2208921 (Refugee)

2208921 (Refugee) [2024] AATA 4322 (15 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2208921
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Rosa Gagliardi
DATE:15 August 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 August 2024 at 12:33pm
CATCHWORDS
REFUGEE – protection visa – Colombia – political opinion – opposition to the peace agreement with the guerrilla group ‘Fuerzas Armadas Revolucionarias de Colombia’ (FARC) – protest activities – police detention – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 June 2022 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Colombia (a matter the Tribunal accepts based on the material before it) applied for the visa on 26 October 2020.
The delegate refused to grant the visa on the basis that there appeared to be inconsistencies in his evidence and found that Australia did not owe protection obligations to the applicant as outlined in s.36(2) of the Act.
The applicant appeared before the Tribunal on 5 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J of the Act, and there is a real chance that if the applicant returned to Colombia now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and whether he would suffer serious harm. Alternatively, the Tribunal must assess whether the applicant meets the complementary protection criteria.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
In his application form the applicant asked that the Department refer to his statutory declaration dated 26 October 2020.
The applicant explained that his de facto partner (now his ex-partner) did not wish to be included in his protection claims because her son still lived in Colombia and was missing them. It was explained to them (unclear by who) that once the application for the protection visa was lodged, any person included “would not be able to return to Colombia for years”. His de facto partner decided not to be included because her son needed her.
In terms of himself, the applicant declared that during his residence in his local area he worked as a [Occupation 1] in the [specified] industry (2014 - 2019). Between the years 2012-2016, Colombian President Juan Manuel Santos maintained his goal of ‘Signing the Peace Agreement’ with the guerrilla group ‘Fuerzas Armadas Revolucionarias de Colombia (Colombian Revolutionary Armed Forces – FARC). Although a ‘Referendum was unsuccessful’ and the Colombian people voted “NO”, the president submitted it to the Supreme Court for approval, to obtain the desired result, that is, the agreement was approved.
The applicant also declared:
By the ‘previous summary report’, a group of independent colleagues came together to initiate a ‘peaceful protest against that legal decision; which we considered ‘was against the public interest’. In our ‘independent opinion’ the banner to the public said:
[Specified text redacted]
The group was made up of 5 people; the day we were going to start our first protest,
two members of the group did not attend, instead of them, the police entered the apartment from where we could start the protest in direction of the xxx Governorate offices xxx we were detained and interrogated by Intelligence officers. They kept me in custody for three days. From the day I was released, I was the object of being ‘followed by paramilitary squads’ in the service of former President Alvaro Uribe who is politically linked to the last two Colombian presidents (Juan Manuel Santos and Ivan Duque Marquez). I never saw again the rest of the three we were detained and investigated; they never answer their mobile cells again. For the past three years before I travelled to this country, I remained hidden which severely affected my job as a [Occupation 1].
In our political view, the negative effect of revolutionary groups has caused the forced displacement of farmworkers in particular, led, to the loss of agricultural production, human capital, millions of farmers in agricultural production were not required in urban contexts, and limited access to financial markets were affected.
For their part, the people who belonged to the armed groups, and decided to rejoin civilian life, face barriers in training and job seeking, since they had years without formal work. In addition to the above, mistrust and stigmatization with respect to a demobilized person remains one of the main factors that prevent them from being included in the value chain of companies.
In short, the armed conflict we have experienced in the country for decades perpetrated the conditions for victims and demobilized people to continue to be disadvantaged to other people in areas such as health, income, education, and labor rights.
…

Why this applicant left that country
Following the incident of my arrest for ‘wanting to initiate’ a ‘peaceful protest’ against a ‘judicial decision’ against the public interest of middle-class workers. For reasons of my middle-class hard-working status, in accordance with my ‘civil and political rights’ I wanted to peacefully express my opposition to this ‘political strategy’ of a ‘peace agreement’ with the FARC at the expense of the Colombian Working People.
In August 2018, Mr Ivan Duque Marquez was elected president of Colombia (2018-2022); in October 2018, I participated in a student march organized by the [named] University of xxxx; university students asked the government for increased financial aid for public universities across the country. I considered this protest fair and decided to support them for my previous stance on the ‘pro-Peace Agreement tax on benefit of demobilized guerrilla members’.
Unfortunately my involvement resulted in my arrest, I was taken to a police station, once again I was questioned by a ‘counterintelligence officer’ who cautioned me that I had a history related to organizing protest marches in the past. For this reason they felt I would be involved in the participation of the current protests (2018); the officer ‘warned me’ that if in the future I am ‘arrested in a protest’ I would suffer serious experiences, such as the experiences of other arrested human rights that he already released to me. From that date, I remained ‘psychologically frightened’ and afraid of being arrested later and would end up ‘as a missing person’.
At the end of September 2019, I was informed that the Duque Administration was being very strict against the organizers or the’ human rights activists’. For political reasons of future protests and social insecurity across the country, I felt compelled to leave Colombia. Feeling totally frightened to being arrested during the event of a protest against the government ‘For political REASONS’ I began to manage my departure from the country, in a travel agency I was told that there was a possibility of obtaining a student visa, Australia could be successful its respective processing. This is how I got to this country, fleeing Colombia for fear of MY FUTURE UNCERTAIN FOR POLICY REASONS IN XXX, because of my work as a [Occupation 1] [in public].
The applicant explained he had experienced harm in his home country as the police detained him in breach of his political rights to promote a peaceful protest regarding the accord between the Colombian government and FARC (Revolutionary Armed Forces of Colombia). A detective officer was responsible for the psychological mistreatment he received while in detention. The applicant also wrote that he received psychological mistreatment through videoclips of physical torture applied to other detained political activists in the past. The intelligence detective told the applicant what would happen to him if caught organising or participating in a protest again.
The applicant did not seek help because it involved the Colombian authorities. He did not try to seek to move to another part of the country for his safety because the incident of his detention by the police was for trying to organise a peaceful protest against the judicial decision endorsing the Accord between the government and FARC. The applicant wrote that it was not viable to move to another area of Colombia as his name had been recorded into the internal data base managed by intelligence officers of the Colombia Police Force that operate nationally.
The applicant stated he feared being psychologically mistreated by the government authorities for reasons of his independent political opinion in the past. Because of his internal record held in the database system regarding his participation in political protests he would be detained and investigated “at my arrival to the airport”.
He expressed the view he would be harmed or mistreated on return to Colombia and would receive psychological or inhumane mistreatment as shown to him through videoclips by the intelligence detective officer.
The applicant stated he did not think the authorities of his country would protect him because the perpetrators of the persecution were the government authorities. The applicant also stated he could not relocate within his country because the government authorities could persecute him within the whole Colombian territory.
In a letter dated 27 April 2022 the Department asked the applicant to provide additional information and clarification on certain points. The applicant addressed these concerns by initially stating that it was very difficult to submit a satisfying response to a broad meaning (range?) of issues and that the word “plausibility” was an ambiguous term. The applicant also stated that some of the remarks by the Department indicated personal opinions and assumptions.
The applicant also took issue with the Department’s comment that the applicant had not claimed to have been harmed during the arrest, to which the applicant responded that while he did not experience physical abuse, he had suffered psychological harm while being detained and was not permitted to contact his family or friends while in detention or to get the advice of a lawyer. He also stated he could not relocate within Colombia because if a federal offence was committed even in Australia, the federal agency would go after the person, not the state one. The applicant claims he was intimidated and fearful of being physically injured, due to their systemic monitoring through ‘unknown informant networks and civil paramilitary groups’. The fear affected his work as a [Occupation 1].
The Department also wrote to the applicant that there was no reason to believe that his fellow protestors were killed or harmed (as the applicant believed) given he himself was not harmed. The applicant highlighted he would have been happy to have attended an interview (but was not invited to one) but that he would refer to his comments regarding the serious psychological harm he had suffered.
The Department also highlighted that the applicant stated that after his first arrest he remained in hiding for three years until coming to Australia, however, he participated in a second protest and continued to work as a [Occupation 1] [in public]. The Department did not consider it plausible that the applicant could be in hiding from the authorities and continue to protest and be a [Occupation 1] [in public]. In response, the applicant explained that relocating and hiding were not the same thing.
The Department also raised the issue of the applicant having lodged his Protection visa a year after arriving in Australia and that this could raise concerns about the genuineness of his claims. The applicant responded that in Colombia he was in [a] semester of his university degree in [Discipline 1] and that one of the core subjects included Level 3 English. The applicant began to gather information about overseas English courses rather that learning English at his home country, and he and his ex-de facto partner came to Australia.
The applicant further explains that in February 2019 he applied for a Colombian passport which was issued on [date] 2019. In June 2019 he applied for a student visa granted on 3 October 2019. He and his ex-partner then arrived in Australia [in] November 2019, and were studying for one year. The applicant finished his English studies on 2 October 2020, which he finished for the purposes of his university studies; “Therefore my intention for coming to Australia was for studies purposes not for protection”.
The applicant also recounts that the international airports worldwide were locked down in March 2020 and it was not possible for him to return to Colombia for reasons beyond his control. However, there was a [protest] [in] July 2020, in which his brother participated, and he was detained and investigated. During his detention his brother told his captors that his detention was a mistake because the paramilitary group who detained him believed he was the applicant. Then he was questioned about the applicant and wanted to know where he was. Currently, the applicant’s brother was in [Country 1] in the process of seeking refugee states. The applicant wrote that this detention of his brother in July 2020 is an explanation for the delay in applying for the visa.
The applicant also submitted country information regarding the operations of FARC in Colombia and concerns about them being accepted in local communities and how the ex-combatants would be attacked by criminal actors and former paramilitaries and BACRIM (criminal gangs). Some other information is in Spanish and untranslated.
Hearing with the Tribunal
The applicant stated that his parents in Colombia were still alive. His mother was retired but his father owned a [business]. He had one brother who was currently seeking asylum in [Country 1]. The applicant confirmed he had been a [Occupation 1] in his home area and the surrounding towns. He stated that his family had enough money to pay for all their expenses.
Asked if his father had any political affiliations, the applicant responded his father had been a mayor of a town a long time ago but now he just worked in the [business]. Asked when he started to have a political consciousness the applicant stated between 2012 to 2016 when President Santos was in power. He conducted a referendum for a peace agreement with FARC. The people voted no. The Supreme Court did the President’s bidding and approved the peace agreement, nonetheless.
The agreement gave certain privileges to the paramilitary groups in the form of tax concessions that the community did not have, such as concessions for petrol and food items. He deemed this unfair. It was not fair to give these benefits to these armed groups who had terrorised and brought kidnappings to the Colombian community. Asked how the accord affected him personally, he stated that it affected his progress at work, he worked for commission and the increase in taxes of food and petrol was affecting business.
The Tribunal noted that the applicant and his parents were able to fund the applicant’s studies in Australia which is a major economic undertaking so the Tribunal might find that the applicant had no reason to become politically active as they were comfortable. The applicant stated this was his political opinion because his work was affected by what happened to the Colombian people, when prices went up. The Tribunal noted, however, that he and his family were not reduced to simply surviving. The applicant was able to undertake studies abroad, possibly considered a luxury by some in the Colombian community. The applicant stated that he came because he needed English language studies to complete his studies in Colombia. He stated that he and his ex-partner had savings they used to come to Australia.

The Tribunal asked whether his partner was of the same view as he was in terms of the agreement between the government and the ex-guerrillas. He stated that she supported him in his decisions.
The Tribunal asked why the applicant’s brother sought refuge in [Country 1]. The applicant stated that in the pandemic in Colombia he participated in a protest, and he was captured and interrogated by a right-wing group. He asked why he was being detained and the armed group said it was a mistake and that they were looking for the applicant. They asked where he was, but his brother said he did not know anything about the applicant.
The Tribunal asked exactly when his brother had been interrogated and the applicant stated in July 2020, in the middle of the pandemic.
The Tribunal stated that it had read the applicant’s statements, but the account was very vague.
The Tribunal again asked when he developed his political consciousness exactly, and he stated it was during the referendum held by the President for a rapprochement with FARC. There he started with a peaceful protest with some colleagues, but they gathered in an apartment and the police came and captured them. The intelligence police captured and detained them and said they did not want any protests and held them for three days until the protests were over. The Tribunal asked exactly when it might have been, the month and year, and the applicant stated at the start of April 2016. The Tribunal noted that to engage in a protest he needed to talk to other like-minded people and was he an organiser, for example? The applicant responded that there were five colleagues; two did not arrive and so three were left to start the protest. The Tribunal asked how he protested. He stated that they did not get to protest because the police arrived and captured them first.
The Tribunal noted that protesting as three people would have had minimal impact. The applicant stated that the three colleagues wanted to start a peaceful march, but their freedoms and political rights were violated. The Tribunal asked whether there were other demonstrations under way when he and his colleagues were going to undertake this smaller protest. The applicant responded yes - that day there were state level protests. The units gathered at the government office and there were protests underway. The Tribunal asked whether he and his colleagues had not thought to join the bigger protests so as not to be so visible. The applicant stated no, they had agreed to get together to prepare the placard to join the larger protest, but their freedom was taken from them. He stated the placard said no to the demobilization of ex-guerrillas. No to the peace deal with the ex-guerrillas. Yes, to peace through projects. No to increases in taxes to favour the ex-guerrillas who were murderers of the people.
The Tribunal asked whether the applicant’s family had ever personally been affected by these guerrillas (FARC). The applicant said they affected his family by giving ex-guerrillas benefits, such as enabling them to enter political discourse, trying to legalise drug trafficking and placing taxes on the Colombian people.
The Tribunal asked how the police knew where the applicant and his colleagues were preparing to protest to enable them to come and detain them. He replied the truth is he did not know. They arrived that day and captured the three of them. Two colleagues did not attend. The Tribunal asked whether it could have been these two colleagues who might have tipped off the police about the impending involvement in the protest. The applicant responded he was not sure. He was not stating that. He was just stating that they did not turn up that day.
The Tribunal asked whose apartment they met at. He stated it was one of the three colleagues. The Tribunal asked what the names of the two persons he was preparing with for the protest were. He replied they were [Mr A] (sp?) and [Mr B] (sp?). The Tribunal stated it was having difficulty understanding why, if there was a big demonstration underway, the police chose to focus on three people (himself and his colleagues) instead of dispersing the larger demonstration. The applicant stated he did not know. He only knew that they had organised everything a week prior for the five of them to get together but only two arrived. Asked if he knew what happened to these two persons who did not attend, the applicant replied that he did not know. The Tribunal remarked that on return to work it would have been evident that his colleagues were missing. He stated that due to that march he never saw them again. The Tribunal asked whether anyone had reported them missing. He stated that for his part he had been told not to talk to anyone.
The applicant confirmed he had come to Australia in November 2019. He had concluded his English studies a year later.
The Tribunal prompted the applicant to say whether he could recall when precisely he was taken away from the apartment by the police. The applicant stated it was either 1 or 2 April 2019. The Tribunal encouraged the applicant to provide his account in as much detail as possible and to set the scene for what happened precisely step by step. The applicant stated they were preparing the placard they were to use in the protest and the flags of Colombia ready to join the protest. The Tribunal asked when this might have been. He stated it was 8.00am or 9.00am. The Tribunal asked whether he had taken a day off work that day to protest. He replied it was a Saturday on the weekend. That’s when they decided to call the other two who were supposed to join them but when the police arrived and captured them. Asked how many police there were, he responded it was five officers from contra-intelligence. They said they would detain them and hold them until the protest was over. They took their ID cards and telephone numbers. The Tribunal noted that the applicant was not the organiser of the large rally so why would they focus on the applicant and his colleagues. He stated he did not know – they just wanted to start a pacific march. The Tribunal sought clarification because the applicant had previously stated that they wanted to join the larger group demonstrating, but now seemed to indicate that he and his colleagues were initiating the protest.
The applicant stated that day there were demonstrations across the region, and they wanted to join having a smaller march “just the five of us”. The Tribunal expressed confusion because previously the applicant had stated they were going to join the larger march, but he seemed to have revised his account to state that his intention was to have a smaller march comprising five people. The applicant stated that they just wanted to have this small group join the big group but with their own placards, their own messages, and their own thoughts saying no to the peace deal.
The Tribunal asked what the police said to them when they came to the apartment to arrest them. Did they knock, for example? The applicant stated yes. They arrested them and detained them for three days. They put handcuffs on them and kept their eyes covered for three days. They took him to a different place to the others. He did not know what had happened to the other two – all he knew is that they took him to a different place. The Tribunal asked whether all three were handcuffed when they came to arrest them and he said yes, the three of them were captured. The Tribunal encouraged the applicant to advise what the police were saying to them while they were being detained. They said that they were being detained for organising marches and would be detained until the marches were over.
The applicant clarified that at that stage he was living with his former partner and her son.
The Tribunal asked the applicant again whether the police said anything in particular to him. He said no, they asked for their ID cards and their mobile phones and that was it. They just said they would be detained until the marches in the region were over.
The Tribunal asked when they were blindfolded exactly. He stated when they took him out of the apartment – he did know what had happened to the other two. The Tribunal asked whether there was anyone around who might have witnessed him being marched out of the apartment blindfolded. The applicant stated he did not know. He was blindfolded. They took him out and put him in a police car. The Tribunal asked how the applicant knew it was a police car if he had been blindfolded. The applicant stated that they moved him in a car, and he felt he was being transferred in a car. Asked how long the drive took approximately, he stated he did not know, maybe 30 minutes. The Tribunal asked the details of the conversations in the car. The applicant responded they just said they would detain them until the marches were over and warned them not to say anything to anyone and to act as though nothing had happened.
The Tribunal observed that the applicant had stated that he had been blindfolded for three days. He confirmed this. The Tribunal asked what his partner did when he did not go home that night. He said she was very worried about him and asked around including his parents but when he was released, he did not tell her anything about what had happened. The Tribunal stated that his former partner would have asked him where he had been and why he had not called her. The applicant responded she had asked questions, but he told her he had stayed with friends. The Tribunal asked whether she was angry with him for not having communicated with her for three days. He responded, “yes”.
The Tribunal asked the applicant to go back to the three days when he was incarcerated. The Tribunal asked the applicant to tell it about the scenario of the incarceration which would have been very traumatic. He responded it was just a room with four walls. A bucket for his needs and a mattress. The Tribunal noted he would not have been able to see the four walls, but he stated he could touch and walk. His hands were tied in front and his eyes were covered.
The Tribunal asked whether he had been fed at all. He confirmed that was the case. Asked what he had been fed he replied bread, sandwiches, and juices.
