2202829 (Refugee)

2202829 (Refugee) [2024] AATA 4265 (17 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Melany Ramos (MARN: 9896522)
CASE NUMBER:  2202829
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Rosa Gagliardi
DATE:17 September 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 17 September 2024 at 4:30pm
CATCHWORDS
REFUGEE – protection visa – Colombia – political opinion – supporter of opposition parties and leader – student, social media and public activism – threats by government-supporting paramilitary/criminal groups – consistent and convincing evidence, including detailed political knowledge, statement from leader and psychologist’s report for wife and child – country information – leader now president of country – paramilitary groups still active – real chance of persecution – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 14 February 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Colombia (a matter the Tribunal accepts) applied for the visas on 3 June 2021. The delegate refused to grant the visas on the basis that the applicants had not fully supported their claims.
The applicants appeared before the Tribunal On 1 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the second named visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
The applicants were represented in relation to the review.
NB: the Tribunal may use the term “the applicant” to denote “the first-named visa applicant” for ease of reference. This does not diminish the fact that the second-named visa applicant has claims of her own.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, 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).
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.
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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants have a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicants returned to Colombia now or in the reasonably foreseeable future, they would be persecuted for one of those reasons, and whether they would suffer serious harm. Alternatively, the Tribunal must assess whether the applicant meets the complementary protection criteria.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims at the time of application
In a statement to the Department dated 16 November 2021, the first-named visa applicant set out why he feared returning to Colombia:
I have been persecuted for my political opinion, active and current support for left-wing political parties and specifically for being a follower of current Senator of the Republic of Colombia Gustavo PETRO URREGO of the “Colombia Humana [Humane Colombia] Political party, in which I actively participate.
Since I was a young student, in [Year] I finished my senior secondary certificate of education studies at the [Institute] in the city of Barranquilla, where the topic of politics drew a lot of my attention given that I participated in different marches and meetings where discussions were held on current politics and issues of great importance in the country, economic, education and health issues of our country, Colombia.
In the year 2003, I went to the city of Cali for the purpose of studying a professional career and getting a good job; I worked for a year in a company named xxx, then I became unemployed and it was a bit difficult to find work; I did my compulsory military service [where] I was for one (1) year from [July] 2005 to 2006, doing community service since it is a requirement to have a military card when applying for a job.
In September 2006, I was employed at xxx, in this same year I began to follow
Mr PETRO URREGO when he was a militant member of the Democratic Pole Party, for his commitment to fight against the corruption that afflict the Colombian government where he denounced “Parapolitics” where several State officials were involved with illegal armed groups of the Colombian right-wing using the Paramilitaries as their illegal armed wing to carry out murders against any person who was against their interests.
Our leader denounced the politicians of the right-wing parties who obtained positions in the government in exchange for the diversion of State funds for the financing of the said illegal armed groups of the paramilitaries; this way these paramilitaries controlled more land in the country and raided the civilian population to instil fear through massacres, forced displacements and collective murders and in this way gave away public positions in local councils, state governments and to federal members of Congress of the Republic [of Colombia].
On 6 March 2008, the nationwide march Honouring the Victims of paramilitarism as well as the Victims of State Crime was organised, led by Ivan CEPEDA CASTRO from the UP. Several states of Colombia joined this march and even internationally several groups marched to honour the victims of the paramilitaries.
In the year 2009, I started studying [Subject] at [University 1], I graduated in 2014, there I met a group of students, we had the same political affinity and we began to do virtual political activism in social networks through the Orange Movement – Castro Chavista (followers of Fidel Castro and Hugo Chavez) page and face-to-face in their area, in my case area x of where I carried out my political propaganda work for our leader Gustavo Petro.
I received many death threats if I did not stop making propaganda for the leader, Petro, they sent me written threats to my electronic mail which I did take into account but I thought that nothing would happen because the political propaganda was virtual and they did not know me in person, and so in this way I hid from the threats, but did continue doing politics with leader Gustavo Petro.
I was providing support to Mr Gustavo PETRO URREGO in the Presidential elections that were held in 2010 although the objective of winning the elections was not achieved, we continued to support him in 2011, when he ran as mayor of Bogota where he emerged victorious in the mayor elections.
