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

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).
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).
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 2016302 (Refugee) [2022] AATA 1263
Case: [2022] AATA 1263
Decision Date: 30 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa, who feared harm upon return to Chile. The applicant had been coerced into participating in drug importation and subsequently cooperated with police, leading to a reduced sentence but also threats and abuse within prison. The core dispute revolved around whether the applicant met the criteria for a protection visa, specifically concerning complementary protection.

The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution or, alternatively, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Chile, the applicant faced a real risk of significant harm. This required the Tribunal to assess the availability and effectiveness of state protection in Chile, particularly in light of the applicant's cooperation with law enforcement and the potential for retribution from drug cartels.

The Tribunal's reasoning focused on the country information regarding the security situation in Chile, noting an increase in drug trafficking and associated violence, alongside reported institutional imbalances within the Chilean police force, including allegations of human rights abuses and corruption. While acknowledging that individuals reporting targeting by organisations would not be ignored, the Tribunal found that Chile lacked a formal witness protection program or other governmental organisations capable of providing long-term protection. Consequently, the Tribunal was satisfied that the applicant could not obtain effective protection from the Chilean state to mitigate the real risk of significant harm.

The Tribunal concluded that Australia had protection obligations towards the applicant under section 36(2)(aa) of the Migration Act 1958, finding a real risk of significant harm upon return to Chile due to the inability and unwillingness of the state to provide effective protection. Accordingly, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied the criterion under section 36(2)(aa).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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; ibidIts 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] ibidChile’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] ibidIn 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] ibidAs 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.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] ibidTherefore, 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 ActAccordingly, 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. 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. CONCLUSIONFor 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).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).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).DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.Jason PennellSenior MemberAnnexure ‘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.aspxSources 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 InfluenceThe 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 RegionThe 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 AllianceSources 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 CartelsThe 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-19In 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 Protection2.1 PoliceAs 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 CartelsAccording 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 JudiciaryAccording 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 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugeeFor 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 persecutionFor 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.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.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.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.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.In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measuresFor 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.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.…Protection visas – criteria provided for by this Act…A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

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