2208974 (Refugee)

2208974 (Refugee) [2024] AATA 4423 (1 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Fatme Akkileh (MARN: 1576810)
CASE NUMBER:  2208974
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Rosa Gagliardi
DATE:1 October 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 October 2024 at 4:00pm
CATCHWORDS
REFUGEE – Protection Visa – Colombia – applicant socialised with the gang member’s girlfriend – would be persecuted by a group of people related to the Mafia – particular social group – victim of gangs in Colombia – applicant has never had any interaction with La Oficina – applicant would not suffer economic, mental, emotional or other deprivations in his home country – significant delay in applying for protection in Australia –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 23 May 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), applied for the visa on 28 August 2020.
The delegate refused to grant the visa on the basis that there were several credibility concerns in relation to the applicant’s claims and it was determined that the applicant was not owed protection under s.36(2)(a) or s.36(2)(aa).
The applicant appeared before the Tribunal on 16 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.
The applicant was represented in relation to the review.
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 m his 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 meets the definition of refugee in that he has a well-founded fear of persecution on return to Colombia now or in the reasonably foreseeable future, and whether there is a real chance of serious harm consistent with s.36(2)(a) of the Act. Alternatively, the Tribunal is required to assess whether the applicant meets the criteria for complementary protection (s.36(2)(aa)).
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 the applicant requested the applicant have regard to the statement he had provided, dated 20 August 2020 stating in summary:
·The applicant claimed he would be persecuted by a group of people related to the Mafia in Medellin if he returned to his home country, Colombia.
·He was born in [Colombia] and arrived in Australia on a student visa in April 2012 to study English and a [diploma]. His first student visa expired, and he renewed it and was granted a second student visa on 25 May 2015.
·On [date] December 2015, the applicant travelled from Sydney to Medellin to meet his family and to see his girlfriend in the Christmas and New Year period.
·Everything was going well until nearly the end of his holiday.
·On 2 January 2016, the applicant went out with his girlfriend xxx to a party in a bar around 10pm in his town in [Town 1]. At 12.30 a group of people entered the bar and his girlfriend got nervous and told the applicant they should leave the bar immediately. She was shaking. The applicant agreed to accompany her home.
·While they were approaching the bar exit, a man from that group grabbed his girlfriend by the arm and said, “Where are you going and who is that guy with you?” He started shouting at her “How dare you cheat on me”. The applicant pushed his hand and told him he was xxx’s boyfriend.
·The applicant took his girlfriend’s hand and started to walk towards the door when this person pushed him from the back, and he fell on the floor. Then they took him to the back of the bar where they bashed the applicant “brutally”.
·That person took the applicant’s girlfriend with him in his car and asked his friends to put the applicant in their car. One of them started pointing a gun to the applicant’s head and asked him how long he had known xxx and where he lived. The applicant responded he was living in Australia and that he was on holidays in Colombia and xxx was his girlfriend before he had travelled to Australia. He told them that he had not known that xxx was seeing someone else.
·“They” kept driving the car and pointing the gun to his head and one of them said “How dare you have a relationship with xxx? She is the girlfriend of the Patron”. He told the applicant that xxx’s boyfriend worked for La Oficina de Envigado. He got really scared because it is one of the biggest cartel organisations located in Medellin and they are enormously powerful.
·They then threw the applicant on the side of the road and told him not to tell the police because they had connections to the police force and would find and kill him. He called a taxi and went to his mother’s house. He arrived at his mother’s house with lots of bruises and pain. He was shaking and panicking.
·He was too scared to tell his mother the truth fearing for his safety after they threatened him that he would be in big trouble if he told anyone what had happened. Xxx called the applicant many times and sent messages to his phone but he was too afraid to reply to her messages or answer her phone calls. He was scared it could have been her boyfriend who was calling him from her phone.
·The applicant stayed at home all the time and was scared to go out of the house. A few days later he received a phone call from an unknown number and the person on the phone threatened the applicant that if he was seen on the street, he would be dead.
·On 26 January 2016 someone knocked on the door at his mother’s house and his mother opened the door. The person (he) asked for the applicant, but his mother told him that the applicant was not there because she was scared for him. The applicant did not go outside until the day of his flight because he was scared for his life.
·The applicant returned to Australia on [date] February 2016. The applicant’s mother told him that two days after his departure another man came to the house and asked for him. His mother told the applicant not to return to Colombia because his life would be in danger.
·The applicant fell into a deep depression, and he stopped enjoying his life as before. He tried to renew his student visa but because he was one day late when he lodged the application, it was considered invalid. The agent advised the applicant that he could not help him at all, and he was scared to return to Colombia. Fearing for his safety and well-being from xxx’s boyfriend and the Mafia, he stayed in Australia illegally.
·He told his friend about his situation, but he advised him to apply for a protection visa since his life would be in danger if he returned to Colombia.