In the year 2017, I became a militant of the “Colombia Humana” Party doing political activities meetings with the community. From these political activities onwards I did show myself in person, I received telephone threats [saying] that I should stop supporting “Petro, the guerilla” otherwise they would kill me. That was how they located me getting to know my family, home and workplace.
In December 2017, my wife and daughter were walking down the street when two men on motorcycles got off and threatened her with death, they were threatened with death by Los Rastrojas paramilitary group, which operates together with other paramilitary groups in Valle del Cauca and Antioquia such as Metro Bloc, “Las Aguilas Negras” [The Black Eagles]; this was a direct threat to my wife who they confronted in person and told her that we had to leave the country otherwise they would kill them both because I continued supporting “Petro, the guerilla”, the threat made to my wife was direct and emphatic, we had no other choice but to seek help to leave the country.
I remembered I had contacts to process a Visa for Australia, and that was how after obtaining some money we managed to apply for student visas to leave Colombia, we did this at the end of 2017 and beginning of 2018; the visa was granted in March 2018 and we arrived in Australia in April 2018, with our daughter [the third applicant].
Before leaving Colombia, the leaders of the Left-wing parties were preparing an Interparty consultation, I participated in this consultation providing information to the community through the Orange virtual movement – informing about transport logistics and the objectives of the consultation.
On Sunday 11 March 2018, the Interparty consultation was held, where forces from several left-wing political parties came together so as to elect a single candidate to be the representative in the electoral elections for president; our leader Gustavo Petro competed with Carlos Caicedo, the consultation was called “Social Inclusion for Peace”, where
Mr Gustavo Petro prevailed with more than 290,000 votes out of 500,000 votes.
After the consultation, I reported the results through the Orange virtual services; immediately upon leaving my work, two men on a motorcycle threatened me saying they would kill my wife and daughter because I insisted on supporting “Petro, the guerilla”, they showed me their weapons as if they were going to shoot me but I managed to run and hide; I told my wife that she had to leave the house with [the third applicant]. We went into hiding where some relatives outside Cali lived; we were very blessed that the visas were approved in March 2018 and we were informed that we could leave the country.
…
I cannot return to Colombia because I have been declared a military target of the xxx paramilitaries, if I return to my family and I are in danger of death…
In additional submissions the applicant submitted to the department information about the structure of Colombia Humana and advised that Mr Petro Gustavo only issued membership letters (rather than membership cards), because at that time Mr Gustavo Petro was still only a Presidential candidate. The applicant had submitted a copy of a letter from Mr Gustavo Petro certifying the applicant was a member of the Party and the applicant emphasised that the letter was not fraudulent as Mr Gustavo Petro had been prepared to support many comrades in danger in Canada and other countries because he too experienced similar persecution.
The letter by Gustavo Petro is on Colombia Humana letterhead and was signed [in] November 2021, Bogota, as the President of that movement. It certifies that the applicant was a militant and actively participated in the “Colombia Humana” political party since [2017] to the current date, and worked as a [volunteer].
The applicant participated in [a Workgroup] and he has submitted minutes of the meetings of such workgroup.
The applicant also clarified his role in Colombia Humana stating that from 2017 to February 2018, they held meetings for political purposes and conducted civic action providing instructions on how to properly fill out voting forms to reduce the loss of votes due to annulments.
The applicant also submitted evidence of the work he conducted virtually discussing elections and that he intended to apply to be a polling station officer for an electoral officer. The applicant has claimed he did this work from Australia.
In addition, the applicant sent various communications abusing the applicant and his fellow [Social media] users regarding his involvement with Naranja Castrochavista.
Other evidence involves the posting by the applicant of an article relating to Mr Petro Gustavo accepting to form a coalition, dated 26 July 2020, and other postings expressing support for Mr Gustavo Petro.
Evidence with the Tribunal
The Tribunal found that the oral evidence submitted at hearing by both the adult applicants mirrored that provided to the Department at interview (the Tribunal heard the interview in full). Further, the applicant used the hearing to clarify some misunderstanding that may have arisen in the interview and provided details about his claimed political activities.
At hearing, the Tribunal asked the second-named visa applicant whether she had seen a counsellor or psychologist in Colombia about the threats she and the first-named visa applicant claims were directed at her from men carrying arms on motorbikes. The second-named applicant did not hesitate and stated she had and immediately when asked, she confirmed she could provide reports from the relevant psychologist who had seen her during her husband’s political activities and during the threat she received from who she claims were members of a paramilitary group.
The Tribunal has sighted a psychologist’s report by Psychologist [Ms A], [University 2], Cali, undated, regarding the mental health of the second named visa applicant and her daughter, the third-named visa applicant, providing address details, telephone number and a practising number for the psychologist. The Department did not have the benefit of these reports at the time it made its decision and the Tribunal only has them because it requested them.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The applicant spoke convincingly at hearing about the major events involving the threats he received as well as those received by his wife when she was out walking with their daughter.
The Tribunal at hearing raised with the applicant that he had in fact already been to Australia in 2017 and he confirmed this was the case but stated that at that time he had only come to visit a friend. The incident involving the applicant’s wife and child occurred in December 2017 and it was this threat together with that experienced by the first-named visa applicant, that compelled the applicants to leave their country.
The Department also raised concerns because the migration agent in her submission had referred to Black Eagles as having threatened to kill the applicant’s family, yet the applicant had referred to Los Rastrojos paramilitary having threatened his wife and child. The Tribunal has had reference, however, to the applicant’s own statement submitted at the time of review which indeed refers to Los Rastrojos paramilitary having confronted his wife and daughter, although as he explained at hearing the Black Eagles and Los Rastrojos paramilitary are associated. If the migration agent had misunderstood the applicant’s claim in terms of who specifically had threatened to harm his wife and daughter, the Tribunal does not consider this matter ought to be visited upon the applicant. The Tribunal therefore places no adverse weight on the identity of the members of the paramilitary who had threatened the applicant’s family as the applicant has been consistent all along in stating that it was the Los Rastrojos paramilitary involved in the incident on motorbikes where they confronted the applicant’s wife and child.

In addition, there appeared to be a slight inconsistency with the applicant’s statement that when he was threatened by armed men, he ran to his office for safety whereas he had told the Department that he fled amongst the crowd. The applicant clarified that there was no inconsistency because in effect he ran into the crowd and later, when it was safe, he retreated to his office. The Tribunal is prepared, in light of other compelling evidence submitted, to accept this explanation.
Like the Department, however, the Tribunal had concerns that the letter from Mr Gustavo Petro was not genuine as it seemed implausible that the applicant could have obtained a letter from someone with such a high profile, as the current president of Colombia since

7 August 2022, who became the first left-wing president in the recent history of Colombia.[1]
[1] Gustavo Petro, President of Colombia, Britannica, Gustavo Petro | M19, Political Party, & Presidency | Britannica.
The Tribunal initially also had concerns that the applicant may have simply copied the signature of the current President from a Wikipedia entry that contains his signature and is publicly available.[2]
[2] Gustavo Petro - Wikipedia
It is important to note, however, that the letter submitted to the Tribunal as evidence of the applicant’s allegiance and support for the then President of Humana was signed in 2021, and at that stage Gustavo Petro was not the President of Colombia, being only and at that stage, the President of Humana Colombia as well as having affiliations with other political parties, even though he was a presidential candidate (one of several of his presidential candidacies).[3] The Tribunal finds that it is not implausible that when the letter was issued, Gustavo Petro had been prepared to verify the applicant was a member of Colombia Humana as a supporter and as a [volunteer].
[3] ‘Colombia Humana Activists’, Minutes of the Founding Assembly of Colombia Human Held in the Paza De Bolivar in the City of Bogota on 22 September 2018. Colombia Humana activists – For a more humane and nature-friendly Colombia (colombiahumana-com-co.translate.goog) (Translated version).
Secondly, the Tribunal does not have before it probative evidence that this letter, or that indeed any of the other supporting documentation points to them having all been designated by some scientific process as being “non-genuine”. No forensic analysis has been undertaken to show that the letter from Gustavo Petro in support of the applicant is non-genuine. In light of the other information submitted by the applicant the Tribunal is prepared to accept that it was indeed issued by Gustavo Petro who in 2021 was not President of the country of Colombia, and issued letters to those who supported him as a gesture of assistance given his own history of having been subject of threats to his life, fleeing Colombia in 1994 to Brussels, where he remained until 1996.[4]
[4] Gustavo Petro, President of Colombia, Britannica, Gustavo Petro | M19, Political Party, & Presidency | Britannica.
The Tribunal’s findings that the applicant was a supporter and member of Colombia Humana is supported by the fact that at hearing the applicant spoke confidently and fulsomely about the movement’s left-wing agenda and had a detailed knowledge of the activities of Gustavo Petro, including his term as mayor of Bogota from 2012-2015.[5]
[5] Ibid.
More compelling still is the psychologist’s report for the second and third named visa applicants. The Tribunal was struck by the fact that when it asked whether the second named visa applicant could provide a psychologist’s report confirming the events that had occurred to her family, she did not hesitate and stated she would be able to provide it. Had there been any contrivance about this matter the Tribunal considers the second named visa applicant would have hesitated.
The significance of the psychologist’s reports is that they were not obtained retrospectively but provide evidence that the second named visa applicant was receiving contemporaneous treatment for psychological issues in Colombia and according to the report submitted to the Tribunal, she had started treatment on 9 July 2018, “starting with 2 sessions per month for 3 months from 2020 to 2023, with 2 online sessions per month for 3 months”. Clearly, the applicant had been receiving treatment online from Australia. The second named applicant had 24 sessions with the relevant psychologist due to “nerves and anxiety after experiencing an aggressive incident where she was approached and threatened by strangers on the street while in the company of her only daughter…”.
The translated psychologist report states that, “The patient mentions that the threat was related to political matters, where her husband participated openly and decisively in a political campaign during 2017-2018”, and that her husband had also been approached and violently intimidated with firearms. The course of the second-named applicant’s treatment is reflected in her narrative to the psychologist, which is consistent with the applicants’ statements at hearing:
[The second applicant] sought online consultation for the first time due to a situation she described as vulnerable, distressing and extremely dangerous. Upon accessing the consultation, she appeared uneasy, and as she began her account, she started to cry but managed to console herself. She reported that in the past months, she had been threatened with death because her husband was actively involved in a political campaign. She stated that everything escalated when she was confronted by men who intimidated her with vulgar language, telling her, your husband needs to stop what he’s doing, leave it alone, or you’ll both die”. However she mentioned that as the days passed, she calmed down and continued her life with some anxiety, but nothing that prevented her from carrying on with her activities. Yet, months later, her husband was confronted by armed men, and from that moment, she experienced significant changes in her feelings and emotions – extreme anxiety, fear, and frustration. [The second applicant] recounted the entire event, and during her conversation, her body posture remained hunched, she avoided eye contact, and she constantly sobbed. When asked about her feelings at that moment, she responded, “Sadness, anxiety, and fear. I don’t feel at ease, I don’t want to leave the house, I don’t want my husband to go to work, but we have to.”
…
Conclusion: The episodes that triggered [the second applicant]’s anxiety disorder significantly affected her daily life. She had to make radical decisions regarding her family, career and lifestyle, and she tried to handle them in the best way possible. She sought help in time, and with her own means and resources, she was able to manage her treatment.
The Tribunal has had regard to the third-named visa applicant’s (aged [Age] years) psychological report. Her sessions started when she was [Age] years old. The report refers to the child feeling nervous when she heard the sound of motorcycles. “When they pass by on the street, and when one comes close, the girl immediately raises her arms for the person with her to pick up her, a clear sign of seeking protection”. The second-named applicant sought assistance for her daughter, [the third-named visa applicant], because the child was having difficulty adapting to her new environment as she missed her grandparents and cousins, though in subsequent sessions the child had started to adapt and had started pre-school.
The second-named visa applicant had had to seek counselling again for [the third applicant] after the hearing. Both the children were brought into the hearing room to enable them to be with their parents as they were too young to leave unattended outside the hearing room. The child understood the gist of the claims being made by her mother and began to cry in the hearing and later expressed fear and anxiety. Her mother had never told [the third applicant] why they had left Colombia. The psychologist suggested that the family undergo therapy together so that slowly they can reveal to [the third applicant] the reasons they left their home country.
The Tribunal has found the reports realistic and consistent largely with the applicants’ accounts to the Department, the Tribunal and the psychologist. In examining the reports carefully, the Tribunal has no reason to doubt their authenticity.
Real chance test
Having accepted that the events claimed by the applicants, that they were targeted by Los Rastrojos for the first-named visa applicant’s involvement in the political campaigns of Gustavo Petro in Colombia, the Tribunal is required to assess whether there is a real chance that on return to Colombia the applicants due to their political profiles or other characteristics under s.5J of the Migration Act, face a real chance of persecution now or in the reasonably foreseeable future. While past persecution might indicate the likelihood of future persecution in an applicant’s home country, this is not always the case if country information has shifted and conditions in a country have significantly improved, for example.
The country information shows that Los Rastrojos emerged in the early 2000s under one of the leaders of the Norte del Valle drug cartel and are described as a “transnational crime syndicate” and that it operates in the Valle del Cauca (Buenaventura, Cali and Jamundi), Cali being the applicant’s home area.[6]
[6] Canada: Immigration and Refugee Board of Canada, Colombia: The presence and activities of Los Rastrojos, including in Buenaventura; information on their relationship with the Gaitanist Self-Defense Forces of Colombia (Autodefensas Gaitanistas de Colombia, AGC) [also known as Gulf Clan (Clan del Golfo) or Úsuga Clan (Clan Úsuga), and formerly known as Los Urabeños]; state response (2017-April 2018), 17 April 2018, COL106086.E, available at:
There are also reports that the growing influence of the Los Rastrojos in Buenaventura exacerbated the security problem in the city, with indications that social leaders in Buenaventura are threatened by paramilitaries for advocating and promoting “humanitarian zones” and that social leaders living within a humanitarian zone cannot leave the premises as they have been threatened by local criminal groups.[7]
[7] Ibid.
Los Rastrojos is not, however, simply a criminal group but has ideological opposition to human rights activists and others with progressive outlooks who threaten the hegemony between politicians and paramilitary groups. Amnesty International in a statement issued in April 2013, referred to paramilitary group Los Rastrojos – Commandos Urbanos having sent an email with death threats, naming dozens of individuals including many trade union members and human rights defenders, as well as dozens of organisations and trade unions. The individuals and organizations named were declared military targets and accused of having links to guerrilla forces.[8] The report further states:
During Colombia’s long-running conflict between the left-wing guerrillas and the armed forces, which at times operate in collusion with paramilitaries, members of human rights organizations, trade unions and other social organizations have often been threatened, subjected to enforced disappearance or killed. Colombia’s paramilitary groups supposedly demobilized in a government-sponsored process that began in 2003, but it is clear from the threats against human rights organizations and trade unions that they are still operating.
Colombia has one of the highest rates of killings of trade unionists in the world. Trade unionists face repeated death threats or are killed during labour disputes and during campaigns for improvement of their pay and working conditions. They have been repeatedly threatened and many have been extrajudicially executed or subjected to enforced disappearance by paramilitaries either acting alone or in collusion with the security forces. In addition, the security forces and paramilitaries often accuse trade unionists of being guerrilla sympathizers or auxiliaries…[9]
[8] ‘URGENT ACTION, Trade unionists in the mining industry receive more death threats’, Amnesty International, 4 April 2013, Colombia: Further Information: Trade unionists receive more death threats (amnesty.org).
[9] ‘URGENT ACTION, Trade unionists in the mining industry receive more death threats’, Amnesty International, 4 April 2013, Colombia: Further Information: Trade unionists receive more death threats (amnesty.org).
In a later statement dated 8 May 2014, Amnesty International again expressed concerns that paramilitaries were threatening human rights activists accusing such persons of organizing peasant farmer demonstrations and of being supported by guerrilla groups.[10]
[10] ‘URGENT ACTION Paramilitaries threaten human rights activists’, 8 May 2014, Amnesty International, Colombia: Paramilitaries threaten human rights activists (amnesty.org).
