2016302 (Refugee)

[2022] AATA 1263

2016302 (Refugee) [2022] AATA 1263 (30 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2016302

COUNTRY OF REFERENCE:                   Chile

MEMBER:Jason Pennell

DATE:30 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 30 March 2022 at 11.40am

CATCHWORDS

REFUGEE – protection visa – Chile – fear of harm from drug cartel – coerced into participating in drug importation – cooperated with police to provide information against co-accused and associates – reduced sentence – abused and threatened in prison – immigration detention – concession that claim does not meet refugee criteria – complementary protection – circumstances of offending and extent of cooperation with police – presence of foreign cartels and increase in drug-related crime – government and police initiatives, media attention and public perception – protection to remove real risk of significant harm not available – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H(1), 5J(1)(a), 5L, 5LA(1)(b), 36(2)(a), (aa), (2B)(b), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379

MIAC v MZYYL (2012) 207 FCR 211

MIEA v Guo (1997) 191 CLR 559

Pan v MIEA (1996) 64 FLR 151

Prasad v MIEA (1985) 6 FCR 155

Savvin v MIMA [1999] FCA 1265

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 October 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Chile, applied for the visa on 31 January 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).

3. The applicant appeared by video hearing before the Tribunal on Friday 12 November 2021 and 16 March 2022 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video, having regard to the nature of the matter fact that the applicant is being held in immigration detention. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. The hearing was held by via conferencing facilities using the Microsoft Teams program facilitated by [an immigration detention centre].

4. The Tribunal also received oral evidence from [Ms A], a friend and support person of the applicant.

5. The applicant was represented in relation to the review by her registered migration agent, [Mr B] of [law firm].

6. For the following reasons, the Tribunal has concluded the decision under review should be remitted.    

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

2. 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.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee 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).

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they 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.

5. 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 the 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 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’). 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

1. 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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

APPLICANTS CLAIMS AND EVIDENCE

Applicant’s Identity

1. The applicant claims that he was born on [date] in [City 1], Chile.[1] He claims he is a citizen of Chile and provided the Department with an uncertified copy of his Chilean Passport which expired in 2018[2]. The applicant claims that he has not renewed his passport. There is no evidence before the Tribunal indicating that the document provided by the applicant to the Department was bogus as defined under ss.5(1) of the Act.

   [1] Protection visa application form dated 31 January 2020, [Department file].

   [2] Chilean Passport, [Department File].

2. The applicant’s identity details in the passport provided to the Department is consistent with his evidence to the Tribunal. There is no evidence to suggest that the applicant has the right to enter and reside, whether temporarily or permanently, in any other country. Therefore, based on the applicant’s evidence and the document provided to the Department, the Tribunal accepts and finds that the applicant is a citizen of Chile as claimed and as such, his protection claims will be assessed against Chile as the country of reference and ‘receiving country’.

Applicant’s Migration History[3]

[3] Department of Home Affairs Movement record, Tribunal file 2016302, Doc ID 9056653. 

1. The applicant first arrived in Australia [in] February 2014 at the age of [age] as the holder of a Student visa (TU-570) granted on 11 January 2014. [In] September 2014 the applicant departed Australia. On 26 September 2014 the applicant was granted a further student visa and returned to Australia [in] October 2014.

2. On 29 May 2015 the applicant lodged a Visitor visa application (FA-600) in Australia, which was subsequently granted on 16 June 2015.

3. The applicant subsequently lodged a Student visa (TU-572) application on 10 August 2015, which was granted on 12 August 2015.

4. On 20 October 2017 the applicant’s Student visa (TU-572) was cancelled under section 116(1)(b), for breaching visa condition 8202(2)(a) attached to his visa.

5. On 31 January 2020 the applicant lodged a protection visa application which was refused by the Department on 12 October 2020. As a result, on 5 November 2020 the applicant lodged an application for review with the Tribunal. The applicant claims that he has not travelled to any other country in the last 30 years[4].

   [4] Protection visa application form dated 31 January 2020, [Department file].

Claims for protection and supporting documentation

1. The applicant first submitted claims for protection when he lodged his Protection visa application to the Department. The applicant’s claims are detailed in his Protection visa application form, submitted online on 31 January 2020.[5]

   Provide reasons why this applicant left that country or those countries:

   The Applicant left Chile to study and learn English Language in Australia.

   [5] Ibid.

   Did this applicant experience harm in that country or those countries?

   No

   Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

   No. When the Applicant left Chile, he did not experience harm and did not leave the country due to fears of persecution. He currently harbours fears of being harmed and persecuted by the Colombian drugs cartel as a result of his cooperation with the police during the investigation and trial process at the County Court. The country information which has been lodged in support of this application clearly highlights "horrific security crisis “in Chile. The research highlights that more than 60% of Chileans believed that they would be victims of crime as their government was too soft and could not protect them.

   Explain what the applicant thinks will happen to them if they return to that country or those countries:

   The Applicant fears being harmed and persecuted by the Colombian drugs cartels if he is to return to Chile. He was coerced into receiving a package in Australia by Colombian drugs cartels because he owed a certain [Mr C] $2000. He has disclosed the names of these individuals to the police and these criminals have found out that [the applicant] with the police during the investigation. They have threatened to persecute for cooperating with the police. They have also threatened to harm his family members whose photos and identifications they pulled out from the social media. The police have evidence of these threats and the evidence of which was disclosed during the trial.

   Does this applicant think they will be harmed or mistreated if they return to that country or countries?

   Yes. [The applicant] is likely to be persecuted and killed by the Colombian drugs cartels because of cooperating with the police during the investigation and trial. [Mr C], who was his co-accused and was jailed together with him and has vowed to teach him a lesson once they're out of the prison. [Mr C] is going to be deported, thus, making [the applicant] susceptible to persecution and harm in that volatile region.

   Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

   No. The authorities in Chile cannot protect [the applicant] because the Colombian drugs cartels are more powerful in Chile than the government. They cannot be held accountable. They're above the rule of law. The research lodged in support of this application clearly indicates that more than 60% of Chileans have no confidence in their government due to the horrific security crisis in the country fuelled by drugs cartels.

   Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

   No. The Colombian drugs cartels are all over the place in Chile. No location or state is safe from their access. Therefore, the government cannot protect him anywhere in the country.

2. The delegate of the Department summarised the applicant’s claims as follows[6]:

   [6]    Protection visa decision record, [Department file].

   ·     He left Chile to study in Australia.

   ·     While in Australia, he was coerced by [Mr C] into receiving packages from South America containing drugs because he owed [Mr C] money.

   ·     [Mr C] is a [Country 1] national who is involved with the Colombian drug cartels.

   ·     The applicant and [Mr C] were both arrested and convicted of drug related offences in Victoria.

   ·     The applicant plead guilty and is currently serving his prison sentence in Victoria.

   ·     [Mr C] received a higher sentence than the applicant and is serving his sentence in a different prison in Victoria.

   ·     The applicant assisted the Australian Federal Police (AFP) with their investigation and prosecution of [Mr C].

   ·     Once [Mr C] is released and deported to his native country, the applicant fears he will be harmed or killed on return by him in a volatile region because [Mr C] vowed to teach him a lesson once they were out of prison.

   ·     The applicant also assisted the AFP with their investigations into other similar criminals of interest to the police.

   ·     These criminals also know of the applicant’s cooperation with the police and have threatened to harm him and his family in Chile. The criminals can easily identify the applicant’s family from social media. Evidence of these threats was provided to the police during the applicant’s criminal trial.

   ·     The applicant also fears being harmed and persecuted by the Colombian drug cartels on return as a result of his cooperation with the police during the investigation and prosecution of all these criminals.

   ·     The Chilean authorities cannot protect the applicant from the Colombian drugs cartels in Chile as they are more powerful than the Chilean government. These cartels are above the law and cannot be held accountable for their actions.