The Departmental decision provided to the Tribunal for the purposes of the review indicates that on 14 April 2022 the applicant was invited under s.56 to provide further information in support of his claims. The letter also referred to:
Delay in lodgement of application
The Department highlighted that the applicant in his application had stated that he feared returning to Colombia because he feared xxx’s boyfriend and the cartel group, La Oficina de Envigado with which he is associated. The applicant, however, did not apply for the protection visa until 28 August 2020, more than four years after his encounter with him. This lengthy delay raised questions about the genuineness of his protection claims and the Department invited the applicant to provide information or evidence about why there was such a delay in lodging his protection visa.
Various credibility concerns
The applicant was also invited to comment on several credibility concerns as follows:
· The fact the applicant was released and allowed to return home following the altercation could suggest that the applicant was no longer of any interest to the group. While the applicant claimed than an unknown male made inquiries about him, the applicant has not provided any information as to who this could be, or that the applicant knows whether it was in fact a member of the cartel group.
· The applicant claimed that xxx’s boyfriend is a member of a group called La Oficina de Envigado, however the applicant had not provided any details as to who he was specifically, or any evidence in support of these claims. The applicant was invited to provide addition information.
In its s.56 letter, the Department also put the following to the applicant:
· The Department pointed out that the applicant had lived in [Town 1] from 2007 to April 2012, however, the applicant declared that he was born in [Manizales] and as such [this] would be considered his home area. The applicant had not claimed he feared harm in [his home town] and was invited to provide information to show his fear of harm was also in relation to other areas of Colombia and that he could not relocate to other parts of Colombia.
· The Department also referred to country information stating that Colombia had a functioning military and functioning police force and asked the applicant to explain why he could not seek protection from the local authorities in Colombia at the department and national government level. The applicant was also asked whether he could seek assistance from any other independent authority.
On 10 May 2022 the applicant responded to the above concerns. He wrote in summary:
· He was attacked and threatened on 2 January 2016 by a group called the Oficina de Envigado which is in charge of organized crime throughout [Town 1] and other parts of Colombia.
· He was attacked by this group because one of them had a romantic relationship with his partner and he had no knowledge of the situation. Having been constantly threatened via phone calls saying they would kill him if they saw him and not to contact the police or his life and the life of his loved ones would at risk.
· When the applicant was [age] years of age, he witnessed an act of violence where he saw a person murdered with a gun on 8 December. He was eating with his mother and friends and afterwards went for a walk in the park. He saw a hooded man with a gun run and shoot at a person with what seemed like four shots, and he recalled that man fell to the ground dead. His mother immediately led him away to their house.
· The applicant’s father died in a car accident a few weeks after the applicant was born and after a time his mother started a new life with another man, and they had the applicant’s step-sister. When his step-sister was [age] years of age, her uncle was kidnapped and the applicant’s family had to pay money to extortionists but they murdered her uncle anyway.
· In 2006 another cousin on his step-sister’s side also died in a kidnapping attempt (evidence submitted).
· The applicant had experienced violence on his own flesh, and he received threats. His life would be at risk if he returns, and his family would be safe. There is another cartel – the Cali cartel and Cali is categorised as one of the most dangerous cities in the world to live in. The city of Bogota is another concrete jungle where everywhere is dangerous and justice in Colombia does not exist. For example, the ex-president Albaro Uribe Velez was accused of killing peasants and is currently free walking the streets. The police generals make deals with the cartels and the guerrillas, for example FARC made deals to be in congress.
· The applicant kindly asked the Department to reconsider his claims to allow him to stay in Australia safely. He wrote, “I have been almost 10 years in this country, which I consider my home and I belong. Allow me to use my skills [to] help develop and grow this beautiful country and contribute to a future to have a stable dignified life to be a good neighbour, excellent husband, and exemplary citizen.
Evidence at hearing
The applicant stated he studied at university to Medellin, and he moved there with his mother and his grandmother. He did not finish his degree because he came to Australia. He had only completed four semesters of a [degree]. The applicant stated he came to Australia to learn English and the culture. As a child he was always curious about the country. The applicant came to Australia [date] April 2012. He was around [age] years of age at the time. The applicant funded his studies through a relative in Colombia and had a loan from a bank there and he worked part-time in Australia. The Tribunal asked what he planned to do in Australia. He responded he wanted to study in English and return to Colombia to finish [degree] and then come back to Australia to undertake a Masters.
The applicant stated the first visa was for 7 months -or maybe a year - for English studies. The Tribunal asked when the applicant left to go back to Colombia from Australia. He answered that it was in December 2015. Asked what he did for four years in this country if his visa was only valid for up to 12 months, the applicant replied his English was not good enough, so he renewed his student visa to study English and then did a [diploma]. The Tribunal asked the applicant why he had returned to Colombia. He responded he went to visit family as he had not seen them for a few years. The Tribunal asked the applicant to advise what had happened when he returned to Colombia, and he responded he had spent a lot of time with his family and then something unfortunate happened. He caught up with a girl he was emotionally involved with. The Tribunal asked how the applicant had maintained that relationship when he had been away from Colombia for such a lengthy period. He stated she was a person he had met since they were teenagers and despite the distance they had always stayed in touch. The applicant stated it was a relationship, but it was not “a 100 per cent” close relationship. The Tribunal asked whether he had an understanding with her that they had a future together. The applicant stated they did not plan anything like that. It was more a sentimental thing.