The Tribunal noted that three days was a long time to be in that situation and could he describe how he was feeling and what he was doing during that time from morning to night. The applicant responded he was just thinking and hoping the marches would end. And yes, on the third day they freed him. All he was thinking was to get out of there. The Tribunal asked whether he was harmed at all, apart from being deprived of his liberty and keeping his hands cuffed. The applicant responded no, only the time being tied up and his eyes being covered and having to use the bucket for his needs and waiting for the time to pass. The Tribunal asked whether it was a detention centre, a police cell or a prison he was held in. He stated he did not know. It was just him in the room and he could not hear anything. The Tribunal noted that he had stated that it was roughly 30 minutes away from where he was living, so was he aware of any facility that was around 30 minutes away. The applicant stated that he did not know where they took him. He said there were many residential areas and police stations, but he did not know exactly where they took him.
The Tribunal asked the applicant what they said to him when they released him. The applicant stated that they told him not to talk about anything and not to ask about the other people and not to inquire about anything. The Tribunal asked whether he had signed a document to be released. He stated no. Asked if he had to make a payment to be released, he stated that he did not have to.
The Tribunal asked the applicant whether there was any evidence he was relying on to support his claims he was arrested in the manner described. The applicant stated no because all the details and data were erased from his mobile phone and because they told him not to place any complaints with the police or anyone else.
The Tribunal asked whether there was any media coverage of these claimed events. The applicant stated no, there was no coverage at all.
The applicant stated when he was released, he was very scared and was followed by paramilitary working with police. The Tribunal asked whether he had continued with his business as a [Occupation 1]. The applicant added that he was very fearful, and this affected his work greatly; he did not go to supermarkets or shops anymore. He stayed home to make sure he was still [working]. The Tribunal asked if the applicant was a [Occupation 1] how he could work from [home]. [Details deleted]. The Tribunal noted that he seemed to be a [Occupation 1] that was not registered. And the Tribunal noted that the Department had recorded that he had stated that he worked [as an Occupation 1] [in public]. The applicant stated that they worked for a [company]. [Details deleted]. The Tribunal asked whether he [was among the public]. The applicant stated that yes, [deleted]. He had to go from one suburb to [another].
The Tribunal put to the applicant information pursuant to s.424AA about the structure of the business and its name thinking there might have been an inconsistency with his application, however, the Tribunal noted that his claims about his work were consistent and that there was no discrepancy about his role and the structure of the business and the Tribunal would not be placing adverse weight on this matter.
The Tribunal asked the applicant how he knew the paramilitary were following him. He stated that they followed him to a shop he was visiting, and they told him he was under their surveillance and that he should not say anything about what had happened. They said they knew him from his recent incarceration. Asked, the applicant stated there were two paramilitary officers involved. The Tribunal asked whether he could recall when this happened, and he said after he was freed. That was why he could not say anything, and he could not inquire about the other two people, and he could not present any claims or complaints.
The Tribunal noted that the applicant had gone missing for three days and asked what his employer had said to him on return to work without explanation as to where he had been. The applicant stated it was a weekend. The capture happened on a Saturday, and he was released on the Monday, and he went to work afterwards. The Tribunal asked what time he might have been released and the applicant responded about 5am or 6am; early. The Tribunal noted that in effect he had not been detained for three days. He had only been detained for two full days. He stated it was half a day on Monday. When the Tribunal reminded him he had stated he was released in the early morning, he responded it was only part of Monday he had been detained.
Asked if he could recall the date the paramilitary had threatened him, he said it was after his release, but he could not recall the precise date. Asked if there was anyone around at the time, the applicant stated that it was at the entrance of [a location] but there was no one there that he knew. He was very scared, and he had to hide, and he could not go out on to the street. Mostly he worked from home and would only visit the clients once every fortnight, at a maximum, twice a month. Asked if his employer was comfortable with that arrangement he stated yes, he agreed. Asked what excuse he used for working from home, he just told them that he needed to study and would work from home.
The Tribunal noted that if the applicant was largely at home, the paramilitary and counterintelligence police could go there at any time to harm or threaten him, but they did not. The applicant stated yes, they could do so. What they did not want was for him to go to the police and to inquire about the other two people or to make a complaint. The Tribunal noted that he could have lodged a complaint over the phone with the police and the paramilitary would not know. The applicant stated he was so scared and psychologically affected that he did not want to do such a thing over the phone, and he did not want to put his life at risk.
The Tribunal noted that the applicant had referred to his psychological state and had he sought assistance in either Colombia or Australia. He stated he did not. The Tribunal noted that the applicant in studying in Australia might have had access to student counsellors or those working for the welfare of international students. The Tribunal asked whether he had not thought to seek assistance and advise that he had had such a traumatic experience in his home country. The applicant answered no because initially he was to come to Australia for just a year to study. His plan was to return home to Colombia, and he did not think he would be applying for a protection visa. What made him apply for a protection visa, was that [in] July 2020 his brother took part in a protest and was captured by the paramilitary and was asked where the applicant was. That made the applicant fear for his life in Colombia and that was what prompted him to investigate getting a protection visa in Australia. The Tribunal stated that given he claimed his brother was interrogated would that not have given him the impulse to go to a doctor and say that he was not well because he had been through a terrible experience and now his brother was also in trouble. The applicant stated no, the only assistance he received was from the gentleman representing his case.
The Tribunal put to the applicant under s.424AA of the Act that in 2020 when he claims his brother had been questioned by the paramilitary, he went to the Colombian Embassy in Canberra to obtain a security clearance showing he had no adverse history with the law enforcement authorities in Colombia, even though the Tribunal conceded it was in Spanish and the Tribunal was not able to read it entirely.
The Tribunal stated that this information was relevant to the review because if it was the case that the applicant had had such an adverse history with the Colombian authorities as claimed, and his brother was also in trouble with the paramilitary, he would not have presented himself to seek a security clearance.
The Tribunal noted that if it relied on this information, it would find that if the authorities wanted to punish the applicant, they would not have issued him with a security clearance because the authorities would not have wanted to facilitate the applicant remaining in Australia to avoid punishment in Colombia.
The applicant declined a break and stated he did not seek a security clearance from the counterintelligence police - it was only the normal police who provided the information.
The Tribunal noted, however, that the applicant had told the Department (as reflected in the Departmental decision) that his name had been added to a national database that is operated by intelligence officers of the Colombian Police Force. The Tribunal asked whether he had evidence of such a recording of his name and the applicant stated no, only the police who captured him had a record of that event. The Tribunal asked the applicant whether he meant that the ordinary police would issue a police clearance because he had not engaged in any criminal activity. His political history would not be reflected in that clearance. The applicant confirmed this was the case.
Asked what happened next in his life, the applicant responded, he was involved in a second march in 2018, when the applicant was captured and participated in a march organised by students at university. The protest was to ask for more support for public university students and as he was a student, he wanted to support this cause.
The Tribunal noted that he had had a terrible experience being detained for three days and did he not fear protesting again. The applicant responded that because he was a student, he wanted to support this cause. Now there was a different President and a different cabinet and therefore he thought that was in the past. The Tribunal asked whether the new President supported the peace agreement with FARC. The applicant responded he did not know that President’s stance on the agreement, but he was from the same right-wing party. The Tribunal noted, however, that the applicant took his chances to heighten his political profile by protesting in public. The applicant stated that he knew the President was from the same party but since his arrest, there had been a change, and a different Minister for Justice was in power. He thought what had happened to him was in the past.

The Tribunal asked the applicant to detail what happened to him as a result of his involvement in this protest. The applicant stated that he was captured and taken to a police station nearby. He was interrogated and they asked him for his ID and his phone number. They checked his records and saw he had a prior history of provoking and initiating marches. The police told him that he already had a record as someone who incited marches and if he participated again, the same thing that had happened to other activists in videos shown to the applicant, could happen to him. The Tribunal asked whether he had a copy of such videos, and he responded no because the police showed these to him from the officer’s phone.
The applicant was captured for some time while they showed him the videos and then he was released. That was in October 2018 prior to getting his student visa and then he came to Australia. The Tribunal noted that it was quite fortuitous that his student visa should have come through just as he needed to flee Colombia. The Tribunal stated that perhaps nothing adverse had happened to him in Colombia and he just came to Australia normally as a student. The Tribunal stated it seemed too much of a coincidence that his student visa would have been approved just as the claimed problems with the authorities were starting to escalate. He stated he started the application process some time before coming to Australia, but it was not approved quickly because he and his former partner had to put together documentation. They had to leave his former partner’s son in Colombia, and they did not plan to stay in Australia. They had to demonstrate that they had roots in Colombia and would not remain here. The applicant explained that as they were not married, they had to provide evidence of them being together. In October 2019 they got the visa for one year.
The Tribunal also noted that it was a coincidence that he waited until he finished his studies in Australia to apply for a protection visa. The applicant responded that sadly in the year 2020, borders were closed so he could not return to Colombia in October 2020 when his visa expired. His brother was kidnapped in July 2020, and it took him a while to put everything together (his paperwork).
The Tribunal noted that his former partner was initially included in his protection visa application. He stated yes but she had to return to Colombia to see her son. The Tribunal asked whether his ex-partner had experienced any harm on return to Colombia because of his profile in Colombia. He stated no but he lost contact with her in 2020, and he did not know anything about her. Asked about his parents, the applicant confirmed they had not suffered any harm, only his brother. The applicant was asked whether he had any evidence that his brother had submitted an application for refugee status in [Country 1]. He responded yes, he had evidence that the process to seek refuge was underway. The applicant stated that his brother had handed himself in at the border in [Country 2].
The Tribunal asked when the applicant’s brother might have lodged his protection visa application in [Country 1]. He responded in about February/March 2022.
The Tribunal noted that in his statutory declaration he had declared he had been psychologically mistreated, and he believed he would be detained and investigated at the airport should he return to Colombia. The Tribunal noted that if he would be arrested on return, why did the authorities let him escape the airport if he was considered a threat to the state. The applicant stated because he left on a student visa on a student visa with his partner. The Tribunal noted that either he was on the database, or he was not. It did not matter the reason he was leaving Colombia. The applicant responded that his details were in the private counterintelligence database due to his political views. The Tribunal asked whether he did not consider that law enforcement authorities in Colombia would share information. The applicant replied that he did not know. The Tribunal stated that the paramilitary was above the law and that they could have prevented him leaving Colombia given he was a political agitator. The applicant stated that in Colombia in his home area the former governor was condemned for having made a pact with para political forces to reach the position of governor. For that reason, it is very common for paramilitaries to have positions in civil spaces.
The applicant stated that in the o news recently in Bucaramanga, 30 people were reported missing but the government was not providing any clarification as to what happened to them. The processes of missing people were very slow to resolve, and people were deemed missing indefinitely.
The applicant stated that he was working in Canberra in [Occupation 2] in [industry]. He also worked as a [Occupation 3] part-time. He stated he had been working for 3 years and that if this application failed, he could investigate sponsorship arrangements as his boss liked his work.
The Tribunal asked the applicant to consider carefully what he feared on return to Colombia. He responded he feared for his life and safety, not just entering Colombia, but entering any part of Colombia because he was on the internal database. He feared he would be one more missing person that the government would not give any explanation about, as this was happening more and more in cities in Colombia. He would be harmed.
The applicant then asked whether independently of the outcome, he could have some time to organise all his affairs in Australia.
The Tribunal asked the applicant whether he could lodge his brother’s asylum claims to [Country 1] for it to corroborate that his claims were linked to his. The applicant stated that he had this information, and he would make it available to the Tribunal by the close of business. At the time of writing this decision the applicant has not submitted any such documentation.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must at first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Overall, the Tribunal found the applicant’s account general and undetailed. The Tribunal would not expect an applicant who claims to have undergone severe trauma to be able to have exact recall of dates and events. On the other hand, an applicant is expected to give realistic detail about their experiences providing names of significant protagonists and a believable context in which events occurred. While the applicant’s unspecific account at hearing is not determinative of the review, the Tribunal does find that it is consistent with his inability to explain why precisely he became a political dissident and after having suffered confinement in a cell of some sort, then decided to protest again in a second protest not having regard to the consequences, simply thinking it was a new Prime Minister and a new Cabinet and therefore the ramifications might not be severe.
The Tribunal finds that throughout, the applicant’s account strained credulity and not least because the applicant was not able to give a persuasive narrative about why he wanted to join a political movement against the peace agreement with FARC, only stating that the ex-guerrillas were given taxation benefits which impacted his work and that he was against them being integrated into the legitimate political sphere in Colombia.
The identity of the applicant’s four colleagues who he claims wanted to protest with him are also vague and the applicant provided little detail about their characteristics and why they might have wanted to join with the applicant to voice their concerns over the peace deal.
The Tribunal accepts that Former President Juan Santos, first elected in 2010, began a new peace initiative with FARC in 2012 and after four years of negotiations, his government signed a peace agreement with Colombia’s main paramilitary force, FARC in November 2016.[1] As such, FARC agreed to end their armed campaign and move their fighters into UN monitored camps where they would disarm in phases over 180 days.[2] According to the Economist, the prior conflict was “the longest-running domestic conflict in the western hemisphere, killing over 200,000 people and displaced around 7 million.[3] Justice for victims of the conflict was one of the main elements of the peace deal in which Colombia would establish a transitional justice system (JEP). Special tribunals would adjudicate war crimes and other atrocities committed by the rebels as well as paramilitary groups and government security forces. Rural development was also a cornerstone of the agreement and FARC agreed to stop drug trafficking to wean Colombia’s rural farmers off coca.[4]
[1] ‘Human Rights in Colombia and implementation of the 2016 peace agreement’, published 12 April 2022, UK Parliament, House of Commons Library, Human rights in Colombia and implementation of the 2016 peace agreement - House of Commons Library (parliament.uk).
[2] ibid.
[3] ibid.
[4] ibid.
The Tribunal also accepts that the peace deal was initially narrowly rejected by the Colombian people in a referendum in 2016, and that President Santos instead of putting revised changes to the agreement (to satisfy some opponents of the deal) to the people, ratified it through Congress, where the president had a governing majority.[5] The new deal still contained the most unpopular points of the previous accord, being seats in Congress for FARC, and many Colombians saw the transitional justice system as being too lenient.[6]
[5] ibid.
[6] ibid.
One of the most outspoken critics of the FARC peace deal was former President Alvaro Uribe (2002-2010) who founded a new political party, the Centro Democratico in 2013, largely on the platform to oppose the peace process in the 2014 elections.[7]
[7] Ibid.
The Keogh School of Global Affairs, KROC Institute for International Peace Studies, University of Notre Dame, which monitors such accords, wrote of its implementation:
It does not put in place a revolution: there is no land reform, it doesn’t touch the security forces, and it doesn’t raise taxes on the wealthy. But it offers a blueprint for how to deal with communities – most of whom had almost no prior contact with their government – to address their isolation, poverty, uncertain land tenure, dependence on illicit economies, and lack of protection.[8]
[8] ‘A Long Way to Go: Implementing Colombia’s peace accord after five years’, 23 November 2021, WOLA, Advocacy for Human Rights in the Americas. A Long Way to Go: Implementing Colombia’s peace accord after five years - WOLA.
Nonetheless, the implementation budget had been falling behind its 15-year target and while demobilization was largely successful, reintegration was flawed but progressing.[9] Implementation of the accord is a complex and shifting canvas. The accord’s opponents, primarily on the political right, came to power in August 2018, and allowed many commitments to languish.[10] The administration of President Ivan Duque (2018-2022) disputed this however, stating “all implementation has practically taken place in the last three years”.[11]
[9] ibid.
[10] ibid.
[11] ibid.
At hearing, the applicant was not able to delineate any of the significant milestones of the agreement such as its historic signing in 2016, and the way that accord had developed over the years. The Tribunal did not expect an encyclopaedic knowledge of the history of the agreement by the applicant. Nonetheless he demonstrated limited knowledge of the trajectory of the accord – something which he claims gave him impulse to protest in public and make his opposition to the accord known publicly, and to the authorities in the first instance. The applicant’s motivation for being politically active was not realistically made out. It would be reasonable to expect that had the applicant had a genuine aversion to this accord he could speak about it freely and demonstrate that he had a sound knowledge of its goals and development to the present.
The applicant was unable to provide a realistic account of why it was important for him to oppose an agreement which had as its central goals the demobilisation of violent military groups to end the cycle of violence. The Tribunal accepts that the applicant claims he had found the conduct of the paramilitary abhorrent in killing civilians in Colombia, but he was unable to articulate that he thought they had no place at all in a new Colombia where efforts were being made to address justice for victims of the paramilitary’s atrocities. The issue of the accord’s signing and implementation is far more complex than the applicant could portray.
The applicant claimed he did not grow up in a politically minded household and that his father had only been a mayor some time ago, indicating his father never held a political profile or had strong political views. The applicant clearly had work in Colombia and was studying and could afford to travel to Australia to study. Yet the applicant was unable to provide a coherent account of what motivated him to protest against this deal which while having some deficiencies, theoretically had the potential to also benefit Colombia and put an end to violence. The applicant was not poor or a rural dweller and appeared to be living a middle-class life in Colombia. The applicant was not able to provide a realistic account at hearing about when and how he developed a political consciousness and why he had decided to act out his political views through attending a protest against the peace deal with FARC. The Tribunal found his reasons for doing so very general, only stating that his political consciousness developed after the agreement with FARC was touted, but to the Tribunal it appears that it developed in a complete vacuum.
The applicant’s narrow and general claims about his views on the accord, stating only that it adversely impacted him personally because his business was affected by taxes the ex-guerrillas did not have to pay, were so thin as to lead the Tribunal not to accept that he ever held political views of any kind in Colombia, and not against the peace accord with FARC and that the applicant never held a political profile of any sort in Colombia or anywhere else.
The Tribunal also found an anomaly in the applicant’s testimony in which he claimed that he could not return to Colombia because the counterintelligence had earmarked him as a dissident and had written his name on a database so that when he returned to Colombia he would be persecuted. The applicant however, was not able to convincingly address the Tribunal’s concerns that if these paramilitary groups and the counterintelligence police had him listed on a database to harm him on return to Colombia, given their ability to act with impunity, they would have also prevented him from leaving the country, and would not have facilitated documentation such as a clear police record so he could remain in Australia and escape the punishment in Colombia of those who wanted to harm him for having participated in two protests. The fact the applicant was able to organise his student visa without difficulty would also reinforce the Tribunal’s findings that the applicant was of no interest to the paramilitaries or the counterintelligence police in Colombia given he was not prevented from leaving the country. The applicant explained this incongruency by stating that the counterintelligence police were different to the ordinary police. Even so, the Tribunal finds that if the applicant had a profile of any kind as a political agitator that the counterintelligence police would have ensured the applicant did not leave the country, particularly as the applicant claims he was under surveillance by the paramilitary who were adamant he should not tell his story to anyone.
The Tribunal also found the applicant’s account of organising to be involved in a protest vague and at times inconsistent. The Tribunal had to prompt the applicant, for example, to say when he first tried to participate in a demonstration against the peace deal with FARC, to which he finally stated in April 2016, but that he did not get to participate because he was arrested and detained at an apartment before they could step out to participate in the demonstration. The applicant was not able to speak realistically either about who he might have spoken to with in terms of similarly politically driven people about becoming politically active and participating in a protest against the deal with FARC. The applicant could only state that he spoke to the other four potential protestors about making their views known.
The applicant’s claims about being perceived as an initiator and organiser of a protest in July 2016 was also confused. From his account at hearing, it would appear that the applicant had not organised any demonstrations and that he was claiming that he organised a small protest consisting of five people. This does not suggest the applicant was influential or someone who would be a threat to the state. The Tribunal finds it perplexing that the applicant in his narrative did not point to any evidence of him being a high-profile protest organiser, even though he claimed he was perceived as such by the authorities.

100. To explain away the Tribunal’s confusion about the exact role the applicant might have had in any demonstration in Colombia the applicant attempted to state that they had organised a minor group (the group of five), to join the larger demonstration against the peace agreement but that they intended to have their own banners and thoughts, meaning they were independent from the larger protest.
101. The Tribunal does not accept this explanation that the applicant in wanting to voice his concerns over the accord and the manner in which it had been achieved (essentially in contravention of the will of the people), would organise a subset (being very small) demonstration with no connection to the larger demonstration. The Tribunal has concerns that the applicant’s narrative about this matter goes to paper over that he had not provided material to indicate that he had ever organised protests in defiance of the counterintelligence police, and therefore, was not a high-profile political actor or any type of political actor in Colombia with connections to a larger broader political movement that wanted the accord defeated.

102. The Tribunal also found it implausible that the applicant and his two associates would have been singled out for punishment and the applicant identified as the “organiser” of any demonstration, if there had been a large group protesting at the time he and his two colleagues were arrested. If they were not organising a large protest, why was it that the larger protest was able to continue without hinderance but the applicant and his two colleagues who seemed to be unpractised at protesting become the targets of the paramilitary. The applicant could not provide a realistic response to the Tribunal’s questions on why the applicant and his two colleagues who were in the apartment preparing for the demonstration, it is claimed, were of interest to the police and counterintelligence any more than those who had participated in the large rally and the organisers of such a large demonstration. This leads the Tribunal not to be satisfied that the applicant was ever a leader of a protest or a participant in a large or small demonstration in Colombia against the peace accord with FARC.
103. The account of the applicant having been detained for three days blinded-folded and his hands bound also appeared unrealistic to the Tribunal. The applicant stated that he thought about how he would get out once the demonstration was finished but gave little indication that he had thought about his parents and his partner having serious concerns about his whereabouts when he was uncontactable for several days. Nor did he provide any persuasive accounts of the hardships of being bound and blinded folded for two nights and two days without seeing the light of day. The Tribunal had to prompt the applicant to say whether for example his ex-partner, apart from being worried about the applicant’s safety, had been angry that he had disappeared without advising her of his whereabouts which would have been a realistic response to his sudden disappearance. These issues are not determinative of the review, but together with the Tribunal’s concerns overall with the applicant’s claims, finds it adds to the Tribunal’s doubts about whether the applicant was ever detained for nearly 3 days blindfolded and then released when the protests were over and adds to the Tribunal rejecting that the applicant was ever arrested because he was preparing for a protest against the peace deal with FARC.
104. The applicant has also claimed that as a result of that incarceration he developed fear and psychological distress but that he never sought to seek assistance for the claimed trauma he had endured. In coming to Australia, the Tribunal finds it incongruent that the applicant did not seek some assistance for the claimed trauma, even if it was to speak to a counsellor at the education provider to advise he had suffered and continued to suffer symptoms due to the deprivation of liberty and light and the ability to speak to his loved ones. Nor did the Tribunal find the applicant’s explanation that he did not seek help for his condition because he was coming to Australia on a student visa and had never intended to lodge a protection application initially. The Tribunal does not see why the applicant would not have sought assistance for any psychological struggles he was having independent of whether or not he was lodging a protection visa application.
105. The Tribunal notes that the Department had difficulty with the applicant stating that he went into hiding for three years after his initial detention in 2016 and this appeared to be incongruous with the applicant’s claims that he was [working in public]. At hearing the applicant stated that he was in hiding during this period but that he worked from home. The Tribunal does not take issue with what it considers a microscopic inconsistency and a possible ambiguity, and the Tribunal does not rely on this inconsistency. Nonetheless, the Tribunal does rely on the applicant’s claims that he worked from home while he was in hiding and that the paramilitary left him alone as long as he was not seen going to make any complaints about his detention. The Tribunal finds it implausible that if the paramilitary wanted to harm the applicant they would not do so because he was working at home rather than [in public]. It is this incongruity that the Tribunal relies on.
106. The applicant’s claims that he was again interrogated due to him being part of a student protest in 2018 also do not seem credible. While the Tribunal has dismissed that there is a discrepancy between the applicant stating that he was in hiding and working [in public], the Tribunal is troubled by the applicant claiming he was in hiding after the initial arrest but had no fear of coming out to be part of a student demonstration.
107. The applicant has staked his claims on applying for protection when he did, on the fact that it was only when his brother was captured by the paramilitary mistaking him for the applicant, that he decided to take decisive action and apply for a protection visa in Australia. The Tribunal has difficulty with this explanation for the applicant’s delay in lodging an application for a year after his arrival in Australia and his claims that it was never his intention to apply for protection in Australia. It was only when his brother was detained that the applicant considered himself in danger.
108. The applicant claims to have in 2016 undergone deprivation of his liberty, being bound and blindfolded for three days, had his name registered in a database, and interrogated for participating in a second protest for students in 2018 among other things. The Tribunal does not accept that had any of these events occurred the applicant would have thought that he could return to Colombia without any difficulty prior to his brother’s claimed brush with the paramilitary groups in Colombia. Rather the applicant’s delay in lodging the application when he did so when his English studies were completed indicates that the applicant was searching for a migration pathway and does not reflect the applicant having a deep and abiding fear of persecution in Colombia.
