017 and evolved into a legitimate political party within the Colombian democratic process. I also put to them that any FARC members who did not disarm were very few in number and had formed splinter groups local to the Venezuela border where they competed against each other for a stake in the regional drug trade. In reply, [Ms A] said her family’s problems now are not with FARC but with the gang she refused to help. She said that killings in Colombia had increased in 2020-2021. I put to her that a significant proportion of these killings would likely and logically be of members of rival gangs, in the context of contested turf, and she said, “It can affect us”. However, when I asked her to say how, she referred me back to her claims about the gang that ambushed her in the car.
We discussed the evidence of the messages attached to the photographs, the last of these purportedly having been sent in 2019. I put to [Ms A] that it would have been easy to fake these, and she said she did not contrive any of them. I asked her why she thought she had not received any more of these after 2019 and she said she did not know.
I have considered the claims about facing harm due to an imputation about Colombians returning from long periods abroad having wealth that can be stolen or, more relevantly, extorted. I have considered this because [Ms A] appears to claim fear of her children being kidnapped for ransom.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[3] 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.[4]
[3] MIMA v Rajalingam (1999) 93 FCR 220 .
[4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[5] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[6]
[5] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[6] Sun v MIBP [2016] FCAFC 52 at [69].
I have taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the evidence presented in these matters.
Having reviewed all of the evidence before me, I simply do not believe [Ms A]’s evidence about having met [students] who were also gang members. This is because of the many unresolved inconsistencies discussed above: the gang having been identified as FARC, and then identified as a gang whose name [Ms A] did not know; the inconsistent evidence about the role [Ms A] was purportedly expected to take on for the gang; the inconsistent evidence about the car ambush(es), etc.
On the evidence before me, I also find the claims about a [class] being more than half-filled with 19-year-old professional assassins so far-fetched as to be fanciful.
Because I do not believe any of the evidence about [Ms A] having encountered gang members or assassins, let alone in her [class], I give no weight to the purported threatening photomontage letters. I do not accept that [Ms A]’s family has received threatening or harassing telephone calls. I can accept that [Ms A]’s father has a pacemaker, but I do not accept that this has anything to do with circumstances like the ones described in [Ms A]’s claims.
I give some negative weight, in the claimed circumstances, to the applicant parents’ delay in departing Colombia and to their delay in bringing protection claims to light in Australia.
On the evidence before me, I do not accept that [Ms A] was fleeing any potentially relevant harm when she and her husband came here in 2013. I accept that they were both probably quite well off and would generally have been seen as such by and in Colombian society, but none of her evidence, satisfies me that they were under any potentially relevant pressure for this reason. I give no weight to the claim about facing potentially relevant harm in future because of some assumption that Colombians who have spent lengthy periods abroad are wealthy. I am not satisfied that it is anything other than baldly speculative that the applicant children face any potentially relevant harm in Colombia.
I am not satisfied on the evidence before me that the applicants face any harm in the reasonably foreseeable future from FARC, or groups formerly part of FARC or other illegal organisations.
I find on the evidence before me that the present applications are totally without any relevant factual merit.
I am not satisfied that any of the applicants face a real chance of being persecuted in Colombia in the reasonably foreseeable future either separately or cumulatively, let alone, in the case of the first three applicants, for any Convention-related reason, or, in the case of [Miss D], for a reason cited in s.5J(1)(a) of the Act. Their claimed fear of being persecuted is not well founded. They are not refugees. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Accepting that applicants are all nationals of Colombia, I find that Colombia is the receiving country in this matter.
The applicants’ claims to complementary protection are essentially the same as their refugee claims. Those claims have failed due to comprehensive lack of credibility and for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, the applicants’ protection claims can no more succeed as complementary protection claims than they have as refugee claims.
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Colombia, there is a real risk that any of the respective applicants will suffer significant harm as exhaustively defined under s.5(1) of the Act.
Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusions
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Accordingly, they do not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant any of the respective the applicants protection visas.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4416

11 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies