2206185 (Refugee) - [2025] ARTA 1982

2206185 (REFUGEE) [2025] ARTA 1982 (5 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2206185
Tribunal:General Member M Bailey
Date:5 September 2025

Place:Brisbane
Decision:The Tribunal affirms the decisions under review

Statement made on 05 September 2025 at 3:02pm
CATCHWORDS
REFUGEE – protection visa – Colombia – witness to home invasion by local gang, with claim of police involvement – first applicant involved in community group – threatening notes and phone calls – continuing threats by social media and approaches to tenants of house – extended return travel and delay in applying for protection – application made one week before temporary work visa due to expire – claim as witness to crime accepted – claim of ongoing targeting by gang and/or police not accepted – no direct confrontation or formal report – members of family unit wife and adult son – son withdrawn from application and applying for partner visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), (2A), 65, 359A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
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 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 12 April 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (applicant), second named applicant (second applicant) and their adult son, [Mr A], applied for the visas on 7 March 2019. The delegate refused to grant the visas on the basis that the applicant did not satisfy the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The other applicants, who had not raised their own claims for protection, were found to not satisfy the criteria in s 36(2)(b) or (c) as members of the same family unit as the applicant.
On 27 April 2022 the applicants lodged a review application with the former Administrative Appeals Tribunal (AAT). 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.
On 18 June 2025 the applicant attended a telephone directions hearing, together with his representative. The Tribunal issued a direction requiring the applicants to submit further supporting statements and evidence by 10 July 2025. In compliance with the direction, the applicants submitted additional evidence on 10 July 2025 as outlined below.
During the directions hearing, the applicant advised that his son wished to withdraw from the review application as he was pursuing a partner visa. The Tribunal requested written confirmation of the withdrawal request. On 24 June 2025 the applicants’ representative submitted a completed withdrawal form for [Mr A]. Based on the written confirmation, [Mr A] has been withdrawn from the review application. In a completed response to hearing notice, the applicants advised that only the applicant would attend the Tribunal hearing, together with his representative.
The applicant appeared before the Tribunal at the Brisbane Registry on 17 July 2025 to give evidence and present arguments. His representative also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
BACKGROUND
The applicant, a [Age]-year-old male, and the second applicant, a [Age]-year-old female, are husband and wife.
The applicants first arrived in Australia [in] January 2009 on Student (subclass 570) visas. As further discussed below, the applicant undertook the following travel prior to his final arrival in Australia [in] December 2018. He was accompanied by the second applicant and their two sons during the travel between June 2016 and October 2017.
i.Departed Australia [May] 2012 – arrived in Australia [July] 2012
ii.Departed Australia [April] 2013 – arrived in Australia [May] 2013
iii.Departed Australia [June] 2016 – arrived in Australia [October] 2017
iv.Departed Australia [November] 2018 – arrived in Australia [December] 2018
The applicants presented certified copies of the biodata pages of their Colombian passports to the Department of Home Affairs (Department) in support of the protection visa application. The delegate found them to be citizens of Colombia. Based on the available evidence, I am satisfied that the applicants are citizens of Colombia and Colombia is their receiving country for the purposes of assessing their protection claims.
CLAIMS AND EVIDENCE
Evidence before the Department
According to the protection visa application, which was prepared with the assistance of a registered migration agent, the applicant was born in Bogota and the second applicant in Cali. The applicants married in February 1991. The applicant’s residential address between 1991 and 2009 was recorded as Cordoba. The applicant completed a tertiary degree in [subject] between 1981 and 1986. He was employed in various [roles] between 1987 and December 2008. Regarding his travel history, the applicant declared trips to [Country 1] in April 2007; [Country 2] in June 2016; [Country 3] in July 2016 and [Country 4] in August 2016.
Regarding their claims for protection, only the applicant raised his own claims. Reference is made to an ‘attached Statement’ regarding his reasons for leaving Colombia and the type of harm he thinks he will experience on return. He stated that he experienced harm in Colombia in the nature of ‘psychological torture’ and left before it ‘became physical’. He sought help from the authorities, but they did not assist him. In response to the question of whether he tried to move to another part of Colombia to seek safety, he stated ‘Yes’ followed by ‘Please explain’. The application form stated that additional evidence ‘will be provided as a matter of priority’.
On 28 March 2019, the Department wrote to the applicants via their representative, inviting them to provide further details regarding their protection claims and any supporting evidence (s 56 Request). No response was received to the s 56 Request. On 10 March 2022 the Department wrote again to the applicants via their representative, noting their application lacks substantiating details and evidence. They were invited to submit additional information regarding their protection claims. The Department also raised the following issues with the applicants pursuant to s 57 of the Act and provided them with an opportunity to comment
(s 57 Request).
i.The 10-year delay in applying for a protection visa following their initial arrival to Australia in January 2009 raises concerns about the genuineness of the protection claims.
ii.According to Departmental records, since the applicant’s initial arrival in January 2009, he has been outside Australia between [May] 2012 and [July] 2012; [April] 2013 and [May] 2013; [June] 2016 and [October] 2017; and [November] 2018 and [December] 2018. In his outgoing passenger card dated [May] 2012 he stated that he would be spending the majority of his time abroad in Colombia, where he intended to remain for two months.
iii.The applicant’s passport reflects entry and exit stamps for Colombia dated [September] 2016 and [October] 2017. His failure to declare his return travel to Colombia in 2012 and 2016/2017 in the protection visa application raises serious credibility concerns. Further, his return travel to Colombia raises concerns about the genuineness of his protection claims.
No response to the s 57 Request was received from the applicants. Based on the available evidence, the delegate did not accept any of the applicant’s claims to fear harm in Colombia to be credible.
Evidence before the Tribunal
Pre-hearing evidence
On 2 June 2022 the applicant provided a statement advising that he did not receive the Department’s s 56 or s 57 Requests as they were not forwarded to him by his representative. He only became aware of this correspondence when he received a copy of the delegate’s refusal decision. At this time, he also became aware that his representative had not passed on supporting evidence to the Department. The applicant provided email correspondence with his representative to support these assertions.
The applicant provided a Statutory Declaration dated 19 December 2022 (2022 Statutory Declaration). Relevant evidence from the 2022 Statutory Declaration is summarised below:
i.His representative did not provide the Department with important evidence in the form of his statement and a condolence card sent to him in April 2019 by his persecutors in Colombia. The condolence card, which he received through a tenant living at his house, was effectively a death threat. It stated (as translated into English), ‘We are in pain for your loss of [the applicant] who died on …’ The date of death was left blank. He had understood this evidence had been submitted to the Department. He has asked his representative on multiple occasions to return the evidence, including the condolence card, but he has failed to do so (supporting emails to his representative are provided).
ii.Since 1991, the applicant lived with his wife and two sons in [Town 1], an area located approximately [Distance] kms from Bogota. They lived there peacefully until 2005 when a series of home invasions by criminal gangs began occurring in their area. In September 2006 a neighbouring house was robbed by five or six heavily armed men. The applicant, his wife, his two sisters (one visiting from [Country 2] and another who lived in the same neighbourhood) and his two sons were home at the time. The applicant fired his shotgun into the air when he saw two of the men escaping over the back fence. One of the men fired his gun toward the applicant. Luckily no-one was hit.
iii.The following afternoon his neighbour whose home had been robbed asked the applicant to accompany him to the police station. When they arrived at the station, the applicant recognised one of the police officers as the robber who had fired at him the previous night. He recognised him by a birthmark on his face, his haircut and physique. His neighbour told the applicant there would be no police investigation and he would pursue an insurance claim for the stolen property.
iv.The home invasions continued in 2007. His community held regular meetings and created a [Communications app 1] group to discuss safety issues. In 2008 the applicant was able to become more involved in these meetings and disclosed his theory that the police were involved in the gang perpetrating the robberies. He suggested that a serving police officer was responsible for firing at him on the night his neighbour’s home was robbed. This was a mistake because the police were included in the community [Communications app 1] group and were usually invited to community meetings.
v.The following afternoon he received an envelope addressed to him, which was left in the letterbox at the main gate to his community. It contained a small note with letters cut out from a newspaper warning that he should close his mouth if he valued his life and family. This was followed by a series of short threatening phone calls to his home. Two months after he received the first envelope, a second envelope was delivered to the community letterbox. It contained a photocopy of a handwritten note warning ‘You are talking about me. Get lost!’
vi.While returning home one day he was stopped by police at an intersection. He recognised the officer who had shot at him on the night of the robbery. The officer asked the applicant if he knew him or had seen him before, to which the applicant answered no. The officer inspected the applicant’s license and registration papers before telling him to ‘leave quietly’ and they would see each other soon.
vii.In fear and desperation, the applicant spoke in confidence to a person he knew who worked for the local council. He provided her with the threat letters and told her of his suspicions of police involvement in the robberies. She promised to look into it but when he saw her again one week later, she told him to keep silent and ‘get as far away’ as he could. She refused to return the threat letters, claiming that he had not given her any documents.
viii.The threatening phone calls to his home continued. He decided that he and his family would leave for Australia with the ‘utmost urgency’. They had previously planned to come to Australia for his oldest son’s studies. However, the threats caused their departure in January 2009 to become a ‘dashing escape motivated by the need to protect’ his family. In the meantime, he continued to work as usual but spent weekends at their holiday cottage in [Town 2], around 65 kms from their home.
ix.Following their arrival in Australia in January 2009, they rented their house to a couple. After some time, this couple suddenly informed the applicant that they wanted to leave, without giving any reason. The house was then rented to another couple for two years who again suddenly informed him they wanted to leave. The house was then rented to his cousin who lives in [Country 5]. They expected to stay for more than three years however they soon terminated the contract and left.
x.During a return visit to Colombia in 2017 he learnt what may have caused these sudden departures. He received a call at the house from a male voice asking if he was the tenant and demanding to know the owner’s whereabouts so he could give him a ‘present’. They warned that it was best for him to leave the house. He thinks this person was unaware that he was the owner of the house. He also heard that people had come to his neighbourhood asking about him. These incidents caused him to move his family to his sister-in-law’s house in the countryside in [Town 3].
xi.While in Australia, he received intimidating and threatening [Communications app 2] and voicemail messages including in May, June and August 2018.
xii.[In] November 2018 he travelled to Colombia to arrange for the sale of the house and a car that was registered in his name. Eight days after he arrived, he visited [Town 1] (about 12 kms from his home) to see a lawyer to whom he was granting power of attorney to sell the house. He was approached by a woman who told him they knew who he was and asked whether he wanted to ‘be disappeared’. She warned they could ‘disappear’ anyone, including him and his family. He was too fearful to continue with the legal process to sell the house, which remains unsold and empty. He spoke to his lawyer about seeking protection from the Ombudsman’s Office but was advised that the people threatening him ‘have the power’. Due to this incident, he cut short his trip and departed Colombia [in] December 2018.
xiii.Regarding the delay in applying for a protection visa, the main reason was that initially they planned to remain temporarily on a student visa until things settled down in Colombia. He thought the danger would only be short term but was constantly advised by his father to remain in Australia as the situation had not improved. He was not even aware of a protection visa until 2019.
xiv.Regarding his departures from Australia, he first returned to Colombia between [May] and [July] 2012 due to a deterioration in his father’s health. His wish to see his father before he died outweighed his fear for his own safety. During this visit he stayed at his father’s home in Bogota and was ‘in hiding’. His father’s health improved, and he stayed longer at his father’s request. His father knew all about the threats and insisted the applicant not attend his funeral as it would easy for his enemies to locate him there.
xv.He returned for a second time to Colombia between [April] and [May] 2013 as his father’s health again deteriorated. His father made the applicant promise to not return to Colombia for his safety. His father passed away in 2015. His sister advised him to remain in Australia.
xvi.Between [June] 2016 and [October] 2017, his family had to leave Australia due to their visa conditions. They visited Europe while awaiting new visas. Due to a delay in the grant of their visas they had no option but to return to Colombia. While living in their house they received threatening calls and were so ‘terrified that someone was after’ them they moved to [Town 3].
xvii.He returned for a final time to Colombia between [November] and [December] 2018 to organise a power of attorney, arrange for the sale of his car and finalise his accounts. Due to the threatening incident in [Town 1], he left Colombia more than two weeks earlier than planned.
In April 2023 the applicants submitted to the Tribunal additional documents as outlined below.
Statutory Declaration dated 21 December 2022 from two former tenants of the applicants’ house in Colombia (‘[Ms B]’ and ‘[Mr C]’). They state that they entered into a rental contract for the period 1 February 2019 to 28 February 2020 but had to terminate the contract for their safety as they were receiving threatening calls on a daily basis asking for the applicant’s whereabouts. They left the property on 30 June 2019 and over the next two months gradually moved their belongings out of the house. At the end of June 2019 an envelope was received in the ‘block mailbox’ addressed to the applicant. The envelope and note were given to the applicant’s sister, [Ms D]. Months later they informed the applicant of this via email dated 4 March 2020. A copy of the rental contract, together with identity documents for the tenants, was also provided.
Statutory Declaration dated 26 November 2022 by the applicant’s sister, [Ms D], stating in summary that:
i.She witnessed the robbery of a neighbour in September 2006.
ii.She has known ‘since 2018’, based on conversations with her father ‘(still alive at that time)’ of the threats toward the applicant and his family.
iii.In mid-November 2018, the applicant stayed with her during a return visit to Colombia for the purpose of finalising legal matters. Two weeks after his arrival, the applicant told her he had been approached by a woman and threatened. They travelled immediately to their house in [Town 2] where the applicant remained until he could depart Colombia.
iv.She represented the applicant regarding the leasing of his house between February 2019 and February 2020. In early July 2019, one of the tenants informed her that they would leave the property on 30 June 2019 due to threats to their safety. The tenant handed her an envelope with a note stating ‘You choose. The date depends on you’. Inside the envelope she found a condolence notice containing the applicant’s name and ‘nothing other than the note described’. She did not initially inform her brother of this as she did not want to worry him. Three months later she told her brother about this when informing him of the cessation of the lease. On 18 February 2020 she sent the condolence notice and note to the applicant via ‘DHL Express Worldwide’. A copy of the DHL envelope was provided.
v.An email from [Ms B] to the applicant dated 4 March 2020 (untranslated version and English translation) is attached titled ‘Report on threatening situation’. [Ms B] states that they had to leave the rental property in ‘June 2020’ and ‘finally returned it in August 2020’ due to threats to their safety. They do not know who sent the threat against the applicant and do not wish to speak with anyone about this.

Email dated 5 January 2023 from a ‘General Producer, [Radio station]’ to the applicant answering a series of questions about her knowledge of crimes involving the police in Colombia.
In response to the Tribunal direction, the applicants’ representative provided written submissions dated 10 July 2025 asserting that the applicant engages complementary protection obligations on the basis of a real risk of significant harm. The second applicant is submitted to be at risk of harm as a family member of a targeted individual. Country information is cited regarding the prevalence of police violence and impunity in Colombia.
A Statutory Declaration of the applicant dated 10 July 2025 was submitted which contains identical information to the applicant’s 2022 Statutory Declaration as outlined above, except for an additional first paragraph explaining that this was the first statement made in response to the delegate’s refusal decision. A further Statutory Declaration of the applicant dated 10 July 2025 was submitted stating in summary:
i.He fears for his life and that of his family if they return to Colombia based on various threats he has received. These threats have occurred regularly while he was in Colombia and via calls made to his home while he has resided in Australia. He has also received abusive messages via [Communications app 2].
ii.He was threatened during his return visit to Colombia in 2018 – nine years after the initial threat – illustrating that the risk remains current. The perpetrators, who are part of the police, knew that he had returned to Colombia a few days after his arrival.
iii.The gang responsible for the robbery of his neighbour consisted of officers no older than 35, meaning they would now be between 40 and 50 and still working. Illegal gangs within the Colombian police have increased over recent years and the political and security situation in Colombia has deteriorated. As the people seeking to harm him are the police, he cannot seek help from the Colombian authorities.
The following additional documents were submitted:
i.Screenshots of three [Communications app 2] posts: untranslated message dated 22 May 2018 from ‘[Mr E]’; untranslated message dated 16 June 2018 from ‘[Mr F]’; and a voicemail (content unknown) dated 14 May 2018 from ‘[Mr G]’.
ii.Statutory Declaration dated 21 December 2022 of [Ms B] and [Mr C] as outlined above.
iii.Statutory Declaration dated 26 November 2022 of [Ms D], together with supporting documents, as outlined above.
iv.Letter dated 1 July 2025 from the applicant’s former parish priest in Brisbane who states that he has known the applicants since 2013. The applicant contacted him for advice when he was feeling extremely stressed and even suicidal. The applicant has since had ‘professional psychological care with Centacare’. The applicant told him that he had to leave Colombia after receiving a series of threatening letters from corrupt police. This eventuated in a death threat delivered to his former home. He received this threat via his sister and provided it to his ‘lawyer’ who has refused to return it to the applicant. The author also provides positive character references for the applicants.
v.Copies of email correspondence with the applicants’ former representative, as previously submitted, together with a card evidencing the applicant’s professional qualifications in Colombia as [an occupation].
Evidence from Tribunal hearing
The applicant confirmed that he has always resided in Bogota; the reference in the protection visa application to ‘Cordoba’ being his place of residence between 1991 and 2009 is incorrect. His mother passed away in 2006 and his father in 2015. He has three sisters. One older sister resides in Bogota, his younger sister lives in [Town 1] (in the same neighbourhood that he previously resided) and another sister lives in [Country 2] as a citizen. His oldest son is currently [Age] and is now an Australian citizen. His younger son, currently [Age] years old, has applied for a partner visa in Australia. The applicant completed a university degree in [subject] in 1986. He worked in various [roles] between 1987 until departing Colombia in December 2008. Between 2003 and 2008 he owned his own [business].
Regarding the robbery of his neighbour in September 2006, he stated that this occurred in the early evening. The man who shot at him was close enough that he could identify him. His sister who continues to reside in [Town 1] also saw this man, but she has not experienced any problems. Asked why he would publicly express his suspicions of police involvement at a community meeting at which police were often in attendance, he responded that the police were not in attendance at that particular meeting. Asked whether he kept copies of the written threats received in 2008, he stated that he gave the originals to the woman at the council and did not retain any copies.
Regarding his first return to Colombia between [May] 2012 and [July] 2012, the applicant stated that he stayed at his father’s house in Bogota and did not experience any problems. During the second return trip between [April] 2013 and [May] 2013, he again stayed with his father. He did not experience any problems, but his father kept telling him not to come back to Colombia.
Regarding the third period of travel ([June] 2016 to [October] 2017) with his wife and two sons, the applicant agreed that they spent over one year in Colombia (September 2016 to October 2017). On arriving in Colombia, they went straight to their house in [Town 1]. Asked how long they resided in the house, he stated that they remained there for around one to one and a half months. They left after receiving a threatening phone call. He confirmed that the person who called the house did not know he was the owner and believed him to be a tenant.
Regarding his final return between [November] 2018 and [December] 2018, he initially stayed with his sister in [Town 1]. Following the threat received in [Town 1], he went to stay in [Town 2]. Asked why he had to personally return to Colombia to arrange for the sale of his house and car, he agreed that he could have made the necessary arrangements from Australia but indicated that there were limitations. It was better for him to return to Colombia to arrange the power of attorney.
Regarding the threat received eight days after his arrival in November 2018, the applicant was asked why the people targeting him would be aware of his return to Colombia on this particular occasion but not during his previous three return visits. He stated that during his previous trips he was always told what to do by family members and during his first two return trips he stayed with his father.
The applicant stated that he started receiving threats via [Communications app 2] in 2010 but deleted them. He did not receive any further threats until 2018. Asked about the [Communications app 2] screenshots submitted to the Tribunal, the applicant stated that he does not know the three people who sent these messages. He cannot recall if they were the same people who messaged him in 2010. I raised with the applicant that I may not give any weight to these documents as there is nothing on the face of these messages to indicate any connection with his protection claims. I also raised concerns that he would receive these messages in mid-2018 considering the absence of any messages since 2010.
I discussed with the applicant his migration history since first arriving on a student visa in January 2009. The applicant recalled that he and his wife held approximately four student visas since 2009, with the final visa ceasing in around 2016. He then applied for a Temporary Skilled Work (subclass 457) visa, which was granted while they were overseas in 2017. In accordance with s 359A of the Act, I raised with the applicant that according to the Department’s movement records his subclass 457 visa ceased on 13 March 2019, being around one week after he applied for a protection visa. I explained that this timing may cause me to have concerns about his reasons for applying for protection. The applicant responded that he waited for his subclass 457 visa to cease before applying for protection. His representative added in oral submissions that it is not uncommon for applicants to await the cessation of a valid visa before lodging a further visa application.
Asked how he became aware of a protection visa, the applicant explained that during the process of preparing his subclass 457 visa application in 2016, he told his lawyer about the threats of harm in Colombia. She enquired whether he had considered applying for a protection visa. The applicant confirmed that this occurred prior to his departure from Australia in June 2016. When later asked to clarify when he first became aware of a protection visa, the applicant stated it was in 2018, when he was interacting with the migration agent who assisted him to lodge the protection visa application.
Regarding the condolence card, the applicant stated that he received this in February 2020 from his sister. He gave it to his migration agent to submit to the Department, but it was never submitted. His agent has not returned this document to him, and he did not retain a copy. Asked why his sister would not immediately inform him of this document given its relevance to his protection claims, he stated that she did not want to worry him and did not realise the importance of this document to his protection application. He indicated that his sister was aware that he had applied for protection in Australia. Some date inconsistencies were raised with the applicant regarding the email from [Ms B]. The applicant indicated that this appears to arise from an error in the English translation and noted that the untranslated version contains the correct date. I raised with the applicant that I may not give any weight to the supporting evidence from his sister and [Ms B] considering my credibility concerns regarding his claims.
Asked why he fears returning to Colombia, the applicant stated that it is because of threats from a criminal gang which has high level affiliations with the police. Asked why he would present a threat to this gang, he stated that he believes his name is on a police blacklist, even though he never made a formal complaint regarding the gang. He confirmed there is no other reason why he cannot return to Colombia.
I raised with the applicant several concerns regarding the credibility of his claims and provided him with the opportunity to comment, as outlined below.
He claims that members of a criminal gang have continued to hold an adverse interest in him for over 10 years. However, he chose to return to Colombia on four occasions since his first departure in 2008, despite claiming that he was aware of ongoing threats from the gang. During his return to Colombia in 2016/2017 he chose to return to his house in [Town 1] and during his return trip in 2018 he stayed with his sister in the same neighbourhood in [Town 1]. He did not experience harm during any of these return trips.
He first arrived in Australia in January 2009 on a temporary visa, but did not apply for a protection visa until March 2019, despite claiming that he departed Colombia in fear for his life and that of his family. I raised concerns that he was not previously aware of a protection visa considering that during his 10-year residence in Australia he applied for multiple student visas and a Skilled Work visa, which indicates a reasonable knowledge of the Australian immigration system, and he is a well-educated person.
In so far as relevant, the applicant responded that he understands these concerns and in hindsight he would not have made the same decisions. He always had hope that he could return to Colombia, but the situation has not improved. After receiving the threat during his return to Colombia in November 2018, he realised that he had to apply for protection. Regarding his return to Colombia in 2016/2017, they only stayed at their house in [Town 1] for a few weeks. They left the house as soon as they received a threatening phone call. He also referred to general country conditions in Colombia, including the prevalence of corruption. I explained to the applicant that I would need to be satisfied that he would face a personal risk of harm as opposed to a risk that would apply to the population of Colombia generally.
The applicant’s representative made oral submissions addressing some of the concerns raised by the Tribunal and requested an opportunity to provide further written submissions on these points. I provided a period of two weeks for additional written submissions. A bundle of documents was presented to the Tribunal by the representative at the commencement of the hearing. The representative explained that these consist of other Tribunal decisions dealing with issues of delay in applying for protection and return to a person’s home country which may be relevant to the applicants’ case. I note that the bundle also includes a copy of the Australian government’s ‘Smartraveller’ advice for Colombia.
Post-hearing evidence
The applicants’ representative provided a written submission dated 29 July 2025 maintaining that the applicant faces a real risk of significant harm in Colombia. Relevant information is summarised below:
i.Regarding the applicant’s oral evidence at the hearing, it is submitted that cultural and linguistic differences should be taken into account when assessing the credibility of his claims. The applicant was [Age] years old when he first arrived in Australia, which affects his ability to communicate in accordance with Australian legal and cultural norms. This caused him to misunderstand the Tribunal’s questions and appear evasive or contradictory in his responses.
ii.The applicant was a respected local business owner and professional [occupation] in Colombia. His immediate family resided in Colombia. He would not have left Colombia in 2009 if it were not for the death threats he began receiving in 2008. His initial intention was to stay in Australia temporarily, in the hope that the perpetrators would forget about him. The continuation of the threats until 2018/2019 caused him to apply for protection.
iii.The applicant’s delay in seeking protection in Australia is consistent with his distrust of authorities due to his experiences in Colombia. It is submitted that the delay in seeking protection is not determinative in circumstances such as those of the applicant where he reasonably believed the risk of harm was temporary.
iv.Regarding the applicant’s return travel to Colombia, it is submitted that he returned for necessary reasons and hid at his father’s, relative’s and friend’s houses. He limited his exposure to avoid coming to the attention of the perpetrators. His return travel to Colombia does not in itself negate the existence of a real risk of harm. Considering the sustained and credible pattern of intimidation over a decade, including threats in 2018 and 2019, it is submitted that the applicant faces a real risk of future harm.
A Statutory Declaration of the applicant dated 29 July 2025 was submitted addressing the Tribunal’s concerns raised at the hearing. He states that he did not properly answer or respond due to his poor English and did not understand the Tribunal’s questions. Relevant information is summarised below:
i.After returning to Australia in 2019, and having been threatened in Colombia, he was fearful and consulted a lawyer who advised that he could apply for a protection visa. The protection visa application was prepared by his ‘lawyer’ and he provided some of his information via text, phone calls and meetings.
ii.In 2008 his oldest son was finishing school and they decided to arrange a student trip for him to Australia. They used an education agency to arrange his son’s student visa. Due to the threats, they decided to accompany him to Australia temporarily. His wife obtained a student visa using the same education agency. Around the time their student visas were expiring they were told by their family that the situation in Colombia was ‘still bad’ and they should remain in Australia until the risk passed. This remained the same for the next few years. They applied for further student visas on the advice of the education agency.
iii.He received an opportunity to work as [an occupation] with a company wiling to sponsor him for a work visa. He consulted a lawyer at a migration agency regarding the sponsorship application who advised that it would take two to three months to complete. While awaiting the visa, they travelled to Europe as they knew they were not safe in Colombia. However, when their European visas ceased, they were forced to return to Colombia. Because the lawyer knew they were not safe in Colombia she suggested that they may wish to consider a protection visa. This was the first time he became aware of a protection visa. He decided to apply for a protection visa after receiving the threat during his return trip to Colombia in late 2018.
iv.He returned to Colombia the first two times due to his father’s health condition. He hid between his father’s house and the hospital. Only his sisters knew that he had returned. This may explain why he was not threatened during those trips. The third time he was required to leave while awaiting the grant of his visa. The fourth time was ‘imminently necessary for assets attention’.
v.During the year they returned to Colombia (2017/2018) they spent no more than a few days living in their house. After receiving a threatening phone call, they realised the danger they were in and moved between [Town 3] and [Town 2].
vi.Regarding his sister’s delay in telling him about the condolence card, an email from the applicant’s sister dated 25 July 2025 to the applicant was submitted. She states that she travelled to [Country 5] for two months after receiving the envelope and was ‘busy with many other matters during that time’. She also ‘preferred to remain silent’ while trying to process the shock of receiving this threat against her brother. She did not want to see the applicant in the same state of panic and desperation as he was in after being threatened in November 2018. Her field is medicine; she does not know about the protection visa process or legal matters. She did not realise these documents would be important evidence for his protection visa application until he asked her to send the documents to him. Screenshots of his sister’s boarding pass and passport entry and exit stamps are provided indicating travel between [July] 2019 and [September] 2019.
An amended English translation of the email from [Ms B] was submitted correcting the date discrepancy.
FINDINGS AND ASSESSMENT
The issue in this case is whether either of the applicants engage 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 decisions 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 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.
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.[1] 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.[2]
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[2] 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.
In the circumstances I have not placed any adverse weight or drawn any adverse inferences due to inconsistencies or omissions arising from the protection visa application. Based on the evidence submitted to the Tribunal, I accept that the applicants were unaware of the Department’s s 56 or s 57 Requests and mistakenly understood that their representative had provided supporting evidence. In assessing credibility, I have given weight to the written and oral evidence submitted to the Tribunal.
While I am not bound by other Tribunal decisions, I have considered the decisions submitted at hearing, some of which are referenced in the representative’s post-hearing submissions. However, these decisions are based on different facts to the present case. My assessment is based on the particular accepted circumstances of the applicants.
Regarding the applicant’s oral evidence to the Tribunal, I acknowledge the cultural and linguistic issues raised by the representative. I agree that some of the applicant’s oral responses to the Tribunal did not directly address the questions posed. However, I do not accept that the applicant was unable to understand the Tribunal’s questions or concerns. I raised my concerns using the assistance of the interpreter and the applicant confirmed that he understood these concerns. He had the opportunity throughout the hearing to provide his evidence or seek clarification of any of the Tribunal’s questions with the assistance of the interpreter. His representative was in attendance throughout the hearing. He was also provided with additional time to submit post-hearing evidence, which I have taken into account. As outlined below, the majority of my concerns do not relate to his oral evidence to the Tribunal.
I accept the applicant’s residential, educational, employment and familial background as credible. I accept that in September 2006 while residing in [Town 1], the applicant and his family witnessed the robbery of a neighbour’s house. This is generally supported by country information which indicates that violent crime, including home invasions, is prevalent throughout Colombia.[3] I accept that the applicant attempted to intervene by firing a shot into the air while the criminals were escaping and one of the criminals fired back at him.
[3] Freedom House, Freedom in the World 2024: Colombia; US Department of State, 2023 Country Reports on Human Rights Practices; Smartraveller Travel and Safety Advice: Colombia
However, I have significant concerns regarding the credibility of the applicant’s claims that due to this incident he was targeted between 2008 and 2019 by members of a criminal gang with police connections. I have had regard to the applicant’s explanations to the Tribunal in response to these concerns, including in post-hearing written submissions . However, in the circumstances, I do not find these explanations to overcome my concerns. For the reasons below I do not accept any of the applicant’s claims relating to threats from a criminal gang since 2008 to be credible.
Firstly, I find the applicant’s return travel to Colombia since his first arrival in Australia to significantly undermine his claims. I acknowledge that there can be valid reasons for an applicant to return to their home country despite a fear of persecution, including illness of a close family member. I accept that the applicant returned to Bogota in 2012 and 2013 to visit his father who was unwell. While I do not accept that he was ‘in hiding’ during these trips, I have not placed any significant adverse weight on the applicant’s decision to return on these two occasions. However, for the reasons below I have placed significant adverse weight on his return to Bogota, and specifically to his neighbourhood in [Town 1], in 2016/2017 and 2018.
The applicant, together with his wife and two sons, returned to Colombia for over one year in 2016/2017 while awaiting the grant of a subclass 457 visa. According to the applicant’s oral evidence to the Tribunal, they went straight to their house in [Town 1] on arrival and remained there for between one month to 45 days. Subsequently in the hearing, when responding to the Tribunal’s concerns, the applicant amended his evidence, claiming that they resided in the house for only a few weeks. In his post-hearing Statutory Declaration, he again amended his evidence, claiming that they resided in the house for ‘no more than a few days’. While I acknowledge the lapse of time since these events, in the circumstances I find these inconsistencies to be of concern.
I find the applicant’s decision to return to their house in [Town 1] for any length of time to be significantly inconsistent with his claims that he and his family were being targeted at their house in [Town 1] by a criminal gang as of 2008 causing them to flee to Australia in January 2009; he was receiving threats via [Communications app 2] in 2010; and his father had warned him of ongoing dangers during his visit in 2013. According to the applicant’s evidence, they had several other accommodation options during the period of their return to Colombia, including a holiday cottage in [Town 2] and a family member’s property in [Town 3].
Despite the claimed phone threats and being told that people had been asking about the applicant during their return in 2016/2017 and receiving multiple threats via [Communications app 2] in mid-2018, the applicant chose to return to Colombia, and specifically to his sister’s house in [Town 1] (within the same neighbourhood as his house in [Town 1]) in November 2018. This was for the purpose of making arrangements to sell his house and car. The applicant acknowledged to the Tribunal that he could likely have made these arrangements from Australia. I find his decision to return in late 2018 to significantly undermine the credibility of his claims.
I find the applicant’s claim that he was subject to a verbal threat while in [Town 1] in November 2018 to be implausible. He claims that on this occasion the criminal gang knew of his arrival to Colombia, suggesting they were monitoring him. Yet he was able to return undetected in 2012, 2013 and 2016. I acknowledge his response that he stayed with his father in Bogota in 2012 and 2013. However, in 2016 he returned to his family home. He confirmed to the Tribunal that the criminal gang appeared to be unaware of his return when they made a threatening call to his house; they believed he was a tenant.
Further, I find there is no plausible basis for a criminal gang to maintain an adverse interest in the applicant since 2008 in circumstances where he never made any formal report against the gang, never directly confronted or accused the gang, and had resided in Australia since January 2009. I do not find it plausible that a criminal gang with high-level police connections would view the applicant as a serious threat or have any reason to continue targeting him. Based on the available evidence, I do not find the applicant’s response to the Tribunal, that he was on a ‘police blacklist’ to be credible.
I have considered the supporting documentary evidence. I have not placed any weight on the [Communications app 2] extracts. There is nothing in these documents to link them to the claimed threats from a criminal gang. The applicant claims that he received earlier threats via [Communications app 2] in 2010 but deleted them. I have concerns that he would delete this material yet retain copies of threats received in 2018 (both pre-dating the lodgement of the protection visa application). I have further concerns in regard to the significant gap between the receipt of threats (2010 to 2018) in circumstances where he claims the group continued to hold an adverse interest in him during this period.
Regarding the documentary evidence from [Ms B] and [Mr C] and the applicant’s sister, I have not given these any weight in terms of supporting the applicant’s claims. I have not placed any adverse weight on the date discrepancy in the email from [Ms B]. I accept this to be due to an error in the English translation. However, [Ms B] and [Mr C] claim to have been receiving threatening calls on a daily basis for almost six months in early 2019 asking for the applicant’s whereabouts. Considering my credibility concerns above, I do not consider this to be plausible.
[Ms B] and [Mr C] further claim to have received the condolence card addressed to the applicant in late June 2019. The condolence card has not been submitted to the Tribunal. Considering the circumstances with his previous representative, I am prepared to accept the applicant’s explanation for being unable to submit this document to the Tribunal. However, for the reasons above, I do not consider it plausible that the gang had any adverse interest in the applicant as of 2019, such that they would send a death threat to his house in [Town 1].
The same concerns apply to the documentary evidence submitted by the applicant’s sister. I hold further concerns with her claim that she became aware of an implied death threat toward her brother in early July 2019 yet delayed telling him of this for three months and only sent him the document in mid-February 2020. I have considered his sister’s explanations for the delays. However, considering the significance of this claimed document, not only to the applicant’s protection visa process but more broadly to his safety in Colombia, I do not find this to be convincing.
In the circumstances, I find the delay of ten years in applying for protection to be significant and to further undermine the credibility of the applicant’s claims. He claims to have departed Colombia in January 2009 due to a fear of harm from a criminal gang. As outlined above, he claims that the gang continued to target him between 2010 and 2018, yet he did not apply for protection until March 2019. I have considered the applicant’s explanation to the Tribunal for this significant delay. I do not find his explanation that he continued to hold hope that the situation would improve, and he could return to Colombia to be plausible considering his claims of ongoing targeting by the gang, including during his return visit to Colombia in 2016/2017.
The applicant claimed in his Statutory Declarations to the Tribunal (December 2022 and July 2025) that he was unaware of a protection visa until 2019. However, in his oral evidence to the Tribunal he stated that he was first told about a protection visa in 2016, prior to departing for Europe in June 2016, in the course of preparing his subclass 457 visa application. He later stated that he first became aware of a protection visa in 2018. In his post-hearing Statutory Declaration, he indicated that a protection visa application was suggested to him during their return to Colombia in 2016, due to safety concerns. Based on the available evidence, I find that the applicant was expressly made aware of a protection visa sometime in 2016. He claims to have received verbal threats and been told that people were looking for him in [Town 1] during his return trip in 2016/2017 and received threats via [Communications app 2] in 2018, yet still failed to apply for protection until March 2019.
While I have not placed significant adverse weight on this issue, in conjunction with my concerns above, I find the timing of the protection visa application, lodged around one week prior to the cessation of the applicant’s subclass 457 visa, to raise further concerns about his motivations in seeking protection in Australia.
I have considered the July 2025 support letter from a parish priest. I have not given any weight to the statements in this letter regarding the applicant’s experiences in Colombia, considering these are based on information provided by the applicant. The letter refers to the applicant experiencing some mental health difficulties. No medical evidence of any mental health issues has been provided to the Tribunal and this was not raised with the Tribunal by the applicant or his representative. There is no probative evidence before me to indicate that the applicant suffers from any mental health condition that would affect his ability to provide evidence or would cause problems for him on return to Colombia.
I have also considered the January 2023 email from a radio producer responding to questions about crimes involving the Colombian police. This does not directly relate to the applicant’s claimed experiences in Colombia which form the basis of his protection claims. While I accept that there are cases of police involvement in criminal activities in Colombia, I do not consider this document to amount to probative evidence in support of the applicant’s particular claims.
Considering all of the above, I do not accept that the applicant, his family members or tenants of his house in [Town 1] received any threats from a criminal gang, including from police affiliated with such a gang, in connection with the 2006 robbery of a neighbour’s house or for any other reason.
Refugee and complementary protection assessment
I find the applicants’ ‘home area’ or place or likely return to be Bogota or surrounds (including [Town 1]). Considering my findings above, I am not satisfied there is a real chance that the applicants will face any harm from a criminal gang affiliated with the police in the reasonably foreseeable future on return to Bogota.
I have therefore considered the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ removal from Australia to Colombia, they 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 for complementary protection has been held to be the same as the ‘real chance’ threshold under the refugee criterion.[4] For the same reasons outlined above, I find there to be no real risk of the applicants suffering significant harm from a criminal gang as a necessary and foreseeable consequence of their return to Colombia.
[4] MIAC v SZQRB (2013) 210 FCR 505
The applicant raised with the Tribunal concerns about corruption and generalised violence in Colombia. Considering reliable country information, I accept that these issues are problems in Colombia. However, I find these to be risks faced by the population of Colombia generally, rather than the applicants personally.
The applicants have not raised any other claims to fear harm in Colombia and I find that none arise on the accepted facts.
Conclusions
For the reasons given above I am not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicant protection visas.
Date of hearing: 17 July 2025
Representative for the applicants: Ms Dan Jebsen
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.
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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.
…