The applicant stated they went out for dinner for his birthday when he got to Colombia. It was in a shopping centre with her family just for a meal; nothing fancy. Apart that one night they saw each other two or three times. It was not a committed relationship but, “when you see someone you have great affection for it is like time has not gone by”.
The Tribunal encouraged the applicant to state what happened after that, and he responded that they went out to dance at some point into the night in [Town 1]. She held his hand and tried to lead him away. A guy then hit him with a bottle, and she started screaming and they told him the girl was his girlfriend. The applicant was shoved into a car and told him they never wanted to see him again or they would kill him. It was about midnight.
The applicant when asked stated that he had no signs this girl was involved with criminals. He thought she was normal. The Tribunal asked whether his family or her family had not tried to warn him that xxx was in fact the girlfriend of someone (the Patron) in La Oficina de Envigado. The Tribunal stated he was not in a committed relationship with xxx so why were these people so angry. The applicant stated these people were territorial and they will just go down this path of giving you an ultimatum as they saw them hugging and kissing.
The Tribunal asked how many people were in the group who beat him. The applicant stated that he could remember there were five people. The Tribunal asked whether they had weapons and he confirmed they did. They had pistols and knives – things you put in your hands. The Tribunal asked the applicant to say where in the bar exactly he was when he was accosted. The applicant responded they were in an area where you could sit and have a drink near the entrance. He added they were having a good time until xxx spotted someone, and she grabbed his hand and was scared.

The applicant stated that she was trying to get him out of the bar and that is when “they” arrived. Asked if they announced who they were, he replied that he told him he was part of a narco-trafficking gang, La Oficina de Envigado (the Tribunal will use the term “La Oficina” as an abbreviation). The Tribunal asked why they would tell him which gang they were in, and he answered that was to scare him. The applicant stated that after they introduced themselves, they said if they saw him around, they would kill him.
The Tribunal asked the applicant to talk about when he was assailed. The applicant said it all happened quickly - they pushed him on the ground, and they smashed a bottle on his head, and they kicked him on the ground, but his memory was not that good. The Tribunal asked whether people just looked on or did they try and help. The applicant replied that nobody helped him, they were just looking, and it might have been because they knew who these people were and were afraid. The Tribunal asked what his girlfriend did at the time, for example, had she rung the police. He stated no, not at that moment and not with those people involved. It was a life and death situation and with his life at risk - you could not call the police. She was shouting and screaming.
The applicant stated that his own family had experienced past harm as they had undergone two kidnappings – one in 2005 and one in 2006. His family were owners of cattle farms and in 2005 his half-sister’s uncle was kidnapped they asked for a ransom. They paid it to the police, but her uncle was never found. In 2006 an uncle had a confrontation with the kidnappers of the uncle, and he was shot down. He had evidence.
The Tribunal asked whether the instinct of his girlfriend would not have been to call someone. The applicant stated she was screaming and was hysterical, but she would have felt impotent. The Tribunal asked why the applicant might not have called an ambulance. The applicant stated there was no need because he had an aunt who was a nurse and she looked after him. Asked what other injuries he might have suffered, the applicant responded he had a bust lip and a broken tooth and mostly injuries to his ribs and stomach. The applicant stated when asked that he was bleeding from the head, and he had a cut over his eyebrow. His aunt who is a nurse stitched him up.
The Tribunal encouraged the applicant to continue with his narrative. He stated they called a taxi for him, and he went home, and he did not say anything for a whole day. The Tribunal stated that he had claimed in his application that they pointed a gun at him, and he stated yes, when they told him they were from La Oficina.
The Tribunal asked whether anything else had happened to the applicant. He stated there were cars parked outside and he kept getting calls and his phone would keep ringing and threatening him that if they saw him outside, they would kill him and often there would be silence on the end of the phone.
The Tribunal asked where the taxi was precisely, and the applicant responded he was all beaten up and they shoved him in there and they said if they saw him again, they would kill him. And he went home. The Tribunal asked the applicant whether the head injuries he had sustained might have led to memory loss on his part and he stated no, he did not think so.
The Tribunal confirmed with the applicant that they had thrown him out of their car and called a taxi for him to go home. The Tribunal noted that the applicant had initially stated that he called the taxi but then revised his account to say the members of La Oficina called the taxi for him. The applicant stated he did not know how it all was exactly - he wanted to get away from there as quickly as possible.
He went home. He was bleeding and his mother asked him what happened, and she kept asking. He said he had been mugged but the next day he told her the truth. She started to cry and told him she would feel better if he were in Australia in a safe environment. The Tribunal asked whether he did not need treatment immediately after the beating. The applicant stated his mother called his aunt to come and he went to a dentist and fixed his tooth by fitting it with resin. He did not tell the dentist how it happened, he simply had a broken tooth and needed it fixed. The applicant stated he would try to obtain evidence of having visited the dentist as claimed. In terms of his other injuries, his aunt had figured out that he did not have broken ribs and looked after him for a couple of days, checking on him regularly.