109. The applicant has claimed that the only reason he waited until October 2020 to lodge an application is because then he realised, he was seriously being targeted by the paramilitary and could not return to Colombia. The applicant’s explanation throws up some difficulties, however, it terms of the applicant’s credibility because had his brother been interrogated as claimed in July 2020, it is unclear why he waited roughly a further three months until October 2020, to lodge his protection application which happened to coincide with his studies coming to an end and his student visa expiring, to give utterance to his protection claims. Again, the Tribunal finds that the timing of the lodgement of the application is consistent with the applicant attempting to find a migration pathway rather than having a genuine and abiding fear of persecution on return to Colombia now or in the reasonably foreseeable future.
110. The applicant has claimed that his brother is in the process of lodging a protection claim with [Country 1] authorities on the basis that he would be at risk in Colombia due to his brother’s profile and because he could be mistaken for the applicant. The applicant stated at hearing that he could provide a copy of his brother’s claims which presumably would also refer to the applicant’s difficulties in Colombia. The Tribunal considered this would verify the applicant’s claims about having a profile as a political dissident. At the time of writing this decision the applicant has not provided any such claims by the applicant’s brother, leading the Tribunal to find that after having said he could provide such material, the applicant’s credibility is further undermined. The applicant has not approached the Tribunal to ask for an extension or to explain why he has not been able to provide his brother’s claims that would have enabled the Tribunal to cross reference those to his own claims.
111. The Tribunal has had regard to the country information submitted by the applicant but notes that there is nothing to link the country information to the applicant’s own circumstances and it does not support that the applicant was ever arrested or detained or harmed because of his opposition to the peace agreement with FARC, because the Tribunal does not accept that the applicant ever did oppose the agreement.
112. The Tribunal does not accept that the Colombian government, any of its arms or the paramilitary or counterintelligence or any other organisation or individual, state or non-state actors, have targeted and will continue to target the applicant because he has a profile as a political activist and is on a database as a political dissident. Therefore, the Tribunal does not accept that the authorities or paramilitary or counterintelligence police have any interest in the applicant, nor that the applicant was arrested twice and detained once and that if he returns to Colombia that the authorities, or criminal groups or any agents in opposition to the authorities, or paramilitary or counterintelligence officers or anyone at the state or federal level will interrogate, mistreat or persecute the applicant in any way for reasons of his political and imputed political opinion - being anti-government or anti ex-guerrillas because he is in opposition to the peace deal with FARC.
113. Considering whether the applicant would face serious harm as outlined under the Act, having found the applicant has no adverse profile with any agency or individual in Colombia, the Tribunal finds that the applicant would not suffer harm in terms of not being able to find work to subsist. In Australia he has been resourceful enough to find work in the construction industry as well as holding a part time job in [Occupation 3], indicating a high level of motivation by the applicant to sustain himself. The Tribunal accepts that the applicant may face difficulties as the economy in Colombia has weakened in 2024 and data points to meagre growth,[12] and there is no evidence that the applicant will be targeted for any reason and prevented from finding work to subsist on the basis of the applicant’s profile.
[12] ‘Colombia’, Economist Intelligence, 9 April 2024, Colombia Economy, Politics and GDP Growth Summary - The Economist Intelligence Unit (eiu.com).
114. Having had regard to the applicant’s claims individually and cumulatively, the Tribunal does not accept:
· that the applicant was ever ideologically opposed to the peace agreement between FARC and the authorities.
·that the applicant ever intended to protest in July 2016 or at any time against the peace deal between the government and FARC, initially with five people but only two showed up.
·that the applicant was ever arrested at an apartment during preparations by the applicant and two others to become part of a larger protest by police officers who blindfolded them and tied their hands.
·that the applicant was not permitted to engage the services of a lawyer during this arrest or to contact his family.
·that the applicant suffered any psychological distress during any claimed detention as the Tribunal does not accept the applicant was ever arrested in Colombia for three days or for any number of days.
·that he was released on the protests ending.
·that he went into hiding for three years after his release, staying at home and working mostly from home, and only getting out to perform his work duties occasionally.
·that the applicant’s work as a [Occupation 1] was affected due to him having to conceal himself and because of the fear he held.
·that paramilitary groups related to Presidents Uribe and Marquez had the applicant followed and he was threatened and warned not to approach or tell anyone what had happened in terms of his arrest.
·the applicant’s name has been recorded in the counterintelligence police’s database as he is perceived as a political agitator.
·that the applicant participated in October 2019 or at any time in a second demonstration in which he was arrested and taken to a police station and warned because he had a history of organising protest marches and was warned that if in future if he was arrested in a protest, he would suffer serious ramifications.
·that during arrest the applicant was shown graphic videos of what the paramilitary/counter-intelligence police had done to dissidents in the past.
·that the applicant remained psychologically frightened by this event as the Tribunal does not accept that the applicant was ever arrested or threatened via videos depicting serious harm towards other political dissidents.
·that the applicant’s brother participated in a [protest] [in] July 2020 and was detained and investigated.
·that the applicant’s brother or anyone else is of interest to the paramilitary or any other authorities or non-state actors in Colombia on account of the applicant’s profile.

115. The Tribunal finds that the applicant has not established his claims and that there is not a real chance that he will face persecution for reason of his political or imputed political opinion or for any other s.5J reason if he returns to Colombia now or in the reasonably foreseeable future.
116. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
117. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
118. The Tribunal has also considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Colombia, there is a real risk he will suffer significant harm. The real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution.
119. Because of the many questions held by the Tribunal given the general and unsupported claims, the Tribunal has rejected the applicant’s claims, individually and cumulatively, and the Tribunal also finds that it is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm due to any adverse profile with the authorities in Colombia, instruments of the government, paramilitary groups, counterintelligence authorities, or criminals acting outside the government structure.
120. The Tribunal rejects, on the basis of the limited evidence, that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment by state or non-state actors.
121. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
122. 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
123.
The Tribunal affirms the decision not to grant the applicant a protection visa.

Rosa Gagliardi

Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4322

15 August 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction