2203761 (Refugee)
[2025] ARTA 2047
•22 July 2025
2203761 (Refugee) [2025] ARTA 2047 (22 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2203761
Tribunal:General Member M Bailey
Date:22 July 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review
Statement made on 22 July 2025 at 5:44pm
CATCHWORDS
REFUGEE – protection visa – Colombia – political opinion – member of Liberal Party – threatened by paramilitaries to undertake unapproved civil works – fears harm for disobeying their orders – extortion – violently assaulted – declared a military target – inconsistencies in evidence – first Statutory Declaration refers only to verbal threats – family members not harmed – extended absence – paramilitary group has dissipated – generalised/random violence is prevalent – long delay in applying for Protection visa – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
1905696 [2019] AATA 4676
BBK15 v Minister for Immigration and Border Protection [2016] FCA 680
CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245; [2015] HCASL 114Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 4 March 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 31 May 2018. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The applicant lodged a review application with the former Administrative Appeals Tribunal (AAT) on 16 March 2022. A copy of the delegate’s refusal decision was provided as part of the review application.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal at the Brisbane Registry on 28 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
BACKGROUND
The applicant is [an age]-year-old male from Colombia. He arrived in Australia [in] October 2008 on a Student (subclass 570) visa and has not departed since that time.
The applicant provided various identity documents, including his Colombian passport, to the Department of Home Affairs (Department) in support of the protection visa application. The delegate accepted the applicant to be a citizen of Colombia. Based on the available evidence, I am satisfied the applicant is a citizen of Colombia, and that Colombia is his receiving country for the purposes of assessing his claims for protection.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicant was assisted by a registered migration agent in relation to the protection visa application. According to the application form, the applicant was born in Bogota. Between [year] and September 2008 he resided in Cartagena, Bolivar Department. His parents are both deceased. He has [siblings], all of whom reside in Colombia. He completed high school in Cartagena in [year] and undertook military service in [year]. Between [year] and [year], the applicant undertook various tertiary studies in [Area of study 1], completing a Bachelor of [Area of study 1] in [year]. He was employed in various [Occupation 1] roles in Cartagena from late 1997 until August 2008. As outlined in the delegate’s refusal decision, the applicant submitted various employment-related documents (untranslated versions and English translations).
The applicant’s protection claims were outlined in a written statement dated 14 May 2018 (First Statement). Relevant information from this statement is summarised below:
i.He cannot return to Colombia due to persecution and threats from paramilitary groups identified as ‘[Paramilitary group 1]’. He had to leave Colombia due to harassment and threats from this group between 2006 and 2008.
ii.In 2005 he was awarded a civil works contract with [Council 1] to build [Structure 1] in [Suburb 1]. While working on this project he was approached by armed men who identified themselves as [Paramilitary group 3]. They had been monitoring the works and knew everything about him and his family, including his military service. They demanded that he [make adjustments to] [Structure 1] as this would [deleted]. They suggested there would be repercussions if he did not obey. The applicant complied with these demands.
iii.In 2005 he secured another government contract with [Corporation 1] to construct [Structure 2] in the areas of [Towns 1 and 2]. These areas were classified as ‘red zones’ due to high levels of paramilitary and guerilla activity. During this project he was approached by armed paramilitary members and asked for his identification documents and those of his workers to verify any connections with guerilla/left-wing groups.
iv.He secured another government contract for a project which commenced in February 2006. This was a nine-month contract to [undertake work] on land owned by [a government body] in the areas of [Towns 3, 4 and 5]. The land was very close to [Landmark 1]. He was required to employ people living in those areas to [assist]. These people held left-wing views and were often targeted by the paramilitaries.
v.In July 2006 he was approached by [Paramilitary group 1] and ordered to build two ‘clandestine’ or camouflaged [Structure 3] on a section of the [land]. He told them he did not have the necessary staff, but they continued to harass him, coming every few days and threatening him and his family if he did not comply. He was able to delay commencing the work because of frequent rain. He stopped going to the worksite and looked for work in other areas. In September 2006 he secured [an Occupation 2] role with a private company, ‘[Company 1]’, which produced [goods]. This role enabled him to distance himself from the construction field.
vi.In February 2007 he was stopped by men on motorbikes who threatened him and his family if he did not comply with the demand to construct the [Structure 3]. He told them he would commence the work once the rain ceased. In May 2007 while walking in Cartagena he was stopped on the street by the same men who threatened to kill him if the [Structure 3] were not constructed. From that time, he worked from home and only went outside when necessary. He noticed male motorbike riders ‘prowling around’ his street block. He decided to leave Cartagena. In mid-June 2007 he and his wife moved to stay ‘in hiding’ with a friend in Santa Marta. The applicant made arrangements with [Company 1] for him to continue working with the company in Santa Marta to expand [business] in that city. He was able to work in Santa Marta, particularly in the area of [Town 6], until departing Colombia.
vii.His family, especially his father, knew that the applicant could not remain safely in Colombia. In mid-May 2008 the applicant and his wife started the process of applying for Student visas to Australia and departed Colombia in October 2008. His father told him he could not return to Colombia because of his failure to follow the orders of [Paramilitary group 1] which would not be forgiven or forgotten. He was unable to return to Colombia when his father passed away in August 2014 and his mother in April 2017. Paramilitary groups continue to be powerful in Colombia and he would still be in danger if he returns.
viii.In May 2017 his wife was granted a subclass 457 visa. In around October 2017 he applied to join her visa, however he and his wife have now separated. He has applied for a protection visa because he fears harm from the paramilitaries if he returns to Colombia. He believes the death threats that he received ‘continue to be latent up to this day’. His family tell him not to return as the paramilitaries are still looking for him and asking when he will return.
The applicant attended an interview with the delegate via videoconference on 11 November 2021. The interview was conducted with the assistance of an interpreter in the Spanish language and the applicant’s representative was in attendance. I have listened to an audio recording of the interview. Relevant evidence from that interview, as outlined in the delegate’s refusal decision, is summarised below:
i.Regarding the incident in 2005 in connection with the contract to build a [Structure 1], the applicant confirmed that he complied with the demands of the paramilitary group. He [made adjustments to] [Structure 1] and absorbed the additional costs himself. He confirmed that he was not subjected to any further threats or problems in connection with this project.
ii.Regarding the work contract in 2006 in the areas of [Towns 1 and 2], the applicant confirmed that he was not subject to any threats or demands from paramilitary groups in connection with this project. He completed this project without incident. However, [Paramilitary group 1] asked for his personal information including his name, identification and political affiliation.
iii.Regarding the work contract to [undertake work] near [Landmark 1], the applicant clarified that he was awarded this contract in February 2006 but work on the project did not commence until February 2007 due to bureaucratic delays. He stated that [Paramilitary group 1] approached him from July 2006, prior to work commencing on the project, regarding the construction of [Structure 3]. Due to the rainy season, he was able to defer complying with their demands. He eventually ended this contract without penalty, without [undertaking the work] or building the [Structure 3].
iv.The applicant confirmed that in June 2007 he and his wife moved to Santa Marta, which he estimated to be around two hours from Cartagena, because of the threats from [Paramilitary group 1]. Aside from a short stay in Bogota before departing for Australia, he remained in Santa Marta. He confirmed that he did not experience any problems from [Paramilitary group 1] after leaving Cartagena in June 2007.
v.Asked about the 10-year delay in applying for protection if he feared harm on arrival in Australia, the applicant stated that applying for a Student visa was the quickest way to leave Colombia. After arriving in Australia he wanted to put past events behind him. He added that he was not previously aware of a protection visa.
Following the interview, the applicant submitted a further statement dated 20 November 2021 (Second Statement) together with a Statutory Declaration dated 16 November 2021 from ‘[Friend A]’. Relevant additional information from the Second Statement is summarised below:
i.Regarding the February 2006 contract to [undertake work] near [Landmark 1], he explained that it was not possible for him to comply with the demands of [Paramilitary group 1]. Without the permission of ‘[Government body 1]’ to build the [Structure 3] he could have been investigated by the authorities. He was able to give excuses to [Paramilitary group 1] for not commencing construction of the [Structure 3] because the land had to be completely dry and there had been frequent heavy rain.
ii.At no time since arriving in Australia in 2008 was he aware that he could apply for a protection visa. He and his wife continued to apply for extensions of their Student visas to allow them to remain in Australia.
iii.In 2014, when his father was unwell, he was advised by colleagues and family to not return to Colombia because they had ‘heard threats’ against him. In 2016 when his mother passed away he was again advised by family and friends not to return. The applicant’s friend, [Friend A], has kept him informed ‘of the persecution’ against him.
iv.In 2018 he travelled to [Country 1] Embassy in Sydney to apply for a visa to visit a friend in [Country 1]. During this trip he was informed about the existence of a protection visa and given contact details of a registered migration agent.
v.His life is in danger in Colombia from paramilitaries who have declared him a ‘military objective’ because he did not comply with their orders. The power of paramilitary groups in Colombia has increased following the failure of the peace process with the ‘FARC guerillas’.[1]
[1] ‘FARC’ refers to the Revolutionary Armed Forces of Colombia
According to the Statutory Declaration of [Friend A], he is a close friend of the applicant since childhood. The applicant had to leave Colombia because of threats to his life by paramilitary organisations. [Friend A] has been told by people who reside in the [Town 3] neighbourhood that on several occasions they have been contacted by [Paramilitary group 1]. These people worked for the applicant in relation to a contract to [undertake work] in their neighbourhood. These people state that [Paramilitary group 1] continues to ask about the applicant and have stated that the threats against him remain. His failure to comply with the group’s demands is considered a ‘mockery against the paramilitary organisation’.
In refusing the application, the delegate did not accept that the applicant had been approached or threatened by any paramilitary group between 2005 and 2007 while undertaking construction projects in or around Cartagena. The delegate placed adverse weight on inconsistencies in the applicant’s evidence and the significant delay in applying for protection. The delegate was not satisfied that the applicant faced a real chance of harm from paramilitary groups on return to Colombia. In assessing the complementary protection criteria, the delegate acknowledged country information regarding the ongoing presence of paramilitary groups in Colombia following the signing of peace agreements in 2016 between the government and rebel groups. However, the delegate found the risk of harm from paramilitary groups to be faced by the population generally and not by the applicant personally.
Evidence before the Tribunal
Pre-hearing evidence
Prior to the Tribunal hearing, the applicant submitted a substantial volume of material, including copies of documents relating to his military service, professional qualifications in [Area of study 1] and work contracts relating to the three projects undertaken between 2005 and 2007 as referenced in his claims to the Department. Several letters from employers and friends in Australia attesting to the applicant’s good character were also submitted. In addition, the following new material was submitted:[2]
Medical evidence
i.Report from a medical clinic in Cartagena regarding a consultation with the applicant on 10 May 2007. The applicant reported being the victim of [an assault] and was stated to present with injuries consistent with [a violent attack]. The applicant was stated to have expressed that he does not wish to press any charges.
ii.Report dated 8 August 2007 from the same medical clinic in Cartagena relating to a ‘Medical evaluation subsequent to [assault]’. The report outlines the findings of a physical examination of the applicant which concludes that despite the assault, no significant physical problems are observed and no ‘additional interventions’ are required.
iii.Psychological assessment report dated 11 August 2007 from the same medical clinic in Cartagena, stating that the applicant reported suffering [an] assault in May 2007. This resulted in ‘minor injuries which are not irreparable’ and ‘emotional and psychological disturbances resulting from the trauma’. The report concludes that the applicant presents with symptoms consistent with Post-Traumatic Stress Disorder (PTSD) and recommends continuing therapy.
iv.Medical certificate issued by a Neurosurgeon in Cartagena stating that the applicant was diagnosed on 8 June 2008 with [Medical condition 1] for which he underwent surgery [in] June 2008. He requires six months of sick leave from the date of surgery.
v.Several photos depicting scars on the applicant’s [body].
vi.Report dated 15 April 2025 from ‘Ms AC’, a psychologist based in Queensland, stating that the applicant has to date attended three sessions between February and April 2025. He presents with ‘Depressive Disorder, Generalized Anxiety Disorder and Stress’ linked to traumatic events he experienced in Colombia and has reported experiencing suicidal ideations. Ms AC expresses the opinion that it would be detrimental for the applicant’s mental health and wellbeing if he were to return to Colombia due to ‘ongoing life threats against him’.
Evidence of ongoing threats and political affiliations
[2] Documents from Colombia consist of untranslated Spanish versions together with accredited English translations
A further Statutory Declaration dated 1 August 2024 from [Friend A] stating that on ‘repeated occasions’ he has been pursued by ‘individuals with shady backgrounds’ who have identified themselves as members of paramilitary groups. These people want to ‘settle accounts’ with the applicant in connection with his failure to comply with their orders regarding a job near [Landmark 1]. The applicant had to leave Cartagena due to extortion and being declared a ‘military target’. The paramilitary groups say they need to locate the applicant and will not rest until they find him. They say he must be ‘punished in a cruel manner’ or pay a large sum of money to be left alone. The applicant’s life is in danger in Cartagena where murders and contracted assassinations occur frequently.
Copies of 18 threat letters from various paramilitary groups dated from February 2005 to December 2024 (including two undated letters), as outlined below:
i.Letter dated February 2005 from [Paramilitary group 2] addressed to the applicant stating they know about his involvement with and support for the Liberal Party, which is ‘not tolerated’. The letter states that ‘plans have already been made for you to join our organisation’.
ii.Letter (undated) from [Paramilitary group 3] addressed to the applicant stating they know about him and his family, including his military service background, and have decided it is essential that he join their ranks. He will soon receive a summons from their commanders to coordinate his entry into the organisation. Failure to comply will result in ‘severe consequences’.
iii.Letter dated [June] 2005 from [Paramilitary group 3] addressed to the applicant stating that they know about him and his family. Specific reference is made to the applicant’s father [and siblings] being well-known [Occupation 3s] and the organisation knowing where they live and work. They know the applicant has been awarded a contract to build a [Structure 1] in the [Suburb 1] area and demand a sum of [amount] Colombian pesos (approx. $[amount] AUD) to ensure the project proceeds ‘without any trouble’. Someone from their organisation will visit the applicant within the next 48 hours to collect the money in cash. If he does not comply, his life and that of his family will be at risk.
iv.Letter dated August 2005 from [Paramilitary group 3] addressed to the applicant stating they have precise information about the [Structure 1] under construction and demanding that he modify the [specifications]. Threats are made if the applicant fails to comply with their demands.
v.Letter dated April 2006 from [Paramilitary group 4] addressed to the applicant stating they are aware of the contract he was awarded to [undertake work]. They need him to carry out a job for the organisation and will meet with him soon to show him exactly what is required. It is warned there will be severe consequences for disobedience.
vi.Letter dated [November] 2006 from [Paramilitary group 5] addressed to the applicant stating their concern about the delays in the ‘[work]’ he was ordered to carry out. They are not interested in his excuses relating to the rain and weather. Threats are made if he fails to comply with their demands.
vii.Letter dated [May] 2007 from [Paramilitary group 6] addressed to the applicant making threats in regard to his failure to comply with their instructions regarding the [work]. His actions have resulted in him being a ‘military target’ and they threaten to make him disappear.
viii.Letter (undated) from [Paramilitary group 6] addressed to the applicant stating that he turned out to be a ‘true backstabber’. No matter where in the world he is, there is no escape – they are watching and waiting for him. His movements are being tracked; he may have left but they will never forget him. If he ever returns to Colombia, he will not last a single day. He will be tortured and killed.
ix.Statement dated [March] 2009 from [Paramilitary group 5] announcing that it is actively pursuing several named people including the applicant because he disobeyed direct orders and belonged to ‘political parties with liberal leanings’. These people have been listed as ‘military targets’ and information leading to their whereabouts will be rewarded.
x.Letter dated [May] 2011 from [Paramilitary group 7] addressed to the applicant threatening they are hunting him down by land and air. Flyers are circulating across the country with his details and sooner or later someone will turn him over for the reward.
xi.Letter dated September 2011 from [Paramilitary group 6] addressed to the applicant stating that they continue to look for him and offer him a final chance to come forward and join [them].
xii.Letter dated April 2018 from [Paramilitary group 5] addressed to the applicant threatening that they have not forgotten about him and will find him. The only way off their list ‘is in a coffin’.
xiii.Letter dated July 2021 from [Paramilitary group 6] addressed to the applicant stating they are now working with the ‘[Criminal organisation 1]’ to hunt him down, ‘dead or alive’. He is now a military target of both groups.
xiv.Letter dated October 2022 from [Paramilitary group 5] addressed to the applicant stating they have been told he is now ‘posing as a social leader’ and are watching closely to make sure he never sets foot in Colombia again. He will remain a ‘military target’ until he dies.
xv.Letter dated December 2023 from [Paramilitary group 1] addressed to [Friend A] stating that they still have not located the applicant. They know that [Friend A] is the applicant’s friend and that he worked for the applicant on the project where he failed to comply with their demands. Threats are made to torture and kill the applicant.
xvi.Letter dated December 2023 from [Paramilitary group 6] addressed to the applicant reminding him that he is a military target of their organisation. They know he left Colombia to escape but there is nowhere in the world where he can hide. The applicant is accused of being a ‘snitch for the Liberal Party’.
xvii.Letter dated June 2024 from [Paramilitary group 6] addressed to the applicant threatening that they still consider him an enemy because he broke his word and is a ‘leader of the Liberal Party’. They should have killed him the day they [assaulted] him. They threaten to find him wherever he has escaped and kill him.
xviii.Letter dated December 2024 from [Criminal organisation 1] addressed to the applicant stating they have taken over the job of finding and killing him from [Paramilitary group 6].
Letter dated [November] 2024 from a Colombian Liberal Party Senator (Senator’s Letter) stating that the applicant has been an active member of the Colombian Liberal Party since 1995. He has led various projects and activities in support of the party and its ideals. Because of his political activism, the applicant has been subjected to threats from ‘criminal and terrorist organisations operating outside the law’ such as [Paramilitary group 1] (now known as [Paramilitary group 6]). These threats have occurred on multiple occasions, including following the applicant’s departure from Colombia in 2008, demonstrating that the danger to his life has not diminished.
Several letters from the Colombian Liberal Party were provided attesting to the applicant’s participation in events between 2001 and 2003, namely the ‘[Event 1]’ in November 2003; the ‘[Event 2]’ in September 2002 and the ‘[Event 3]’ in April 2001. A letter dated May 1997 from the Liberal Party, recommending the applicant for a [job] was also submitted.
A submission dated 20 May 2025 was provided which outlines a range of supporting evidence which is said to have been provided to the Tribunal. I note that some of these documents were not provided to the Tribunal, namely witness statements from family members, Colombian police reports/ complaints and evidence of the applicant’s attempts to relocate in Colombia and his forced exit from work due to threats. Reference is also made to country information having been submitted, including from the Department of Foreign Affairs and Trade (DFAT), Human Rights Watch and Amnesty International regarding the failure of state protection and power of criminal organisations. I note that the only country information submitted was a one-page document titled ‘Areas of influence of organised armed groups’ with the source named as ‘National Police’. This states that since 2024 there has been a 36 per cent increase in the presence of armed groups across 253 municipalities.
The Tribunal submission references case law and a 2019 Tribunal remit decision for a Colombian applicant[3] which is asserted to support the applicant’s case. It is submitted that the applicant has a well-founded fear of persecution for reasons of his political opinion and that he has suffered serious harm described as [inhuman and degrading] treatment or punishment, threats to his life, significant physical harassment and ill-treatment, significant economic hardship and denial of the capacity to earn a livelihood of any kind that threatens his capacity to subsist and other substantial violations of his human rights.
[3] Case # 1905696 [2019] AATA 4676 (8 July 2019)
A statement dated 20 May 2025 from the applicant (Tribunal Statement) was also submitted in which he states in summary:
i.He has lived in Australia for 16 years during which time he has made genuine efforts to contribute to Australian society while carrying the ‘emotional burden’ of his ‘unresolved past in Colombia’. He did not speak about his traumatic history or the danger he fled due to emotional trauma, fear and obligation toward his family who insisted that he remain silent to avoid putting them or himself at further risk.
ii.For over 10 years he was unable to share his truth and feared that he would be disbelieved or judged or ‘word might reach’ those who harmed him. This silence affected his mental health. The delay in applying for protection was not because he was not fearful or not being truthful; rather he was emotionally unable to open up and had a lack of understanding of his legal rights in Australia.
iii.He comes from a part of Colombia where political affiliation is dangerous. He was actively involved in political activities that put him at odds with armed groups. His political affiliation, together with his family’s social visibility, led to repeated threats and harassment which forced him to flee. The threats have not stopped and the groups that targeted him continue to hold influence in Colombia.
iv.He has lost his immediate family members in Colombia and has no-one to return to.
Evidence from Tribunal hearing
The applicant confirmed that his parents resided in Cartagena until they passed away. He has [siblings] who reside in Colombia. One brother resides in [Town 7]; one brother and one sister in Bogota; and [sisters] in Cartagena. Asked about the reference in his Tribunal Statement to having lost his immediate family members and having no-one left in Colombia, the applicant stated that he was referring to his parents and added that his brothers have their own families. Asked whether his family members in Colombia have experienced any problems in connection with the threats he received from paramilitary groups, the applicant responded that they have never told him of any problems.
The applicant stated that he moved with his family from Bogota to Cartagena when he was around [age] years old. He resided in Cartagena until mid-June 2007 when he moved to Santa Marta. Asked what he meant by being ‘in hiding’ while living in Santa Marta, the applicant stated that he stayed with a friend he had met while undertaking military service and relied on financial support from his father. He stated that he did not have a job during this period and relied on his father for financial support. I discussed with the applicant that this appears inconsistent with evidence in his First Statement which refers to him working in [an Occupation 2] role for [Company 1]. He then agreed that he did work for [Company 1] while in Santa Marta but [he] was not earning a salary.
Asked whether he returned to Cartagena during the period that he resided in Santa Marta, the applicant stated that he did; he had to return to undergo a physical and psychological evaluation due to being [assaulted]. He stated that he returned to Cartagena for these appointments because his father, who was the only person he spoke to about the assault, arranged them.
I discussed with the applicant that the Senator’s Letter indicates that the threats from paramilitary groups were due to his political involvement, whereas he claimed to the Department that this was due to his involvement in work contracts between 2005 and 2007. The applicant responded that there were many things he didn’t mention to the Department. He told his representative, who was based in Sydney, about his political activities but she overlooked that part of his claims. I raised with the applicant that I may have concerns with his explanation as he had the opportunity to expand on his claims during an interview with the delegate and in his post-interview written statement. He responded that he was very afraid and has been under a lot of stress while in Australia.
Asked how he obtained the Senator’s Letter, he stated that an old friend who is involved in politics in Colombia, helped him to obtain it. The applicant confirmed that he has had no direct engagement with the Senator who wrote the letter. Asked how the Senator would have any personal knowledge of the applicant’s experiences in Colombia, he eventually agreed that [he/she] does not, confirming that the letter is based on information provided by his friend. I explained that in those circumstances, I may not give any weight to the information in the Senator’s Letter.
Regarding the 18 threats letters submitted to the Tribunal, I asked the applicant to explain how and when he received these documents. He stated that they arrived ‘over time’ via people that he had worked with on construction projects. I noted that six of the letters pre-date his departure from Colombia and queried whether these were received by him while in Colombia. The applicant responded that he received one of the letters personally at his workplace and others via labourers that were working under his supervision. Regarding the letters that post-date his departure from Colombia, he stated that these were received by [Friend A] who sent them to the applicant shortly after receipt.
I discussed with the applicant that several of the threat letters pre-date the protection visa application, protection visa interview and delegate’s refusal decision. Asked why he did not provide these documents to the Department, the applicant stated that he only obtained these documents recently. He had forwarded the threats received while in Colombia to his father and was not previously aware that his father had saved them. He confirmed that this related to threats received while he was in Colombia. Regarding the threats issued after his departure from Colombia, he stated that [Friend A] only sent these to him after the Department’s refusal decision. I raised with the applicant that his earlier evidence was that [Friend A] forwarded them shortly after receipt.
Regarding the new medical evidence submitted to the Tribunal, the applicant confirmed that he commenced engaging with a psychologist in Australia in February 2025. His General Practitioner referred him to a psychologist at that time because he was mentally distressed and feeling suicidal. Asked about his new evidence relating to [an] assault in May 2007, the applicant stated that he was approached by [a group of] men one night in Cartagena. They insulted him and took him to an alley where he was [assaulted]. He stated that he had seen these men before and knows they were connected to the paramilitary group threatening him because while insulting him, they referred to details of his work contract. He stated that the photos submitted to the Tribunal show scars [of] the injuries he sustained during this incident.
I discussed with the applicant that the Tribunal submission refers to him experiencing harm including [assault details]. Asked why he did not mention this to the Department, the applicant stated that in his culture as a male it is difficult to speak of these things and he believed the medical reports, which he gave to his father, to be lost. He added that the protection visa interview was conducted by videoconference due to COVID. He could see that the delegate was in his kitchen and at times saw the delegate’s daughter in the background. He did not feel comfortable raising claims of such a personal nature in this context.
I raised with the applicant that he made no mention in his evidence to the Department of experiencing any physical violence. His claims were limited to verbal threats and intimidation. He responded that his representative did not have the right experience, he was afraid and had no documentary evidence, stating that he only recently gained access to most of the documents.
I discussed with the applicant that, while I had not made up my mind, I have several concerns regarding the credibility of key aspects of his claims. I noted that his claims have expanded considerably following the delegate’s refusal decision. The late disclosure of significant documentary evidence may cause me to have concerns about the credibility of his claims. I also noted that his evidence to the Department made no mention of any written threats from paramilitary groups and referred only to verbal threats.
I raised concerns regarding his claims that paramilitary groups have continued to target him since around 2006, amounting to a period of close to 20 years, yet his family members in Colombia have not been contacted or harmed despite several of the threat letters stating that the groups know his family’s location. The applicant responded that all his siblings are pensioners; they have not received any threats because they are not inside the ‘medium’. The threats are directed toward him because he did not comply with the demands of the paramilitaries, was part of the Liberal Party, and was an army reservist.
I discussed with the applicant country information indicating that [information relating to Paramilitary group 1]. I raised with the applicant that I may not accept that he would continue to be of any adverse interest to [Paramilitary group 1] or any other paramilitary groups. The applicant responded that he is a military target of organised paramilitary groups which mutate but continue on.
Asked whether there is any other reason he could not return to Colombia, the applicant stated that the paramilitaries don’t forget and will make an example of him. He fears being tortured which causes him to feel suicidal. He is [age] years old with various medical conditions ([deleted]), has lost all his roots in Colombia after 16 years in Australia and would be unable to re-establish himself.
I explained to the applicant that my assessment is limited to whether he satisfies the refugee or complementary protection requirements and difficulties in re-establishing himself in Colombia may not meet those requirements. While acknowledging the character references submitted to the Tribunal, I explained that these are not relevant to my assessment of whether he engages protection obligations with respect to Colombia.
FINDINGS AND ASSESSMENT
The issue in this case is whether
the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. For the following reasons, I have concluded that the decision under review should be affirmed.
Criteria for 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. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Factual findings
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I acknowledge that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out.[5]
[4] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
As outlined above, the applicant’s claims and supporting evidence have expanded considerably since his protection visa refusal. I acknowledge that there may be valid reasons for the raising of new evidence. However, for the reasons set out below, I have significant concerns with the majority of the new evidence and claims submitted to the Tribunal. I have considered the applicant’s explanations to the Tribunal for the late disclosure of claims and evidence. However, in the circumstances, I do not find these explanations to overcome my concerns.
I accept the applicant’s employment in Colombia as an [Occupation 1], including his involvement in three government contracts between 2005 and 2007 in and around Cartagena. These claims have remained consistent and are supported by reliable documentary evidence. I accept as plausible that in the context of his involvement in these projects the applicant had interactions with members of a paramilitary group known as [Paramilitary group 1]. According to country information, [details deleted]. Aside from extortion and kidnapping, tactics employed by [Paramilitary group 1] included death threats against those who opposed the group.[6]
[6] [Information deleted].
I accept the applicant’s claims as presented to the Department regarding the nature of his interactions with [Paramilitary group 1] between 2005 and 2007 to be generally credible. I accept that in 2005 members of the group demanded the applicant change the specifications of a [Structure 1]; the applicant complied and experienced no further problems in connection with this contract. I accept that in 2006, while working on the construction of [Structure 2] in [Towns 1 and 2], members of the group checked identity documentation for the applicant and his workers; the applicant did not experience any threats or demands in connection with this contract.
I accept that between mid-2006 and mid-2007, [Paramilitary group 1] demanded the applicant construct unauthorised [Structure 3] on land near [Landmark 1]; the applicant was able to delay complying with these demands due to weather conditions and terminated this contract without penalty. I accept that the applicant experienced verbal threats and harassment from [Paramilitary group 1] in connection with this contract. However, for the reasons below I do not accept that he was subject to any physical violence or received any written threat letters from [Paramilitary group 1] or any other paramilitary group.
In his evidence to the Tribunal, the applicant raised a significant new claim to have been [assaulted] in Cartagena in May 2007 by members of [Paramilitary group 1]. He provided supporting documentary evidence in the form of medical reports from a clinic in Cartagena and photos of scars on his [body]. There is nothing on the face of the medical reports or photos to indicate they are not genuine and given the personal and sensitive nature of this evidence, I have drawn no adverse inference due to the applicant’s failure to present this evidence to the Department. Based on this evidence, I accept that the applicant was subject to [an] assault in May 2007, following which he attended three consultations with a medical clinic in Cartagena consisting of physical examinations on 10 May 2007 and 8 August 2007 and a psychological assessment on 11 August 2007.
Based on the supporting medical evidence, I accept that the applicant was diagnosed with [Medical condition 1] on 8 June 2008, for which he underwent surgery in Cartagena [in] June 2008. However, I do not accept that this had any connection to the assault in May 2007. The medical report dated 8 August 2007 concluded that the assault in May 2007 did not give rise to any ‘significant physical problems’ and no ‘additional interventions’ were required.
There is no indication in the medical evidence that the attack was connected to [Paramilitary group 1] or any other paramilitary group. In his oral evidence to the Tribunal the applicant stated that he knew his attackers were part of [Paramilitary group 1] as they knew information about his work contract. However, based on the available evidence I do not accept that this assault had any connection with [Paramilitary group 1] or any other paramilitary group. I find the applicant’s failure to mention any physical harm from paramilitary groups in his written or oral evidence to the Department to significantly undermine this claim. In his First Statement, the applicant referred to verbal threats and harassment from [Paramilitary group 1] in February 2007 and May 2007 but did not raise any claims that this involved physical violence of any kind. [Information deleted] I have significant concerns regarding the failure to refer to any kind of physical harm. Considering the above, I find that this assault was a random, isolated incident. I acknowledge that this was a traumatic and distressing experience for the applicant, for which he has recently engaged with mental health supports in Australia.
The applicant presented to the Tribunal a significant volume of new documentary evidence in the form of 18 threat letters from paramilitary groups dated from February 2005 to December 2024. Six of these letters pre-date the applicant’s departure from Colombia and, based on the content, a seventh letter (undated) also appears to have been issued while the applicant was in Colombia. The applicant stated to the Tribunal that he received these letters while in Colombia and gave them to his father; but only received them recently. A further 10 letters post-date the applicant’s departure from Colombia and, based on the content, an eleventh (undated) letter also appears to have been issued following his departure. Four of these letters pre-date lodgement of the protection visa application and five pre-date the protection visa interview and delegate’s refusal decision. The applicant indicated to the Tribunal that these were delivered to [Friend A] who forwarded them to him in Australia. The applicant provided inconsistent evidence as to when he received these – initially stating that [Friend A] forwarded them not long after they were delivered and subsequently claiming that [Friend A] did not forward them until after the delegate’s refusal decision.
For the reasons outlined below I have significant concerns in regard to the 18 threat letters. While I have not come to any conclusions regarding their authenticity, I have given these documents no weight in my assessment of the applicant’s claims.
i.The applicant made no mention in his written or oral evidence to the Department of receiving any threat letters from [Paramilitary group 1] or any other paramilitary group. Even allowing for any difficulties or delays in obtaining copies of these letters, the omission of any reference to receiving written threats significantly undermines these claims. In his Second Statement the applicant stated that in 2014 he was advised by family and colleagues in Colombia to not return because they had ‘heard threats’ against him. Yet, at this time he claims to have been issued with more than 10 threat letters, several of which he had provided to his father and others received by [Friend A].
ii.I have significant concerns regarding the applicant’s failure to submit any documentary evidence to the Department of threat letters which pre-date the delegate’s refusal decision. I have considered the applicant’s explanation to the Tribunal for this omission but considering the significance of these documents to his claims, do find this to be convincing. As noted above the applicant provided inconsistent explanations to the Tribunal regarding when [Friend A] forwarded him the threat letters post-dating his departure from Colombia. Given [Friend A's] apparent awareness of the applicant’s protection visa application by way of providing a supporting Statutory Declaration, I do not consider it plausible that he would delay in sending threat letters to the applicant until after the delegate’s refusal decision. Further, in his Second Statement, the applicant stated that [Friend A] has kept him informed of the ‘persecution’ against him.
iii.The first Statutory Declaration of [Friend A] fails to mention any written threats from paramilitary groups despite the applicant’s evidence to the Tribunal that the threat letters post-dating his departure from Colombia were delivered to [Friend A]. [Friend A’s] first Statutory Declaration refers only to verbal threats against the applicant as relayed to former workers.
iv.The content of the threat letter dated [June] 2005 is inconsistent with the applicant’s evidence to the Department that, after complying with the demands to change the specifications of the [Structure 1] in 2005, he did not experience any further problems with paramilitaries in connection with this contract. He made no reference to receiving demands to pay a sum of money in connection with this contract.
v.Several of the threat letters (February 2005, December 2023 and June 2024) refer to the applicant being targeted because of his involvement with the Liberal Party. As discussed below, I accept that the applicant was a supporter of the Colombian Liberal Party. However, in his written and oral evidence to the Department, the applicant raised no claims to have been targeted by paramilitary groups for this reason. The only reason raised was his involvement in three government work contracts between 2005 and 2007.
In addition to the above, I do not consider it plausible that the applicant would continue to be targeted by [Paramilitary group 1] or affiliated paramilitary groups from 2005 until 2024, including a period of 16 years in which he has resided outside Colombia. I do not consider it plausible that his failure to comply with the group’s demands in 2006/2007, in circumstances where the contract was terminated at some point in 2007, would give rise to a profile of ongoing and sustained adverse interest on the part of multiple paramilitary groups. The absence of any harm to the applicant’s family members in Colombia, including those residing in Cartagena, in circumstances where the applicant claims the threats extended to them, further undermines his claims.
Following the applicant’s departure from Colombia there have been significant developments in the leadership and reach of [Paramilitary group 1]. As discussed with the applicant at the hearing, country information indicates that [deleted].[7] I do not consider it plausible that throughout and subsequent to this period of upheaval, the group would continue to specifically target the applicant.
[7][Information deleted].
Considering the above concerns, I have given no weight to the information in the Statutory Declarations of [Friend A] regarding ongoing adverse interest by [Paramilitary group 1] toward the applicant.
The applicant submitted to the Tribunal new documentary evidence of his involvement with the Colombian Liberal Party. There is nothing on the face of these documents to indicate they are not genuine. I accept that the applicant was a member of the Colombian Liberal Party since around 1995 and attended party events between 2001 and 2003. Based on the available evidence, I find that he was an ordinary member and held no leadership role or particular profile within the party. I do not accept that he was targeted by paramilitary groups for reasons of his involvement with the Liberal Party. As above, the applicant did not raise any such claims with the Department. I acknowledge the claim in the Senator’s Letter that the applicant was subjected to threats from paramilitary groups because of his ‘political activism’. However, considering the applicant’s oral evidence to the Tribunal confirming that the Senator had no personal knowledge of his circumstances in Colombia, I have given this statement no weight.
I accept that the applicant moved, with his wife, from Cartagena to Santa Marta in June 2007. However, I do not accept that this was related to threats or harm from [Paramilitary group 1] or any other paramilitary groups in Cartagena. Nor do I accept that the applicant was in hiding while residing in Santa Marta. He confirmed to the Tribunal that he was working in [an Occupation 2] role for [Company 1] during this period and returned on several occasions to Cartagena for medical treatment. The medical evidence submitted to the Tribunal indicates that the applicant returned to Cartagena for two medical consultations in August 2007 and surgery in June 2008. While I acknowledge the applicant’s explanation to the Tribunal for why he attended these appointments in Cartagena, I do not consider it plausible that he would return to Cartagena if he was genuinely being targeted by paramilitary groups as claimed and had been [assaulted] by members of [Paramilitary group 1] in May 2007.
I find the 10-year delay in applying for protection to be significant. In circumstances where the applicant claims to have left Colombia due to threats from paramilitary groups and in fear for his safety, I find this substantial delay to further undermine his claims. I have had regard to the applicant’s explanation to the Department and Tribunal for this delay. However, given my findings above that the [assault] was not related to paramilitary groups, I do not find his difficulties in speaking of this incident to explain the delay. Further, I do not find the applicant’s claim that he was unaware of a protection visa until 2018 to be convincing. He had resided in Australia since 2008 on multiple Student visas and applied for inclusion in his ex-wife’s subclass 457 visa, indicating a substantial history of interaction with the Department and an understanding of Australian visa pathways. If he had genuinely been subject to sustained threats from paramilitary groups in Colombia since 2005 as claimed, I consider the applicant would have taken earlier steps to investigate options to remain in Australia on a permanent basis.
Considering all the above, I find that the threats from [Paramilitary group 1] were limited to incidents of verbal harassment and intimidation between 2006 and 2007 in connection with the [Structure 3] contract. I do not accept that the applicant was subject to any further verbal threats or harassment from [Paramilitary group 1] or any other paramilitary groups after terminating this contract in 2007. I do not accept that he received any written threats from [Paramilitary group 1] or any other paramilitary group while in Colombia or Australia.
Refugee and complementary protection assessment
I find the applicant’s ‘home area’ or place of likely return to be Cartagena considering this was his previous primary place of residence and the area where several of his siblings continue to reside. Considering my findings above, I am not satisfied there is a real chance that the applicant will face any harm from [Paramilitary group 1] or affiliated paramilitary groups in the reasonably foreseeable future if he returns to Cartagena. I find that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s 5H(1) of the Act.
I have therefore considered the complementary protection criterion in s 36(2)(aa) which requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Colombia, there is a real risk that the applicant will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The real risk threshold has been held to equate to the real chance threshold.[8] For the same reasons as above, I am not satisfied there is a real risk that, as a necessary and foreseeable consequence of the applicant’s removal to Colombia, he will face harm from [Paramilitary group 1] or affiliated paramilitary groups. I am therefore not satisfied that he faces a real risk of significant harm from paramilitary groups in Cartagena.
[8] MIAC v SZQRB [2013] FCAFC 33
I have found above that the applicant was previously subject to an incident of [assault] while residing in Cartagena and acknowledge that violence and crime are prevalent throughout Colombia.[9] However, I find this to amount to generalised violence. In circumstances of generalised violence, the Courts have found that s 36(2B)(c) of the Act requires an applicant to demonstrate that they face a particular risk of harm because of a characteristic which distinguishes them from the population generally. The provision is therefore directed toward circumstances in which the risk of harm is one shared by the general population, as opposed to one in which the applicant is exposed to harm in an individual or personal sense.[10]
[9] Freedom House, Freedom in the World 2024: Colombia; US Department of State, 2023 Country Reports on Human Rights Practices
[10] SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [10] – [14] (Upheld in the refusal of special leave to appeal: SZSPT v Minister for Immigration and Border Protection [2015] HCASL 114); BBK15 v Minister for Immigration and Border Protection [2016] FCA 680 at [30]
I find that the applicant does not have any characteristic or profile that would cause him to face a particular risk of violence on return to Cartagena. Country information indicates that groups particularly affected by violence include indigenous peoples, Afro-Colombian populations, members of the LGBTI community, community leaders, human rights defenders and persons residing in areas affected by conflict between the government and irregular armed groups for control of territory vacated by the former FARC-EP.[11] According to sources cited in a recent UNHCR report, conflict areas include northern Antioquia, southern Córdoba, and southern Bolívar; Urabá region in Antioquia and Chocó; the Pacific coast; northern Cauca and southern Valle del Cauca; Tumaco; Nariño and Cauca Pacific coasts; lower Putumayo; Catatumbo in Northern Santander, and southern Cesar; and Algeciras in Huila, north-western Caquetá, and southern Meta.[12] This does not encompass the applicant’s home area of Cartagena.
[11] UNHCR, International Protection Considerations with regard to people fleeing Colombia, August 2023;[12] UNHCR, International Protection Considerations with regard to people fleeing Colombia, August 2023
The applicant has raised claims that he would experience difficulties in re-establishing himself in Colombia due to his extended absence. While I find that the applicant would have the support of several siblings in Colombia, I acknowledge that he would experience personal challenges in re-integrating. However, I am not satisfied that these would satisfy the complementary protection criterion. He also raised with the Tribunal that he would experience difficulties due to his medical conditions which he described as [deleted]. While no supporting evidence has been submitted to the Tribunal, I accept that the applicant suffers from these conditions. However, these are common medical conditions which I find the applicant would be able to continue managing on return to Colombia. I am not satisfied that these issues give rise to a real risk of any type of significant harm set out in s 36(2A).
I acknowledge the view of Ms AC in the psychological report submitted to the Tribunal that it would be detrimental for the applicant’s mental health and wellbeing if he were to return to Colombia due to ‘ongoing life threats against him’. However, I have found above that there is no real chance or real risk of harm to the applicant from paramilitary groups in Colombia. Regarding any deterioration in the applicant’s mental health on return to Colombia, the Courts have confirmed that the definitions of significant harm in s 36(2A) of the Act do not encompass self-harm or harm arising from mental illness on return to a receiving country.[13]
[13] GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [37]; CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 at [65]–[68]
The applicant has not claimed to fear harm for any other reason if he returns to Colombia and I find that no other protection claims arise on the facts.
Conclusions
For the reasons given above I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 28 May 2025
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.
…
Freedom House, Freedom in the World 2024: Colombia; US Department of State, 2023 Country Reports on Human Rights Practices
0
10
0