The Tribunal asked whether after things had settled down, he did not think of going to see a doctor to ensure everything was healing and had not contracted an infection as far as his wounds went. The applicant responded no, he trusted his aunt’s skill and then he returned to Australia. Besides he did not want to leave home as he was really scared.
When asked when the violent incident happened the applicant stated it was a couple of days after New Year, the second or third of January. The Tribunal noted that the Departmental decision stated that he came back to Australia on [date] February 2015 and asked why the applicant waited a whole month to escape Colombia if he feared for his life. The applicant responded he had already bought a ticket with a set date, and it was very expensive to change, and his family did not have enough to cover that. The Tribunal asked the applicant whether as a student he had worked in Australia. The applicant replied, yes, he [worked] – mostly casual work but his intention was to get into construction. He did a few months to learn [a skill].
The Tribunal asked whether anything had happened while he was at home for a month with his mother in Colombia after the violent beating by La Oficina. The applicant repeated that there were cars parked outside and the phone kept ringing and sometimes there would be no one on the line; but nothing else. The Tribunal asked if these people had tried to harm his mother or grandmother and the applicant replied, no. The Tribunal observed that if these people really wanted to kill him it was perplexing that they would have let him leave Colombia at all. The applicant replied there were death threats, and they did it to make you go away. He did not know why they did not hurt him any further. He did not want to find out. He followed their instructions.
Asked what he thought would happen to him on return to Colombia, the applicant stated that his mental health would suffer, and he did not want to look over his shoulder because someone was trying to kill him.
The Tribunal noted that the matter had occurred over 7 years ago now and did he know what had happened to his girlfriend, xxx, and the applicant replied they had a friend in common, but he had no contact with her. A mutual friend had told him that he better stay in Australia. He did not know whether xxx was still in a relationship with the member of La Oficina, and he did not want to find out. The Tribunal observed that now that it had been around 8 years since the claimed physical assault, why would anyone think that on return to Colombia he would get back together with xxx. The applicant stated that these people were dangerous, and they do not forget and have a big ego. He did not want to run the risk because it would be the end of his life.
The applicant stated that when he returned to Colombia in 2015, he was on a valid student visa. Asked until he had continued to study, the applicant stated it was until he had to do another application for a student visa, but the agent applied one day after the deadline, and he became unlawful for three or four years, but he thought it was three years. The Tribunal observed that on 3 August 2017, his Bridging visa ceased so he was unlawful for around three years. The Tribunal asked what the applicant might have done during that period, and he stated not a lot. He was in a room hiding for two and a half years. He went out occasionally and friends would help him out. He was not working as an unlawful non-citizen.
The Tribunal noted that the applicant’s family history in Colombia had been difficult given the killings and extortion, and that witnessing as a child a man being gunned down would have affected him. The Tribunal asked whether the applicant had thought to see a counsellor when he was studying to tell them he needed help. The applicant replied that in the college there was no counsellor. Then he was illegal so with these problems looming over him, all he wanted to do was to run away. He was unwell but he did not have money or the means to get help from a psychiatrist or psychologist. He had a few Australian friends and one in particular who advised the applicant. The Tribunal asked whether any of these friends had told him that given he feared for his life he had to find a way to remain in Australia permanently. The applicant stated that a friend did help and that is why he applied for a protection as he could not keep going like that.
The Tribunal noted that the applicant had let things go for a long time. He stated he did get in touch with some lawyers who told him it would be a waste of time because people from Colombia did not get protection and his mental health was really low. The Tribunal stated that immediately on return to Australia, did he not think he could not return to Colombia and that he had to find a way to stay here permanently. He could have looked up the immigration website, for example, and would have become aware of the possibility of applying for protection. The applicant stated he did think of it, but he had a valid student visa and was going to follow a path towards residency. He wanted to do things “the right way”.
The applicant stated he wanted to study and to prove himself. The Tribunal noted that the applicant had a migration agent when he was applying for his student visa and why did he not tell that person he could not go back to Colombia. The applicant again stated that he was told by the migration agent there was a peace treaty and there was no violence in Colombia, and his protection visa application would be rejected. He was advised to continue as a student.
Asked what else the applicant feared on return to Colombia, the applicant replied that the country was beautiful but very unsafe and it would be hard to go out onto the street – he just would not be able to go out. He had been here 12 years and he would find it very hard to go back. The police were hopeless and did not do anything with the cases involving his uncles. It would be no different with him.
The Tribunal stated that the applicant had waited a lengthy period before lodging his protection visa application and that the Tribunal might find that this did not indicate he had a deep and abiding fear of returning to Colombia. The applicant stated he had lived through hell going through this pathway.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
It is not immediately clear that the applicant’s claims have a link to s.5J(1), in that he does not appear to claim protection on the basis of his race, religion, membership of a particular social group or political or imputed political opinion. However, it could be argued that he is claiming he belongs to the particular social group – “victim of gangs in Colombia”.