   ·     Research indicates that more than 60% of Chileans have no confidence in their government’s ability to protect them due to the current horrific security crisis in the country, fuelled by drugs and cartels.

   ·     The applicant cannot relocate on return as the Colombian drug cartels are all over Chile. There is no location or place within Chile that is safe from their access.

   ·     The applicant does not suffer from any mental health issues.

3. The applicant provided the following additional material to the Department in support of his protection claims:

   a.Uncertified, black and white copy of the applicant’s Chilean passport, expiring in 2018[7]

   [7]    [Department file], [Doc ID].

   b.Plea in mitigation outline of submissions, prepared for the County Court of Victoria by [Ms D] (Counsel for the Prisoner), dated [2018][8]

   [8]    Ibid, [Doc ID].

   c.Brief outline of submissions on plea, prepared for County Court of Victoria By [Ms D] (Counsel for the Accused), dated [2018][9]

   [9]    Ibid, [Doc ID].

   d.Correspondence between the applicant’s criminal legal representatives about his intentions to co-operate and the Australian Federal Police (AFP), dated [2018][10]

   e.Criminal legal representative’s report on the applicant’s interview with the AFP, dated [2018][11]

   f.Correspondence between the Director of Public Prosecutions (DPP) and the applicant’s criminal legal representative about his intentions to co-operate with the AFP, dated [2018][12]

   g.Correspondence between the DPP and the applicant’s criminal legal representatives about assisting police and requesting a special listing of the matter, dated [2018][13]

   h.Correspondence between the applicant’s criminal legal representatives about the applicant’s behaviour while on remand, dated [2018][14]

   i.Character reference from [Mr E], Victorian Corrections Officer, dated [2018][15]

   j.Psychological assessment and commentary on protection claims, prepared by Forensic Psychologist [Mr F], dated 16 December 2019[16]

   k.Country of origin information extracted from various sources, relating to drug trafficking and security in Chile and South America[17]

   l.Submissions made by the applicant’s representative in support of the Protection visa application, dated 14 April 2020[18]

   m.Submissions made by the applicant’s representative in response to the Department’s invitation to comment on information, dated 15 September 2020[19].

   [10]  Ibid, [Doc ID].

   [11]  Ibid, [Doc ID].

   [12]  Ibid, [Doc ID].

   [13]  Ibid, [Doc ID].

   [14]  Ibid, [Doc ID].

   [15]  Ibid, [Doc ID].

   [16]  Ibid, [Doc ID].

   [17]  Ibid, [Doc ID].

   [18]  Ibid, [Doc ID].

   [19]  Ibid, [Doc ID].

4. The applicant submitted the following additional material to the Tribunal in support of his application for review:

   a.Protection visa refusal decision record, dated 12 October 2020[20]

   [20]  AAT file 2016302, Doc ID 7818870.

   b.AFP response to request for information from the Department, dated 26 August 2020[21]

   [21]  Ibid.

   c.Department’s notification of Cancellation of Student visa (TU-572) under s 116 of the Migration Act 1958 and decision record, dated 20 October 2017[22]

   [22]  Ibid.

   d.Australian Border Force letter to the applicant, advising of his unlawful non-citizen status in Australia, dated 14 February 2018[23]

   [23]  Ibid.

   e.Department’s acknowledgement of a valid application for a Protection (subclass 866) visa, undated, accompanied by visa application summary[24]

   [24]  Ibid, Doc ID 9066820.

   f.Department’s Notification of grant of Bridging E (Class WE) Bridging (Subclass 050) (Bridging (General)) visa, dated 13 February 2020[25]

   [25]  Ibid.

   g.Department’s request to attend protection visa interview letter, dated 20 February 2020[26]

   [26]  Ibid.

   h.Department’s invitation to comment on information for a protection visa letter, dated 27 August 2020[27]

   [27]  Ibid.

   i.Department’s Notification of refusal of application for a Protection (subclass 866) visa, dated 12 October 2020[28]

   j.Uncertified colour copy of the applicant’s Chilean passport, expiring in 2018[29]

   k.County Court of Victoria Sentencing [Record of Decision], dated [2018][30]

   l.Country Information: InSight Crime website article ‘In Chile, Drug Trafficking Becoming More Prominent and Violent’, dated 7 August 2020[31]

   m.Country Information: InSight Crime website article ‘Chile Sees Drug Trafficking as Most Severe National Security Threat: Survey’, dated 3 June 2020[32]

   n.Submissions made by the applicant’s representative in support of the Protection visa application Tribunal review, undated[33]

   o.Affidavit made by the applicant’s friend [Ms A], dated 9 November 2021[34]

   p.Affidavit made by the applicant on 9 November 2021[35].

Applicants Evidence

[28]  Ibid.

[29]  Ibid.

[30]  Ibid.

[31]  Ibid.

[32]  Ibid.

[33]  Ibid.

[34]  Ibid.

[35]  Ibid.

1. The applicant claims that he was born on [date] in [City 2], Chile. The applicant’s evidence was that his mother, father and two [brothers] continue to live in Chile.[36] The applicant’s father was employed by a [company] known as [Employer 1]. The applicant’s [first] brother is also employed at [Employer 1]. His other brother is an administrator at [Employer 2].[37]  The applicant’s evidence was that his father is now retired. The applicant is not married and has no children. [38] He claims he can speak, read and write in Spanish and English, that he is an ethnic Chilean and Catholic[39].

   [36]  Applicant’s Affidavit dated 9 November 2021

   [37]  Applicant’s Plea in Mitigation Outline of Submissions dated [2018] [County Court of Victoria]; AAT File 2016302, Doc ID 9066820

   [38]  Applicant’s Affidavit dated 9 November 2021

   [39]  Ibid.

1. The applicant completed his school in [City 2], Chile. He then studied [Subject 1] at [University] in Santiago Chile.[40] The applicant deferred his studies to travel to Australia and did not complete the course. The applicant initially arrived in Australia [in] February 2014 on a student visa for the purpose of studying English. The applicant attended a six-month course English course at [College 1] after which he returned to Chile to see his parents. The applicant then returned to Australia for the purposes of completing a second semester at [College 1]. While the applicant attended his course, he worked for approximately 20 hours a week for a [company].[41]

   [40]   Please in Mitigation Outline of Submissions Country Court of Victoria. [2018]

   [41]  Affidavit of [the applicant] dated 9 November 2021. AAT file 2016302, Doc ID 9066820

2. In or about March 2015 the applicant applied for a tourist visa, which did not allow his to work. As a result, he went backpacking around Victoria and New South Wales.[42]

   [42]  ibid

3. In or about June 2015 the applicant was granted a student visa for a period of two (2) years. The applicant commenced studying a diploma in [Subject 2] and was working approximately 20 hours per week as [an occupation]. The applicant was living in shared accommodation at the time of commencing his course.[43] 

   [43] ibid

4. In or about 2015 the applicant commenced a relationship with a girl from Chile who had come to Australia to study English for a year. The applicant moved in together sharing a room.  In or about April 2016 she had a miscarriage and in June 2016 she returned home to Chile.  

5. The applicant claims that he was greatly affected by his girlfriend miscarriage and the fact that she has returned to Chile. His evidence was that he was not getting enough shifts at work to meet his expenses and as a result was not able to afford his accommodation on his own. As a result, in or about December 2016 he moved to another shared accommodation in [Suburb 1], Melbourne.[44]

   [44] ibid

6. The applicant’s evidence was that because he had been short of money, he was not able to pay his tuition fees. As a result, he asked his roommate if he was able to loan him $2,000.00 for a couple of months.  The applicant’s evidence was that his roommate was not able to loan him the money and introduced him to [Mr C]. The applicant explained his situation to [Mr C], and he agreed to lend the applicant $2,000.00.

7. The applicant claims that after a while he had saved the money to repay the loan to [Mr C]. However, he said to the applicant to keep the money and he would ask for it when he needed it. However, the applicant’s evidence was that because had been unable to find work he used the money to pay tuition fees and to pay for his living expenses.  

8. The applicant claims that subsequently [Mr C] said to him that ‘a favour is paid with a favour’ and told him that he had sent the applicant a package to the [Suburb 1] address and that he wanted the applicant to pick it up. The applicant claims that he was not aware of what was in the package and that he did not ask [Mr C] what was in the package.[45]  The applicant claims that [Mr C] said to him that if the package was lost the applicant would have to pay for it personally, but if he picked it up, he would give the applicant money for his trouble. As requested, the applicant collected the package and delivered it to [Mr C] as requested.

   [45] Applicant’s Plea in Mitigation Outline of Submissions dated [2018] [County Court of Victoria]; AAT File 2016302, Doc ID 9066820

9. After this initial pick up, the applicant continued to maintain contact with [Mr C].[46]  The applicant claims that he was intimidated and threatened by [Mr C]. He claims that [Mr C] said to him that he has friends in the applicant’s hometown of [City 2] in Chile and that he threatened him and his family by stating words to the effect that ‘what happens to people that fall out with the Colombian group.’ The applicant’s evidence is that people in [City 2] have been killed over drug disputes and that he is aware of Colombians in [City 2] who are known criminals.[47]

   [46]  Protection visa decision record, [Department file]

   [47]  ibid

10. The applicant’s evidence was that he was not able to afford his accommodation and had fallen behind in his rent. As a result, in or about June 2017 he moved out of his [Suburb 1] address. In or about July 2017 [Mr C] travelled to Colombia and informed the applicant that he had sent him a package to the [Suburb 1] address. The applicant agreed to collect that package as he was feared being liable to [Mr C] for the value of the contents of the package. The applicant’s evidence was that he believed that the only way out of the situation was to collect the package and collect the $2,000.00 he was promised to be paid for his involvement and then to distance himself from [Mr C].[48] As a result, the applicant arranged with his previous flat mate for him to collect the package and delivered it to [Mr C] as requested.

    [48]  Applicant’s Plea in Mitigation Outline of Submissions dated [2018] [County Court of Victoria]: AAT File 2016302, Doc ID 9066820

11. On 10 October 2017, the applicant collected the package from the [Suburb 1] address and delivered it to [Mr C] at a nearby service station. It was the applicant’s evidence that the package had been sent to the address from Chile. The package had been intercepted by the authorities and found to have contained 403 grams of pure cocaine. As a result, it was under surveillance by the Australian Federal Police. The applicant and [Mr C] were arrested and charged with one count of attempting possess a markable quantity of a border-controlled drug, namely cocaine.[49]   Both the applicant and [Mr C] pleaded guilty to the charge. [Mr C] was sentenced to [number] years imprisonment with a minimum non-parole period of [number] years. The applicant was sentenced to [number] years imprisonment with a non-parole period of [number] years.

    [49]  Ex Tempore Reasons for Decision, [County Court proceeding] dated [2018]

12. The applicant claims that prior to his trial his solicitor showed him a brief the Australian Federal Police (‘AFP’) had put together against [Mr C] which indicated that [an agency] had intercepted his telephone and found another [number] codes for additional parcels totalling [number] kilos.  The applicant claims that to be able to finance drugs on such a scale from one continent to another there must be a sophisticated network of people.[50] As a result he claims that [Mr C] had contacts within the drug syndicate responsible for sending the package to the [Suburb 1] address.  The applicant claimed that during the sentencing the Judge referred to photos of the applicant’s family held by [Mr C]. The applicant claims that he fears for his life if he is returned to Chile.

    [50] Affidavit of [the applicant] dated 9 November 2021 at [14]. AAT file 2016302, Doc ID 9066820

13. The applicant claims that when he and [Mr C] were arrested, [Mr C] told him to take the blame for the drugs. He claims that [Mr C] showed him a picture of his family before they went to court and told him that he should think of his family before he enters a plea.[51] The applicant claims that contrary to [Mr C]’s instruction he did not ‘take the blame’ for the drugs which led to [Mr C] being imprisoned. The applicant claims that [Mr C] is seeking retribution against the applicant for not declaring that the drugs were his. The applicant claims while he was in jail, he was labelled a ‘dog’ for cooperating with the police and not taking responsibility for the drugs.[52] In addition he claims that he has been physically abused while in jail and feared the inmates associated with [Mr C] and the drug syndicate would harm him.

    [51]  Protection visa decision record at p.3, [Dept file]

    [52]  Protection visa decision record at p.4, [Dept file]

14. The applicant claims that he assisted the AFP with their investigations into other criminals. In particular, he claims that he provided information to the police about an associate of [Mr C] who is Colombian. The applicant claims that these criminals know of his co-operation with the police and have threatened to harm him and his family in Chile. As a result of the threats the applicant and [Mr C] were placed in different prisons.[53] He claims that that he will be persecuted by the Colombian drug cartels on return because of his cooperation with the police during the investigation and prosecution of all these criminals.

    [53]  Protection visa decision record at p.4, [Dept file]

15. [Ms A] also gave evidence to the Tribunal that confirmed her affidavit dated 9 November 2021.[54]   Her evidence was that she came to know the applicant’s family in or about [date] 2018 prior to him being sentenced. Her evidence was that the applicant’s family are hardworking humble people of good character. She states that she speaks to the applicant parents on a regular basis. She states that she was informed by the applicant’s parents that in or about September 2021 while out to dinner someone tried to run them off the road without any reason (‘the September 2021 incident’).[55] She claims that obscenities were screamed at the applicant parents during which the applicant’s name was mentioned. The car had no number plates and the only description to police was that the offender has a Colombian accent.[56] [Ms A] is informed that this is not the first occasion that such an incident has occurred, and they are not convinced it is a coincidence.[57] They fear that the applicant’s life will be in danger if he is returned to Chile. The Tribunal notes that no direct evidence of the September 2021 incident was provided to the Tribunal by the applicant’s parents.

    [54]  Affidavit of [Ms A] dated 9 November 2021; AAT file 2016302, Doc ID 9066820

    [55]  ibid

    [56]  ibid

    [57]  ibid

COUNTRY INFORMATION

1. There is no country information report about Chile prepared by DFAT for protection status determination purposes. The Tribunal has therefore considered various country of origin information sources including the National documentation packages prepared by the Immigration and Refugee Board of Canada (IRBC). The Tribunal has considered the IRBC Response to Information dated 9 November 2021 as detailed in Annexure ‘A’ to this decision. [58]  

   [58]  Responses to Information Requests - Immigration and Refugee Board of Canada dated 9 November 2021; http//:irb.gc.ca/en/country-information/rir/Pages/index.aspx

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which may affect how an applicant answers questions by the Tribunal. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[59] Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[60]

   [59] Section 5AAA of the Migration Act 1958.

   [60] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.[61]

   [61]   Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194

4. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[62] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts. The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears.

   [62] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at [196]

Refugee claim

1. Pursuant to section 5H(1) of the Act a person is a refugee if  the applicant is outside his country owing to a present, well-founded fear of persecution for a reason that falls within the scope of s 5J(1)(a) of the Act and he is unable or unwilling, due to the present and well-founded fear, to avail himself of the protection of that country.[63]

Applicant’s relevant grounds

[63] Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [60], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act.

1. The applicant did not submit that his claim fell within the scope of s 5J(1)(a) of the Act.[64] That is, by reason of his race, religion, nationality membership of a particular social group (PSG) or political opinion. The applicant claims that because of having co-operated with the Australian authorities in relation to the charges he will be harmed by members of a drug cartel upon being returned to Chile. It was open to the applicant to claim that he fell within s 5J(1)(a) of the Act as a member of a PSG, as a person who will be seriously harmed by members of a drug cartel in the event he is returned to Chile.  

