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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
2008303 (Refugee) [2023] AATA 4416
Case
[2023] AATA 4416
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by four applicants against decisions of the Refugee Tribunal to refuse them protection visas. The primary applicant, Ms A, claimed that she and her husband, due to their professional careers in Colombia, were perceived as wealthy by the Revolutionary Armed Forces of Colombia (FARC). She alleged FARC attempted to recruit her as a medical provider, which she refused, leading to an ambush where her life was threatened and she was warned against leaving Colombia. Ms A also claimed her fear was heightened by her pregnancy and the perceived corruption of the police, rendering internal relocation impossible.
The central legal issue before the Tribunal was whether, on the accepted facts, any of the four applicants qualified for a protection visa under the Migration Act 1958 (Cth). This required determining if they met the criteria for being a refugee, specifically if they held a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and if Australia had protection obligations towards them. The Tribunal was also required to consider the definitions of "significant harm," "torture," and "cruel or inhuman treatment or punishment" as outlined in the Act.
The Tribunal considered the evidence presented, including country information from the Department of Foreign Affairs and Trade and guidelines from the Department of Home Affairs. It noted inconsistencies in Ms A's evidence, particularly her description of her role as a "doctor," which appeared to be an exaggeration given her stated occupation. The Tribunal found that the applicants did not satisfy the criterion under s 36(2)(a) or (aa) of the Act, meaning Australia did not have protection obligations towards them. Consequently, they were unable to satisfy the criteria for a protection visa.
The Tribunal affirmed the decisions not to grant any of the applicants protection visas.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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 HardyMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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.