Having accepted the connection with s.5J, however, the Tribunal has several reasons to doubt the veracity of the applicant’s claims or that he has a well-founded fear of persecution on return to Colombia now or in the reasonably foreseeable future on account of being a victim of a gang in Colombia called La Oficina de Envigado, or the Mafia, because he was seen out socially with a close friend he did not know was in fact the girlfriend of someone in this gang. The applicant claims he was physically assaulted by this claimed boyfriend and that as a result of his fear, the applicant developed mental health issues. In his written statement the applicant also claimed that the person who assaulted him because his girlfriend was see out with the applicant, was a “Patron”, with the Spanish term, meaning boss, presumably of La Oficina, or someone high up in the organisation.
The Tribunal accepts that La Oficina de Envigado exists, and country information shows it is a Medellin crime syndicate formed in the 1980s as Pablo Escobar’s enforcer army and is accused of being one of Colombia’s main drug trafficking organizations.[1] Further:
An ever increasing string of enemies meant the notorious drug lord had to radically expand his network of contract killers in Medellin and adjacent municipalities.
Out of several of loosely organized, semi-independent assassination branches, the “Oficina de Envigado” named after the municipality south of Medellin where it was born, stood out as one of the most effective.
….
After the death of Escobar in 1993, the Oficinia overtook many of the drug lord’s extortion, money laundering and drug trafficking duties under the leadership of “Don Berna”.
….
After Escobar’s assassination in 1993, the brutal and cunning Berna emerged as the natural leader of the Oficina and the Medellin underworld…
Thus began one of the bloodiest chapters in the history of La Oficina. The crime syndicate and the AUC jointly combated left-wing FARC (Revolutionary Armed Forces of Colombia) and ELN (National Liberation Army) guerrillas over control of Medellin’s impoverished neighborhoods, often in collusion with the security forces[2] (Tribunal’s emphasis).
[1] ‘Oficina de Envigado’, Colombia Reports, 11 January 2018, Oficina de Envigado | Colombia Reports.
[2] Ibid.
Don Berna had managed to create a peaceful co-existence between the city’s politicians and the underworld and led to a reduction in crime between 2003 and 2008. However, after his extradition to the United States in 2008, the quiet consensus broke down and Oficina splintered into several, rivalling factions. The two most prominent came under control of alias “Valenciano” and alias “Sebastian”. And:
A new business model
Having lost the income of international drug trafficking, the Oficina took to other means to finance the organization.
Extortion rackets became common practice and the individual combos that were part of the Oficina ventured into the Bajo Cauca region searching for cocoa, marijuana and heroin, while in the city of Medellin the combos aggressively pushed local drug consumption.
By the end of 2010, the war between Valenciano and Sebastian came to an end as the latter had assumed control of approximately 90% of the city’s territory, leaving his rival only the eastern Comuna 13 district.
Valenciano, the assassin turned commander-in-chief, was arrested in Venezuela in November 2011, while Sebastian was captured in Copacabana, just northeast of Medellin in August 2012.
Following these arrests, the crime syndicate further fractured. Reports of deadly, internal battles surfaced again on New Year’s Eve 2012, when nine suspected members of the syndicate were massacred in Envigado, in what media described as a showdown between two generations of Oficina leaders.
However, despite reports of heavy infighting, the Oficina’s “board of directors” is believed to remain in control of drug dealing and extortion in Medellin. According to US authorities, the organization has also recovered international drug trafficking routes.
…
Without a clear leadership, the Oficina is up for stiff competition against the hierarchically-structured AGC. But with a history of infiltrating Medellin’s local state apparatus and an obvious standing in many economically vulnerable neighborhoods, the Oficina seems to have an edge over its newly-arrived enemy.
According to crime analysis website Insight Crime, the Oficina generates approximately $31.4 million a year from money laundering alone. In order to maintain its businesses on the street, the Oficina uses pistols with silencers and is believed to have a large arsenal of machine guns and explosives.
Due to its decentralized nature — the so-called board of directors is believed to have some eight members — factions of the Oficina often make temporary alliances with other criminal organizations, such as the Valle del Cauca-based drug-trafficking group “Los Rastrojos” and Mexican drug cartel Los Zetas.
These alliances would facilitate drug trafficking routes to the United States and Europe.[3]
[3] Oficina de Envigado’, Colombia Reports, 11 January 2018, Oficina de Envigado | Colombia Reports.
The Tribunal therefore accepts that the crime syndicate La Oficina is ruthless and has significant resources at its disposal to cause serious harm to individuals or groups who might cross it’s path by way of being involved in rival criminal activity or during the course of conducting criminal activity as part of its business model. The Tribunal also accepts that a member of La Oficina or the “Patron”, might go out of their way to harm or even kill someone who had slighted them by being seen to cause injury to their honour as it is claimed the applicant did. In terms of there being a link between the applicant and such a gang, however, the Tribunal has serious concerns and for the following reasons finds that the applicant has never had any interaction with La Oficina in Colombia on account of the applicant going to a bar with xxx, or any other person, who happened to be the official girlfriend of a member or a “Patron” of La Oficina.
In the first instance, as can be seen from the country information, La Oficina is a complex and dynamic organisation. It is not an amorphous group without subgroups and leaders and nor is it a monolith with one unchanging business model. As the applicant described La Oficina, it was in very simplistic terms referring to them as the Mafia. The applicant’s description of this group at hearing was very general in terms of the persons he was involved with and who physically, it is claimed, harmed him in a bar in [Town 1] when he was out having a drink with xxx. He described the five members of La Oficina who he claims beat him in vague terms and given the applicant’s inability to talk about this group in a way which showed he was beaten by them. The Tribunal found his account unconvincing. The Tribunal and the Department have been consistently provided with little credible information about whether such people were part of a local gang, for example, or were outside members of La Oficina. The Tribunal is not convinced that the applicant’s claims about being beaten at a bar by members of La Oficina in early January 2016, are lived experience by the applicant.

It is also incongruous that the girl he had had a long association with, xxx, had not mentioned to him that it would not be a good idea to be seen out together because she had a jealous boyfriend who would harm him if they were caught acting in intimate ways. The applicant stated that when she realised that her boyfriend had come into the bar, she was shaking and was very frightened, intimating that she was aware there would be consequences for the applicant in being together. Knowing the seriousness of their actions in going out together when she was the girlfriend of a claimed La Oficina member or “Patron”, it is difficult to accept as realistic that on the one hand xxx would carelessly go out and have fun with the applicant, hugging and kissing, (and there was no suggestion by the applicant that xxx was trying to hide that they were going out together on that night), when there could be serious consequences for both her and the applicant.
The Tribunal also finds it incongruous that someone who had been hit by a bottle on the head and had a cut to his eyebrow and lip would not seek medical treatment apart from having an aunt who was a nurse tend to his wounds by placing stitches in his head and over one of his eyes. The Tribunal can accept that a relative might be highly medically skilled and that such a relative might be able to provide excellent medical care. The applicant also claimed that he was afraid to go outside because there were people parked outside his house. Nonetheless, it is not clear that without some diagnostic tools the applicant could be sure he had not had internal bleeding, for example, or that the applicant had sustained some serious internal injury which would not have been immediately visible to the naked eye given he was beaten “brutally” and kicked while he was helpless on the ground by five men.
The Tribunal also finds it perplexing that had the applicant’s aunt assisted him after injuries he sustained after being kicked on the ground and hit with a bottle, she has not been prepared to provide evidence to detail the medical assistance she proffered the applicant and to support the applicant’s claims that the injuries had occurred in the manner the applicant claims. Nor has the applicant’s mother been prepared to provide supporting material to ensure that her son need not return to Colombia because she feared his life was in danger and that people had parked outside her house after the applicant was beaten in a bar.
The silence by people who the applicant claims knew about the matter in both Colombia and Australia (the applicant stated he told a good friend about what had happened to him) does little to persuade the Tribunal that the applicant does face serious harm on return to Colombia. And the Tribunal cannot make his claims for him.
The applicant’s claims that after having threatened him with a gun and telling him not to show his face the gang members would simply let the applicant go without further consequences, is also not credible. This is particularly so as it is also vaguely claimed that the boyfriend of xxx (the applicant’s companion) was considered a “Patron”. As this group acts with impunity and in concert with the police, it seems incredulous that the gang members of La Oficina would put him in a car, then throw him out and then call a taxi for him to go home. Such a scenario would mean that the taxi company, through the authorities, could trace who had made the call for the taxi on seeing the applicant injured and bleeding. While it could be argued that the taxi company may not have wanted to get involved, it is fanciful that such ruthless persons would go out of their way to call a taxi for the applicant in the first instance, and then run the risk that a report could be made by a potential witness (the taxi driver) that the applicant had been harmed by members of La Oficina.
These matters of themselves are not determinative of the review. However, together with other difficulties identified by the Tribunal do contribute to the Tribunal not being satisfied that the applicant has a well-founded fear of persecution on return to Colombia now or in the reasonably foreseeable future. The applicant’s general statements about having been bashed by La Oficina without the identification of any individual who it is claimed was the boyfriend of the applicant’s friend, xxx, leads the Tribunal to reject that:
·The applicant ever went out with a friend he had known for a lengthy period, xxx, who he was close with on return to Brazil in January 2016.
·The applicant was drinking with his friend, xxx, in a bar in [Town 1] or in any location when xxx became frightened, took him by the hand and urged their departure from the premises.
·Unbeknown to the applicant one of the gang members was a “Patron” or other member of La Oficina who was enraged with the applicant because xxx was his girlfriend and he was jealous she should be with another man.
·The applicant was accosted by five or any number of men either in front of the bar or behind it or any location and that the applicant then was pushed to the ground.
·One of these men broke a bottle over his head causing stitches to be needed to his head and over his eyebrow and his lip being split.
·That the applicant’s teeth were knocked in by La Oficina mob.
·That the five men kicked the applicant when he was on the ground and told him not to show his face or they would kill him and his loved ones.
·In the aftermath of the beating and splitting of his head and injury over his eye, an aunt of the applicant tended to him to ensure his recovery.
·The applicant received a phone call from an unknown number threatening that if the applicant was seen on the street, they would kill him.
·He was constantly threatened via phone calls saying they would kill him if they saw him and not to contact the police or his life and the life of his loved ones would be at risk.
·On 26 January 2016 someone knocked on the door at his mother’s house and someone was looking for the applicant.
·After two days after the applicant’s departure another man went to the applicant’s mother’s home and asked also asked for the applicant.
The applicant’s stay in Colombia
The applicant has claimed that he remained in his home area roughly a month after the incident in which the members of La Oficina, threatened him with death if he was seen out and did not vanish. When challenged as to why he did not depart Colombia earlier than he did if he feared for his life, the applicant stated that he had already paid for his ticket and did not have the funds to leave Colombia to change his flight and incur a financial penalty.
The Tribunal does not consider the risk the applicant claims he took in remaining in his own property with cars parked outside menacingly for around a month is consistent with someone who feared for his life and needed to be out of view of La Oficina or any other Mafia gang. The applicant himself stated that there were cars parked outside his house, meaning that had La Oficina wanted to harm him or his mother they could have easily done so at any time. The fact the applicant claims that La Oficina wasted resources parking cars in front of the applicant’s house before his departure without taking any action against him or his mother is also implausible, the Tribunal finds.
The applicant’s claims also beg the question as to why and how the applicant was able to slip out of his house without any difficulty and without coming to the attention of the powerful La Oficina to come to Australia. Had La Oficina wanted to harm the applicant whilst it is claimed he was under their watchful eye; the Tribunal sees no reason why they would let the applicant leave his home. Furthermore, it is incongruous that, had La Oficina which operates in concert with the security forces and law enforcement generally, wanted to harm the applicant they would not have stopped him at the airport to continue to keep him under surveillance. The applicant has stated that they were only interested in him staying out of their sight, but this belies that they had a genuine intention to cause and will cause serious harm to the applicant on return to his home area in Colombia, [Town 1], or any other area of Colombia and the Tribunal finds the applicant had never had an encounter with the claimed boyfriend of a person called xxx , or any other gang member or “Patron” who happened to be the girlfriend of a member of La Oficina.
The Tribunal places some adverse weight on the applicant’s delayed departure from his home country for almost a month given he claims he feared for his life given the death threats from La Oficina. The fact the applicant claims that he was able to leave his home and the country without interruption if La Oficina was targeting him to cause him serious harm, also contradicts the applicant’s claims that members of La Oficina did not want to see him outside on the street at any point. In addition, if the applicant had held a genuine fear of serious harm by La Oficina the Tribunal does not see any reason why he could not have borrowed money to save his life to leave the country as soon as he could. In any event, the applicant’s departure from Colombia also raises questions because the applicant seems to have been able to do so without coming to the attention of La Oficina who the Tribunal does not accept would not have metered out further punishment to the applicant at that time if he continued to be of interest, and would be of interest, to them on his return to Colombia. The Tribunal finds that if the applicant had not been targeted for harm after the claimed bashing (which the Tribunal rejects happened) it is not plausible that the applicant would be of interest to La Oficina some eight years after his return to Colombia and the Tribunal rejects that the applicant has ever been of interest to La Oficina or any other high or low profile criminal organisation or individual(s) or would be so on return to Colombia.
Even if the Tribunal accepted the applicant’s claims that in 2016 he was physically assaulted and threatened with death by unidentified members of La Oficina (and the Tribunal does not accept that these events did occur), the Tribunal would find that in light of the inaction of La Oficina members prior to the applicant’s departure from Colombia, that there is not a real chance that the applicant on return to Colombia some eight years after the events, would be of interest to them. There are many unknown factors such as what has become of the so-called five and the boyfriend of xxx, whether they are still operating within La Oficina and given the applicant has not, it is claimed, been seen with xxx for some eight years now, whether La Oficina would divert their valuable resources from their business operations as a cartel involving drugs and other ventures, to focus on the applicant on his return to Colombia now or in the reasonably foreseeable future, and the Tribunal rejects that they would.
The delay in lodging his visa application in Australia
The applicant at hearing claimed that when he tried to renew his student visa his migration agent had delayed lodgement by one day leading the applicant to become unlawful for several years. The Tribunal accepts that in some cases not lodging a protection visa immediately on arrival in Australia is not necessarily indicative of an applicant not having a well-founded fear of persecution. Together with the other concerns held by the Tribunal about this matter, however, the Tribunal finds that the delay occurred because after hiding in the community as an unlawful citizen, the applicant was attempting to regularise his visa status in Australia by applying for a protection visa.
The Tribunal does not accept that the applicant was so disabled by inaction and fear that he could not seek advice from his close friends and the Brazilian community or the community in Australia generally, about how to give expression to fears he could not return to Colombia because he had a dramatic tale to tell in terms of being pursued by a powerful cartel such as La Oficina. The Tribunal finds it stretches credulity that the applicant on attempting to renew his student visa could not have impressed upon his agent (even though it is claimed that the agent counselled him against lodging a protection visa application because it would not be successful) he needed a durable and permanent solution to his status in Australia because he could not return to Colombia at any time.