More recently, it is reported that despite Los Rastrojos having experienced some setbacks when a key figure surrendered to the US authorities and the founder of the group, Diego Rastrojo himself was arrested in Venezuela, remnants of the group have maintained control over crucial exit points for cocaine and continue their extra judicial activities.[11] Hence, while Los Rastrojo has had a retreat there are other paramilitary groups taking over their activities and expanding, allegedly continuing to use dirty war tactics as a way of resisting the peace agreements. The neo-paramilitaries are characterised by their far-right wing connections and resistance against any human rights activities.[12] And there are reports that five years after Colombia’s peace deal, militias continue to cause havoc due to government bungling and political chaos.[13]
[11] ‘Los Rastrojos Comandos Urbanos, Colombia reports, 16 September 2019, Rastrojos | Colombia Reports.
[12] ‘Annex 1 – The characteristics of neo-paramilitaries’, Office of the High Commissioner for Human Rights’,
[13] ‘Five years after Colombia’s peace deal, militias continue to cause havoc’, The Americas, Still Armed Still Dangerous, The Economist, 27 November 2021, Five years after Colombia’s peace deal, militias continue to cause havoc (economist.com).
The Tribunal accepts that the applicant has been involved in socialist agendas such as those espoused by Gustavo Petro and that it is this left-wing agenda that attracted the applicant to the now President of Colombia. The applicant has given evidence of his open activities online and in person to support the underprivileged and of taking a stand against corruption which permitted the paramilitaries to thrive.
Colombia Humana was denied legal status, having a high-profile figure such as Petro Gustavo meant that its aims against paramilitarism and corruption were well known.[14] In an article dated 15 December 2020, Petro Gustavo commented that the massive deterioration of the Attorney General’s Office reflected the “deep degradation of the country’s traditional political class”.[15] Petro wrote that large national budgets were approved to create, develop, and strengthen the prosecutor’s office, in the fight against organised crime but this power became, precisely, “the best instrument of big-scale organized crime: the political mafias”.[16] And:
[14] ‘Partyless Petro’s Colombia Humana movement denied legal status’, 30 August 2018, the Bogota Post,
[15]
[16] Ibid.
At the office of the Attorney General under Osorio, one of the most conspicuous episodes of the prosecution’s capture by organized crime occurred. Osorio put the Office at the service of paramilitarism. The most famous cases were those of Antioquia and Norte de Santander departments, the latter being strategic for Mancuso’s takeover of the Catatumbo region to export cocaine through the Gulf of Maracaibo.
All the prosecutors who fought against paramilitarism during Gomez Mendez’s Office were fired, many went into exile, some were killed…The paramilitaries owned the Attorney General’s office.
….
The infrastructure projects were not finished, it could not possibly be of quality and they were not what the country needed. There was no care in planning such large investments. What mattered was that the works were expensive, so that everybody could get their share….
…
Thus, the dream of peace in Colombia also evaporated…
…
And finally, and for now, from this massive deterioration of the Attorney General’s Office, which reflects the deep degradation of the country’s traditional political class, plunged in genocide, drug trafficking and gigantic theft of public resources, the power of the Attorney’s Office will be directed against the Colombia Humana party, seeking how to find evidence to prosecute it and prosecute me. They have been in that effort for eight years now.
….
They have unleashed an offensive against any official of the Bogota Humana that they find in their archies, dreaming of intimidating the author of these pages. Let them search and search![17]
[17]
This piece by Gustavo Petro was written as part of his bid for re-election, however, it does indicate that anyone associated with Colombia Humana or Gustavo Petro faces a real chance of persecution now or in the reasonably foreseeable future if returned to Colombia. The Tribunal finds that the danger is still live because of the applicant’s open support for Gustavo Petro who has attempted to implement progressive ideals in terms of the role of women in society and who champions those who are not part of the elite.
The Tribunal finds that the real chance of serious harm applies to all the applicant’s equally given the first-named visa applicant’s profile as someone against the paramilitaries and on account of his political opinion.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Rosa Gagliardi

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

‘Colombia’s Attorney General’s Office is being devoured by corruption’, Gustavo Petro,
15 December 2020, OpenDemocracy, free thinking for the world, Colombia's Attorney General's Office is being devoured by corruption | openDemocracy.

‘Colombia’s Attorney General’s Office is being devoured by corruption’, Gustavo Petro,
15 December 2020, OpenDemocracy, free thinking for the world, Colombia's Attorney General's Office is being devoured by corruption | openDemocracy

[2024] AATA 4265

17 September 2024

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