   [64] Applicant’s Statement of Facts, Issues and Contentions; AAT file 2016302, Doc ID 9066820

2. Section 5L of the Act states:

   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.

3. To be considered as a PSG it is necessary for the applicant to share (or be perceived to share) an innate or immutable characteristic with each member of the group or it is fundamental to the members identity or consciousness or distinguishes the group from the rest of society. During the hearing the applicant’s representative conceded that the applicant claims did not fall within the scope of s 5J(1)(a) of the Act and as such the applicant was not a person to whom Australia owed protection obligations pursuant to s.36(2)(a) of the Act. In addition, by his written submissions[65] to the Tribunal that the applicant did not make any submission as to him being entitled to protection as a refugee under s.36(2)(a) of the Act. Rather, the applicant submitted that he was entitled to Complimentary Protection pursuant to s.36(2)(aa) of the Act.

   [65] ibid

4. In this case the Tribunal accepts that the applicant is not a member of a PSG. Accordingly, the Tribunal finds that the applicant’s claims do not fall within the scope of s 5J(1)(a) of the Act.[66] That is, by reason of his race, religion, nationality membership of a particular social group (PSG) or political opinion. Accordingly, the Tribunal finds that the applicant is not owed protection obligations as a refugee pursuant to s.36(2)(a) of the Act.

   [66] Applicant’s Statement of Facts, Issues and Contentions; AAT file 2016302, Doc ID 9066820

Complimentary Protection claim

1. The applicant claims that it is reasonably foreseeable that there is a real risk he will be significantly harmed by drug cartels because:[67]

   (a)he openly co-operated with the AFP.

   (b)the information provided by the applicant has given the AFP a greater clarity of the syndicate’s activities within Victoria.

   (c)[Mr C] has threatened the applicant and his family and extracted photos of the applicant’s family from [social media].

   [67] Applicant’s Statement of Facts, Issues and Contentions at [30]; AAT file 2016302, Doc ID 9066820

2. The applicant has been consistent in his evidence that, together with [Mr C], he was charged and convicted of drug importation offences. The Tribunal notes the County Court of Victoria Ex Tempore Reasons for Sentence dated [2018] which details the circumstances in which the applicant was charged and pleaded guilty to one charge of attempting to possess a marketable quantity of a border-controlled drug, namely cocaine (‘the offence’). While there are some discrepancies between the applicant’s evidence to the Tribunal and the findings by the County Court of Victoria concerning the circumstances of the offence, including as how the applicant became to be involved with [Mr C] and whether he was coerced due to his financial circumstances,[68] the Tribunal accepts and finds that the applicant and [Mr C] were charged and convicted of the offence as claimed.   

Applicant’s co-operation with the AFP

[68] [County Court of Victoria] Ex Tempore Reasons for Sentence dated [2018]; AAT file 2016302, Doc ID 9066820

1. The applicant claims that when he was arrested, he openly co-operated with the AFP. He claims that he disclosed names of members of the drug syndicate to the AFP, many of which were investigated and arrested because of the information he provided to the authorities. However, the applicant’s evidence in relation to the drug syndicate and the identities of its members was vague and lacking in any details. The applicant did not provide any evidence to the Tribunal in relation to the syndicate, including the names of its members that he claims to have provided the AFP. Save to say that the syndicate was Colombian, the applicant did not provide any evidence as to the identity of the syndicate, including the identity of its leaders, where it was based or how it operated in Chile and Australia. The applicant stated that a person known as [Mr G] was involved in the drug syndicate and the delivery of drugs to Australia for Chile. He claimed that [Mr G] would harm him if he was returned to Chile. However, he was not able to tell the Tribunal [Mr G]’s involvement with syndicate or his current location. In addition, the applicant did not receive any threats from [Mr G].  Finally, the applicant did not identify any member of the syndicate who had been arrested because of the information he had provided to the AFP.    

1. In his Reasons for Sentence[69] His Honour Judge [H] made findings about the applicant’s and [Mr C]’s role in the offence. In doing so His Honour took account of the admissions and other information provided by both the applicant and [Mr C] at their respective police interviews.[70]  His Honour found that [Mr C] was organiser of the delivery of drugs and that he recruited the applicant. As such His Honour found that [Mr C]’s criminality was higher than the applicant’s.[71] His Honour found that [Mr C] was responsible for the delivery of the drugs to the applicant’s address, its collection by the applicant and to receive it from the applicant and move it ‘further down the line.’ [72] His Honour noted that in circumstances where the applicant was to be paid $2,000.00 to receive drugs valued at between $[amount] and $[amount],[73] his role of proving an address for delivery and collecting it on behalf of [Mr C] fitted a long-standing pattern of such arrangements where he had taken an extraordinary risk in return for ‘peanuts.’[74]

   [69]  [County Court of Victoria] Ex Tempore Reasons for Sentence dated [2018]; AAT file 2016302, Doc ID 9066820

   [70]  [County Court of Victoria] Ex Tempore Reasons for Sentence dated [2018] at [22]-[23]; AAT file 2016302, Doc ID 9066820

   [71]  [County Court of Victoria] Ex Tempore Reasons for Sentence dated [2018] at [25]-[28]; AAT file 2016302, Doc ID 9066820

   [72]  [County Court of Victoria] Ex Tempore Reasons for Sentence dated [2018] at [26]; AAT file 2016302, Doc ID 9066820

   [73]  [County Court of Victoria] Ex Tempore Reasons for Sentence dated [2018] at [9]; AAT file 2016302, Doc ID 9066820

   [74]  [County Court of Victoria] Ex Tempore Reasons for Sentence dated [2018] at [27]-[28]; AAT file 2016302, Doc ID 9066820

2. His Honour noted that [Mr C] had expressed remorse for his actions.[75] The fact that [Mr C] had plead guilty to the charges and expressed remorse for his criminality suggests that he had accepted his role in the offence. Nevertheless, the applicant states that the information provided by him to the AFP help confirm and clarify his and [Mr C]’s actions. The applicant submits that the [Mr C] blamed him for being found guilty and placed in prison for the charges. As a result, [Mr C] has made verbal threats to deal with him once released from prison.

   [75]  [County Court of Victoria] Ex Tempore Reasons for Sentence dated [2018] at [37]-[40]; AAT file 2016302, Doc ID 9066820

3. The Tribunal notes that delegate in his decision referred to the fact that on 26 August 2020 the AFP provided information to the department[76] that confirmed that during his record of interview, the applicant had made admissions in relation to the actions of [Mr C].  The AFP advised that the admissions were inadmissible and therefore little value to the prosecution of [Mr C].[77] However, the applicant’s evidence is that his evidence helped confirm and clarify the prosecution’s case against the applicant and [Mr C].  

   [76] Protection visa decision record at p.5, [Dept file]; [AFP Response]- Request for Information – [the applicant].

   [77] ibid

4. In addition, the AFP advised that the applicant provided valuable insight into the methodologies employed by the criminal syndicates to commit offending. It’s advised that the information provided greater clarity of the syndicate activities within Victoria and provided an opportunity for the police to disrupt its criminal activity and to target specific individuals.[78]  In addition the AFP reported that the applicant did withhold some information from the police concerning the identities of individuals involved in the syndicate out of fear for his safety.[79] The applicant’s evidence was that he withheld information about the identities of certain individuals out of fear for his own safety.

   [78] ibid

   [79] ibid

5. Finally, the AFP noted that while it was not aware of any threats made against the applicant, it was aware that significant criminal syndicates have threatened people and their families if they co-operate with the police.[80] During the applicant’s and [Mr C]’s trial, the Prosecution openly divulged to the Court that the applicant had co-operated with the police. While the AFP was not able to say the extent to which a criminal syndicate knew of the applicant’s co-operation with the police it confirmed that [Mr C] was aware that the applicant has co-operated with the police. As a result, [Mr C] and the applicant were housed in separate prisons.[81]

   [80] ibid

   [81]  ibid

6. Based on the information provided by the AFP, the Reasons for Sentence and the applicant’s own evidence, the Tribunal accepts that the applicant co-operated with the authorities at the time of his arrest and provided admissions in relation to his and [Mr C]’s involvement in the offence as claimed.

7. The applicant claims that prior to the second package [Mr C] threatened and intimidated the applicant and told him that he had friends in the applicant’s hometown ([City 2]) indicating a threat against the applicant and his family if he did not continue to comply with his demand. The applicant continued to cooperate with [Mr C] up to the point when they were arrested.

8. The applicant’s evidence was that after he and [Mr C] where arrested, [Mr C] told the applicant to take the blame for the drugs. Prior to entering Court [Mr C] showed him a picture of his family and said to think of his family before entering his plea. His Honour Judge [H] in the Reasons for Sentence refers to the fact that both [Mr C] and the applicant had been under surveillance by the AFP and that they were arrested in accordance with a controlled operation by the AFP.[82] The Tribunal notes the AFP’s advice to the department that the admissions made by the applicant in relation to [Mr C]’s involvement were inadmissible.[83] Nevertheless, while it appears from the Reasons for Sentence that the prosecution relied on its own investigations in arresting and charging the applicant and [Mr C], it’s apparent from the AFP’s advice[84] that the applicant’s information helped confirm and clarify the prosecution’s case against him and [Mr C]. 

   [82]  [County Court of Victoria] Ex Tempore Reasons for Sentence dated [2018] at [13]-[16]; AAT file 2016302, Doc ID 9066820

   [83]  Protection Visa Decision Record dated 12 October 2020 at p.5

   [84] Protection visa decision record at p.5, [Dept file]; [AFP Response]- Request for Information – [the applicant]

9. Finally, the AFP was not able to advise as to the extent to which any criminal syndicate is aware that the applicant co-operated with the police. Nevertheless, it confirmed that [Mr C] would have been aware that the applicant had co-operated with police during his record of interview. As a result, the applicant and [Mr C] were placed in different prisons.

10. The Tribunal notes that the police advised that any admissions made by the applicant were inadmissible and not able to be used against [Mr C]. In addition, the fact that [Mr C] pleaded guilty to the charges means that he appears to have accepted the evidence presented by the police and responsibility for his actions. While the applicant admitted that his admissions were not able to be used directly by the police, the evidence he provided assisted in proving the charges against [Mr C]. 

11. The delegate in her reason for decision[85] noted that the applicant displayed little knowledge of [Mr C]’s operations in Australia or his connections with Colombian drug cartels in Chile or Colombia. In addition, His Honour in the Reasons for Sentence[86] refers to the applicant as being a ‘cut out’ for [Mr C]’s protection. His Honour noted that the applicant was only one of many, in what he described as ‘a long-standing arrangement,’ in which the applicant was paid very little to take large risk. The AFP advised that the applicant had withheld information about the identities of individuals involved in the syndicate.[87] The applicant admitted to withholding such information from the police but stated that he did so out of fear of being harmed if he provided the names of individuals involved in the syndicate. The Tribunal finds that it would be reasonable for the applicant to have withheld information on the basis that he may be harmed by syndicate members. As such it accepts the applicant’s evidence that he withheld information out of fear for his own safety  

    [85] Protection Visa Decision Record dated 12 October 2020 at p.8; AAT file 2016302, Doc ID 9066820

    [86]  [County Court of Victoria] Ex Tempore Reasons for Sentence dated [2018] at [25]; AAT file 2016302, Doc ID 9066820

    [87] ibid

12. The applicant’s evidence in relation to his involvement or knowledge of a Colombian drug syndicate’s operations in Australia or Chile was limited. In circumstances where he merely provided his address and agreed to collect the package for the purposes of delivering it to [Mr C], it is perhaps understandable he had limited knowledge of the syndicate’s operations beyond his immediate experience. Nevertheless, from the Reasons for Sentence it was clear that the applicant had socialised with [Mr C], becoming familiar with some of [Mr C]’s associates and the syndicates operations. His Honour in the Reasons for Sentence accepted that the applicant has co-operated with the police.  As such based on the Reason for Sentence and the applicant’s own evidence the Tribunal accepts that the applicant provided information to the police. In addition, the Tribunal accepts that [Mr C] was aware that the applicant had co-operated with the police and that he threatened the applicant to take the blame for the offence as claimed.

13. The applicant claims that his family will be harmed if he is returned to Chile. By an affidavit dated 22 November 2021 by [Ms I] (the applicant’s mother) (the [Ms I] affidavit) stated that she had been involved in three suspicious events. She claimed that when returning from her sons [Mr J] birthday in [City 1], Chile her husband and her were approached by a car flashing its lights and almost bumping into them. She was not able to distinguish the faces of the people in the car. Nevertheless, her evidence was that her husband was able to speed up until the car was out of sight. In addition, she claimed that about a year later she was going to the local shop with her daughter to buy bread when a car recklessly stopped in front of them and a person with a foreign accent insulted them. Finally, she claimed that in September 2021 her husband and her were traveling to buy food. While at a stop sign a white vehicle overtook them recklessly and blocked their passage. They reversed the car and were able to find a safe place to stop and take shelter in a local restaurant.  The Tribunal notes that on each occasion the applicant’s mother was not significantly harmed. In addition, she was not able to identify the individuals responsible for each incident. It is possible that each are random incidents at which the applicant’s mother has been at the wrong place at the wrong time rather than any attack upon her by syndicate members. Therefore, in the absence of any evidence to the contrary the Tribunal does not accept that the incidents described in the [Ms I] affidavit were by members of a drug syndicate related to the applicant’s charges.  Given the passage of time and the fact that the applicant family have not been threatened or significantly harmed by members of a syndicate since the time of the applicant’s arrested and conviction, the Tribunal does not accept that the applicant’s family will be significantly harmed as claimed.  Accordingly, the Tribunal does not accept that there is a real risk of the applicant’s family being seriously harmed by members of a drug syndicate as claimed by the applicant.

14. Nevertheless, based on the Reasons for Sentence and the applicant’s evidence that he provided information to the police and that he had been threatened by [Mr C], the Tribunal does accept that it is reasonably foreseeable that there is a real risk the applicant will be significantly harmed by members of the drug syndicate associated with his charges and conviction as claimed. As a result, the Tribunal accepts that there is a real risk that the applicant will be harmed by members of a drug syndicate if he is returned to Chile. 

Applicants Effective Protection

1. The applicant’s evidence to the Tribunal was that the Colombian syndicate had great influence in Chile, in and around his area in the North of Chile. He claimed that he would be harmed by members of the syndicate for having cooperated with the AFP if he was returned to Chile. 

2. In circumstances where the Tribunal accepts there is a real risk of significant harm to the applicant then under s.36(2B) of the Act, there is no real risk of significant harm if the applicant can ‘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’[88] To satisfy s.36(2B)(b)[89], the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[90] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[91] The test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection. Section 36(2B)(b) of the Act requires the Tribunal to be satisfied that the protection available would remove the real risk of significant harm.

   [88] s.36(2B)(b) of the Migration Act 1958

   [89]   MIAC v MZYYL (2012) 207 FCR 211

   [90] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.

   [91] In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).

3. The country information[92] reports that the security environment in Chile is moderately safe, having comparatively less violent crime than other Latin American countries.[93] It’s reported that violent crime (e.g., carjacking, home invasion, and mugging; express and traditional kidnapping and random shootings) are very low.  Nevertheless, it’s reported[94] that drug trafficking in Chile has recently become increasingly prominent, diversified, and violent. The Executive Director of Chile 21 indicated that criminal organizations are located "especially" in the Santiago Metropolitan Region and in northern Chile, including in the Arica, Antofagasta and Tarapacá regions. The 2020 Observatory of Drug Trafficking report indicates that the northern regions of Antofagasta and Tarapacá have high levels of drug seizures.[95] As a result, Chileans are becoming more worried about the threat posed by organised crime.  Police complaints involving drug-related homicides make up a small percentage of drug related complaints but did rise from six in 2010 to 30 in 2019.[96]

   [92]  QSAC Country Security Report, Chile 2020 Crime & Safety Report.   ibid

   [94]  InSight Crime, ‘In Chile, Drug Trafficking Becoming More prominent and Violent.’ dated 7 August 2020 by Zachary Goodwin   Responses to Information Requests - Immigration and Refugee Board of Canada dated 9 November 2021; http//: irb.gc.ca/en/country-information/rir/Pages/index.aspx

   [96]   QSAC Country Security Report, Chile 2020 Crime & Safety Report. >

   It’s reported that drug trafficking into Chile is mostly handled by Bolivian and Peruvian organizations, at times in collaboration with local groups. Once in the country, drugs are typically sold by street gangs (many of which operate in Santiago), or they are shipped abroad to foreign markets.[97] Drug trafficking methods have evolved with an increase in the use of Chilean ports and maritime routes with a shift away from the traditional Paraguay-Bolivia-Chile trafficking axis towards routes running through Colombia, Ecuador, Peru and Chile. In 2019 the Chilean authorities discovered 15 clandestine drug production laboratories in and around Santiago and Antofagasta.[98] It’s reported that drug seizures are higher in the northern regions of Antofagasta and Tarapacá.

   [97] Insight: Chile Profile accessed 14 February 2022; ibid

4. Its reported[99] that there is no real evidence (as evidenced in police and judicial reports) that indicates a presence of Colombian drug cartels in Chile. While there are connections between Chilean and foreign nationals, they are not expressed through a large cartels or organization. Nevertheless, criminal organizations based in neighbouring countries such as Colombia, Peru and Bolivia have been involved in illegal activities in Chile.[100] For example in 2019 a leader of the Colombian La Terraza gang was arrested for operating a loansharking network in Chile. In addition, in December 2019 the Chilean navy arrested six Colombian nationals on a boat containing 4.2 tons of marijuana off the coast of O'Higgins in the south of Chile.[101] An increase in media and government attention on drug trafficking has fostered a disproportionate public anxiety when compared to the country’s actual levels of violence.[102] A June survey that found that 79 percent of Chileans and 69 percent of Chilean experts viewed drug trafficking and organized crime as a “crucial or significant threat to national security” ahead of climate change, pandemics and cyberattacks.  

   [99] Immigration and Refugee Board of Canada, Responses to information requests,       ibid

   [101] ibid

   [102] InSight Crime, ‘In Chile, Drug Trafficking Becoming More prominent and Violent.’ dated 7 August 2020 by Zachary Goodwin >

   Chile’s two main public security bodies are the Carabineros, a national militarized police force and the Chilean Investigative Police (Policia de Investigaciones de Chile) (‘PDI’), a civilian police force responsible for investigating crimes, including drug trafficking and organized crime.[103] Both the Carabineros and the PDI have internal intelligence agencies. Chile’s security forces work with several international partners. The country co-operates with the United States on security issues predominantly related to drug trafficking, and with Bolivia on counternarcotic operations on the countries' shared border.[104] The Chilean military also works closely with Argentina and has a joint force trained in humanitarian work.[105]

   [103] Insight; Chile Profile accessed 14 February 2022; ibid

   [105] ibid

5. Chile’s security forces have faced allegations of involvement in human rights abuses. [106] This has included the use of excessive force and unlawful killings.[107] According to human rights organizations, trials through the military courts have lacked "independence and impartiality" with "many legitimate complaints" being dismissed. In addition, corruption has also been a problem within the Carabineros and the PDI.[108] In 2013 several Carabineros officers were arrested for smuggling marijuana from Bolivia into Chile. In 2017, the Carabineros were implicated in a multimillion-dollar fraud scandal, which a Chilean prosecutor called “the biggest embezzlement in the history of Chile.”[109]

   [106] ibid

   [107] ibid

   [108] ibid

   [109] ibid

1. In 2020 it was reported[110] that damning allegations of a string of human rights abuses, cover-ups and impunity prompted growing calls for a root-and-branch reform of Chile’s national police force. Amongst the allegations of abuse was a police officer who was reportedly caught on camera throwing a sixteen-year-old over a railway bridge in Santiago[111] together with two police officers charged with torturing six detainees, four of which were children.[112]

   [110] The Guardian ‘Calls grow for radical reform of Chiles national police force’ by John Bartlett 14 October 2020; ibid

   [112] ibid

2. As a result of the reported human rights abuses international NGOs have criticized the police force in Chile. On 14 October 2020 Amnesty International reported[113] on ‘ systematic human rights abuses on the part of the Carabineros’ and demands an end to a “tradition of impunity”.[114] In the report Amnesty International’s Americas director, Erika Guevara-Rosas, states that ‘[T]these are not isolated cases of officers who have not followed protocols – this report is the culmination of a year-long investigation that has found human rights abuses and the excessive use of force are entirely normalised, as is impunity for the perpetrators.’ As a result, she stated that the ‘highest levels of command in the Carabineros must be criminally investigated for their responsibility in permitting and enabling these abuses.’[115] It’s reported that as result of the allegations of human rights abuses that Carabineros’ reputation has fallen dramatically: in 2016 it was Chile’s best-regarded institution, but a survey published on Monday showed that its approval rating had dropped to 36%.[116] In light of the reported human rights abuses the Judicial Studies Centre of the Americas[117] has suggested that there are serious institutional imbalances within Carabineros that stand as an obstacle to carrying out criminal prosecutions and undermine the due controls and balances of the democratic system.

   [113] Amnesty International ‘Chile: National Police commanders must be criminally investigated for human rights violations.’ ibid

   [115] ibid

   [116] The Guardian ‘Calls grow for radical reform of Chiles national police force’ by John Bartlett 14 October 2020; CEJA, Transforming the Chilean Police (Carabineros de Chile) 28 December 2020. >

   The applicant contends that as a person who has provided information to the Police he will be significantly harmed upon his return to Chile. His evidence was that judging by quantity of drugs delivered to his address that [Mr C] has connection within a larger organisation to be able to ensure that the applicant will be seriously harmed upon his return to Chile. The package sent to his address was sent from Chile. As a result, the applicant claims that [Mr C]’s contacts will be able to reach him in Chile. He claims that having co-operated with the police been threatened he will be targeted by associates of [Mr C] as a lesson to others working for them and for the purposes of protecting their interests in the future.  The applicant’s evidence was that he would not be able to obtain protection from the Chilean police to the extent that would remove the real risk of being significant harm by members of a drug syndicate in Chile. The country information suggests that he would not be able to obtain protection for the police larger organisation.

3. The Tribunal has accepted that is a real risk the applicant will be significantly harmed by members of a drug syndicate upon his return to Chile. The country information suggests that there has been an increase in drug-related crime in Chile. In addition, it suggests that there are significant institutional imbalances in the police force in Chile which has resulted in the police committing human rights abuses. The Tribunal notes that while the country information suggests that individuals in Chile will not be ignored by the police if they report being targeted by an organization, there is no witness protection program or other government organization that can offer long-term protection.[118] In addition it is reported that there is increasing evidence of interaction between police officers and local criminal organizations.  It is reported that the "main threat" is not that police officers are working for criminal organizations but rather they are absent or activity "absent" from some neighbourhoods.[119]

   Responses to Information Requests - Immigration and Refugee Board of Canada dated 9 November 2021; http//: irb.gc.ca/en/country-information/rir/Pages/index.aspx

   [119]  ibid

4. Therefore, based on the available country information, the Tribunal finds that the applicant could not obtain from an authority in Chile protection to the extent that there would no real risk he would suffer significant harm upon his returned to Chile. Therefore, based on the applicant’s evidence together with the available country information, the Tribunal is satisfied that if the applicant was returned to Chile, there are no effective protection measures available to the applicant in Chile by the State and that the State is unable and unwilling to provide such protection.[120]

   [120]  s.5LA(1)(b) of the Act

5. Accordingly, the Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country (Chile), that there is a real risk that he will suffer significant harm pursuant to s.36(2)(aa) of the Act.

6. At no stage did the applicant advance any other reason, such as his race, nationality, or religion, in her written or oral claims that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.

CONCLUSION

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.5J(2). Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

2. The Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. There is no suggestion that the applicant satisfies s.36(2) based on being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Jason Pennell
Senior Member

Annexure ‘A’

1. Gangs, Cartels and Organized Criminal Groups[121]

[121] Responses to Information Requests - Immigration and Refugee Board of Canada dated 9 November 2021; http//: irb.gc.ca/en/country-information/rir/Pages/index.aspx

Sources indicate that when compared with other Latin American countries (Full Professor 14 Apr. 2021; InSight Crime 3 June 2020; US 10 Mar. 2020), Chile has "lower rates of criminality" (Full Professor 14 Apr. 2021) or has "one of the lowest homicide rates" (Insight Crime 3 June 2020) or is "moderately safe, with comparatively less violent crime" (US 10 Mar. 2020). According to statistics provided by Chile's Carabineros [1] and Investigative Police (Policía de Investigaciones, PDI) [2] and presented by the Centre for the Study and Analysis of Crime (Centro de Estudios y Análisis del Delito, CEAD), there were 4.6 homicides per 100,000 inhabitants in 2020, compared to 3.6 in 2019, and 3.5 in both 2018 and 2017 (Chile 2020).

According to a 2020 report by the Observatory of Drug Trafficking (Observatorio del Narcotráfico), which is a part of the Specialized Unit for Illicit Trafficking in Narcotics and Psychotropic Substances (Unidad Especializada en Tráfico Ilícito de Estupefacientes y Sustancias Sicotrópicas) of Chile's National Public Prosecutor's Office (Fiscalía de Chile or Ministerio Público), there is [translation] "an upward trend" in criminal complaints and seizures of drugs, money and vehicles (Chile May 2020, 71). In an interview with the Research Directorate, a full professor at the University of Santiago de Chile (Universidad de Santiago de Chile) who has conducted research on crime in Chile, indicated that, "in general," Chile has seen a decrease in criminal activity in the past five years, with a reduction in crimes such as burglary and theft; however, there is a "more evident presence of groups with links to drug trafficking," which is tied to a rising "percentage of people with problematic consumption of drugs" and increased demand for drugs (Full Professor 14 Apr. 2021).

The Full Professor noted that when compared with Colombia, Mexico or Central America, the Chilean criminal situation is completely different. There is no national drug trafficking cartel, nor a war between cartels and police. What [Chile] do[es] have is an increasing presence of highly localized gangs who have specific territorial control in some neighbourhoods, especially in poor neighbourhoods, who are linked to drug trafficking. (Full Professor 14 Apr. 2021)

In a telephone interview with the Research Directorate, the Executive Director of Fundación Chile 21 (Chile 21), a Chile-based think tank whose focus areas include security issues (Chile 21 n.d.), similarly stated that no criminal groups control large territories in Chile (Executive Director 20 Apr. 2021). The same source explained that there are "micro-organizations" operating in "smaller territories" and that there are more gangs (bandas) than cartels (Executive Director 20 Apr. 2021).

1.1 Areas of Influence

The Executive Director of Chile 21 indicated that criminal organizations are located "especially" in the Santiago Metropolitan Region and in northern Chile, including in the Arica, Antofagasta and Tarapacá regions (Executive Director 20 Apr. 2021). The 2020 Observatory of Drug Trafficking report indicates that the northern regions of Antofagasta and Tarapacá have high levels of drug seizures, while the Santiago Metropolitan and Valparaíso regions have the [translation] "most" money and vehicle seizures, as well as arrests and convictions; criminal groups are also "concentrated" in the Santiago Metropolitan and Valparaíso regions (Chile May 2020, 71-72). According to the Full Professor, the government designated "30 or 33" neighbourhoods with "evident" drug trafficking activities as "high risk"; these neighbourhoods are "mostly" located in the southern parts of Santiago de Chile, which are the "poorer" areas of the capital, and around the southern cities of Valparaíso and Concepción (Full Professor 14 Apr. 2021). The same source added that there is "increasing evidence" of drug trafficking activities in northern Chile, as these areas link to drug transit routes (Full Professor 14 Apr. 2021).

According to a report on drug trafficking in the Santiago Metropolitan Region published in April 2021 by the Centre for Investigative Journalism (Centro de Investigación Periodística, CIPER) [3] and the Centre for Journalistic Projects and Research (Centro de Investigación y Proyectos Periodísticos, CIP) [4], within 31 [translation] "communes" (comunas) in the Santiago Metropolitan Region, there were 174 "occupied zones" (zonas ocupadas), defined as areas where residents live "almost on the margins of state action, without police protection, in an environment with a high level of violence and overcrowding" and limited access to emergency and essential services (CIPER and CIP 20 Apr. 2021). According to the same source, this number has [translation] "doubled" since 2009, when CIPER identified 80 occupied zones (CIPER and CIP 20 Apr. 2021). The report indicates that there were 1,012,000 residents living in those areas out of a total population of 6.5 million in the Metropolitan Region based on the 2017 census (CIPER and CIP 20 Apr. 2021). The CIPER and CIP report notes that in 2012 there were three [translation] "macro-zones," defined as occupied zones that have expanded into neighbouring villages or towns and that in some cases cover "an entire neighbourhood," located in Bajos de Mena in the commune of Puente Alto, San Luis in the commune of Quilicura and Santo Tomás in the commune of La Pintana (CIPER and CIP 20 Apr. 2021). The same source reports that as of April 2021, the macro-zones have extended into seven other communes: San Joaquín, Maipú, Cerro Navia, Pudahuel, La Florida, Recoleta and El Bosque (CIPER and CIP 20 Apr. 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

According to the Full Professor, gangs are "highly localized" and "not capable of moving" to another area; none of the organizations "have regional or national capacity," nor do they have "influence outside of [their] neighbourhood" (Full Professor 14 Apr. 2021). The Executive Director of Chile 21 stated that "in general" gangs have influence over "smaller" territories, but there are regions where drug trafficking has a "fairly big" influence (Executive Director 20 Apr. 2021).

1.2 Levels of Violence from Gangs, Cartels and Organized Crime Groups by Region

The Executive Director of Chile 21 stated that most towns and cities are "pretty safe" and further noted that, while there are unsafe neighbourhoods, there are also safe areas in most cities (Executive Director 20 Apr. 2021). The Full Professor indicated that violent activities are "generally territorially concentrated" in high-risk neighbourhoods (Full Professor 14 Apr. 2021)….……..................

1.3 Alliance

Sources indicate that criminal groups have alliances with international [or regional (InSight Crime 3 June 2020)] groups to facilitate the transit of drugs (InSight Crime 3 June 2020; Full Professor 14 Apr. 2021; Executive Director 20 Apr. 2021). The Executive Director of Chile 21 noted that while there is increasing local capacity to produce drugs, criminal groups have relationships with cartels from cocaine-producing countries, such as Colombia, Mexico and Peru, as well as criminal groups from marijuana-producing countries, such as Paraguay (Executive Director 20 Apr. 2021). In an interview with InSight Crime, a non-profit think tank and media organization that focuses on organized crime in Latin American and the Caribbean (InSight Crime n.d.), the Executive Director of the Chilean policy think tank AthenaLab stated that connections with international groups are formed for "very specific operations" and further indicated that they are "not permanent" (InSight Crime 3 June 2020). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

The Executive Director of Chile 21 indicated that there are alliances between local groups since drug cartel activities are "mainly divided," leading to "small-scale" cartels and organizations working with each other (Executive Director 20 Apr. 2021). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

1.4 Presence of Colombian Drug Cartels

The Full Professor indicated that there is "no real evidence" in police or judicial reports or "official evidence" that points to the presence of Colombian drug cartels in Chile, only "anecdotal" evidence (Full Professor 14 Apr. 2021). The Executive Director of Chile 21 stated that there are international cartels, such as Colombian and Paraguayan cartels, operating in Chile (Executive Director 20 Apr. 2021). The same source further indicated that while there are connections between Chilean and foreign nationals, these are not expressed through a large cartel or organization (Executive Director 20 Apr. 2021). InSight Crime's profile on Chile indicates that criminal organizations based in Colombia, Peru, Bolivia and "other nearby countries" have been involved in illegal activities in Chile (InSight Crime [2018]). A September 2019 InSight Crime article reports that a leader of the Colombian La Terraza gang was arrested for operating a loansharking network in Chile (InSight Crime 2 Sept. 2019). A 6 December 2019 InSight Crime article notes that the Chilean navy arrested six Colombian nationals on a boat containing 4.2 tons of marijuana off the coast of O'Higgins in the south of Chile and further observes that Chile is a "destination of choice for Colombia's marijuana smugglers" (InSight Crime 6 Dec. 2019).

The Full Professor noted that there were two court cases last year that involved Colombian hit men who were hired to kill in Chile, but it was a "specific" and not a "generalized" situation (Full Professor 14 Apr. 2021). Further and corroborating information on whether Colombian cartels operating in Chile could pose a threat to individuals could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

1.5 COVID-19

In an interview for a 4 December 2020 InSight Crime article, the Executive Director of AthenaLab stated that criminal groups used COVID-19 as an opportunity to expand drug trafficking activities and further noted that this expansion has brought "greater levels of micro-trafficking and violence" (InSight Crime 4 Dec. 2020). An article by Agencia EFE (EFE), a Spain-based news agency, notes that drug trafficking in Chile has expanded into areas where "the state does not reach or has been slow in reaching," and that in the face of COVID-19 and an economic crisis, "'buying loyalties'" has become "much more common" in those areas (EFE 2 Feb. 2021). The same article cites the Director of the Specialized Unit for Illicit Trafficking in Narcotics and Psychotropic Substances as stating that criminal groups have bought food and other goods for vulnerable individuals during the pandemic (EFE 2 Feb. 2021). The Executive Director of Chile 21 indicated that while "some" criminal activities, such as homicide, have increased, "most" crime has decreased; however, this is not an indication that there is "less criminal activity," but that there are more restrictions, such as curfews and that people "might be less likely" to report crime (Executive Director 20 Apr. 2021). The EFE article notes that there were "more than 700" homicides in 2020 across Chile, an increase of 33.6 percent from 2019; in southern Santiago, the homicide rate rose by 80 percent, which authorities attribute "directly" to local drug trafficking (EFE 2 Feb. 2021).

2. State Protection
2.1 Police

As cited in the June 2020 InSight Crime article, the Executive Director of AthenaLab stated that the reason local criminal groups have not "grown significantly" is "due to the strength of the Chilean institutions, especially the police" (InSight Crime 3 June 2020). The 2020 Crime and Safety Report of the US Overseas Security Advisory Council (OSAC) indicates that the Carabineros are "one of the most professional and well-trained, and least corrupt, police forces in Latin America" (US 10 Mar. 2020). The Full Professor indicated that individuals in Chile will not be ignored by the police if they report being targeted by an organization; however, there is no witness protection program or other government organization that can offer long-term protection (Full Professor 14 Apr. 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

According to the Executive Director of Chile 21, there have been high-profile cases of police corruption, as well as human rights violations and police brutality, and the public perception of police and police action related to drug activities in the last year has been "very negative," increasingly so over time; consequently, people are losing trust in the police, including the trust to file a police report if they have been victimized (Executive Director 20 Apr. 2021). An annual report covering the events of 2020 by Human Rights Watch (HRW) indicates that the Carabineros used "excessive force" during protests in 2019 and "thousands" were injured or "reported serious abuses in detention" (HRW 13 Jan. 2021). The same source indicates that as of January 2021, a unit of the Ministry of Interior has been assigned to implement recommendations to reform the Carabineros issued by a Senate commission (HRW 13 Jan. 2021).

The Full Professor stated that the effectiveness of police protection depends on the individual in need of protection; members of "more vulnerable groups," such as residents of "poor neighbourhoods," irregular migrants and young men, are "basically harassed by police due to suspicion of criminal involvement" (Full Professor 14 Apr. 2021). The same source added that there are some neighbourhoods where there is a "clear lack of police activity" (Full Professor 14 Apr. 2021). The CIPER and CIP report notes that [translation] "drug violence and police neglect" have become the norm for the residents of occupied zones (CIPER and CIP 20 Apr. 2021). The same report further states that the Carabineros stationed in occupied zones are criticized for being [translation] "incompeten[t], indifferen[t] and, in some cases, corrup[t]" (CIPER and CIP 20 Apr. 2021).

2.1.1 Connections Between Police and Drug Cartels

According to the Full Professor, there has been no police investigation into police ties with international criminal organizations (Full Professor 14 Apr. 2021). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

The Full Professor indicated that there is increasing evidence of interaction between police officers and local criminal organizations and stated that this interaction "opens the window for impunity" at the local level; however, there is no "institutional corruption scheme" (Full Professor 14 Apr. 2021). The same source further observes that the "main threat" is not that police officers are working for criminal organizations but rather that police presence or activity is "absent" from some neighbourhoods (Full Professor 14 Apr. 2021). The Executive Director stated that there have been "a lot of cases" of drug-related corruption; however, Chile 21 has been unable to obtain information about corruption cases from the police (Executive Director 20 Apr. 2021). A March 2021 report on drug-related police corruption by CIPER indicates that, nationwide, according to a review of media sources in the absence of available official information, there were 21 cases of drug-related corruption and 66 police officers investigated between 2010 and 2020, with the [translation] "most" cases in 2018, 2019 and 2020 (CIPER 3 Mar. 2021). Based on public records and internal government documents, the same report states that the police stations with the [translation] "highest number of officials involved in criminal acts" were the 41st precinct in La Pintana, the 49th precinct in Quilicura, the 50th precinct in San Joaquín and the 58th precinct in Estación Central, all located in the Santiago Metropolitan Region (CIPER 3 Mar. 2021).

2.2 Judiciary

According to the Executive Director of Chile 21, the judiciary has a "better reputation" than the police, but there is a "general" lack of trust in state institutions (Executive Director 20 Apr. 2021). The Full Professor stated that judicial corruption is "the exception, not the norm" (Full Professor 14 Apr. 2021). The same source indicated that the effectiveness of the judiciary "depends on who [you] are"; criminal prosecution is focused on individual drug traffickers, rather than the whole organization, which is "not effective when only the low-level traffickers are taken out" (Full Professor 14 Apr. 2021). The Full Professor further observed that the authorities do not have a "smart" money laundering investigative process (Full Professor 14 Apr. 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…