2016302 (Refugee)

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).