The applicant at hearing stated that he wanted to do things “the right way” to gain residency via his student visa and then through the skilled pathway. Such a course of action, however, was clearly fraught given the applicant stated he was not succeeding at English in the manner that he wanted and given that any such student visa was finite. Instead of simply permitting himself to remain unlawfully in the country for some three years, it had always been open to the applicant to search for another migration agent who would put forward his claims for protection, had he had a deep and abiding fear of returning to Colombia now or in the reasonably foreseeable future, particularly when it was clear that the applicant’s initial migration agent who had lodged his student applicant with a day’s delay, leading to catastrophic consequences for him, could not be relied upon.
The Tribunal finds that had the applicant held a genuine fear of returning to Colombia, on finding out he was an unlawful non-citizen would not have remained in a state of suspension for several years without approaching the Department or some other reputable migration agent or other person who could advise him (such as his friends in Australia) to resolve his circumstances and explain that he could not in any circumstance return to his home country.
The Tribunal places adverse weight on the matter of the delay in the applicant lodging his protection application on 28 August 2020, over four years after returning to Australia from what he claims were traumatic and brutal events involving La Oficina. The applicant’s conduct in this regard points to the applicant finally attempting to resolve his migration status in what would have been one of the few means he could so at that stage – via lodgement of the protection visa application.
Recently submitted evidence of trauma to teeth of applicant
The applicant has now submitted evidence of having visited a dentist on 6 January 2016, a date close to when it is claimed the applicant was attacked by members of La Oficina and in addition to splitting his head and over his eye, had his teeth broken by the blows. The Tribunal asked the applicant whether he had evidence at hearing that he had been to a dentist to have his teeth repaired. The applicant was provided additional time to provide this evidence after the hearing. The dental account in the name of the applicant is untranslated but the Tribunal can make out that it is for “reconstruction for trauma dental anterior” and that it was repaired with resin.
The applicant at hearing stated he did not tell the dentist how he obtained the trauma to his teeth, and it would not be expected that a dental account would go into detail about how a patient’s trauma was obtained. Nonetheless, the Tribunal can only place limited weight on this statement as the Tribunal is not satisfied that this document is direct evidence that the applicant’s trauma to his teeth was caused by members of La Oficina and not some other unfortunate accident. This is particularly so as the applicant seems to have been able to visit the dentist without being impeded by La Oficina. The applicant claimed that he had after being beaten brutally and threatened that he would be dead if he were seen on the streets. It is unclear, therefore, why he was able to see a dentist and not a doctor and would have risked being observed by La Oficina to have his tooth repaired. The Tribunal therefore does not accept that any damage to the applicant’s teeth was caused by La Oficina or any other criminal gang in Colombia.
The applicant’s relatives and the circumstances of their deaths
The Tribunal accepts that the applicant’s half-sister’s relatives experienced kidnapping and death in relation to unrelated extortion attempts in 2005 and 2006. The Tribunal is also prepared to accept without any third-party evidence, that the applicant as a [age]-year-old child witnessed a crime in Colombia. In terms of the applicant’s half-sister’s relatives being kidnapped and killed the applicant has submitted evidence.
Nonetheless, these are not events in which the applicant was targeted for any particular characteristic of his. These events are remote in time and have no connection to the applicant himself. While distressing for the applicant’s family as a whole, the Tribunal does not have anything before it to suggest that the criminals involved in extortion, kidnapping or the death of his half-relatives were in any way targeting the applicant.
The times in Colombia twenty (and twenty-one) years ago were not those precisely faced by the population in general in Colombia currently. The Tribunal does not assess that they were any better or worse, however, the country information would indicate that according to Human Rights Watch, World Report for 2006, demonstrates that the country was experiencing a particularly tumultuous time where no one in particular was being targeted, and yet most people who were not part of the criminal gangs were affected:
Colombia presents the most serious human rights and humanitarian situation in the region. Battered by an internal armed conflict involving government forces, guerrilla groups, and paramilitaries, the country has one of the largest populations of internally displaced persons in the world.
Colombia’s irregular armed groups, both guerrillas and paramilitaries, are responsible for the bulk of the human rights violations, which in 2005 included massacres, killings, forced disappearances, kidnappings, torture, and extortion. Despite ongoing negotiations with the government, paramilitary groups repeatedly committed abuses in breach of their cease-fire declaration.
Members of the armed forces have at times been implicated in abuses, independently or in collaboration with paramilitaries. Impunity for such crimes, particularly when they involve high-ranking military officers, remains a serious problem. Ties between military units and paramilitary groups persist, and the government has yet to take credible action to break them.
Demobilization of paramilitary groups

2005 was marked by the passage of Law 975, a controversial package for the demobilization of armed groups that the government called the “Justice and Peace Law.” The law offers reduced sentences to members of these groups responsible for serious crimes, if they participate in a demobilization process. Drafted in the context of extended negotiations with paramilitaries, the law fails to include effective mechanisms to dismantle the country’s mafia-like armed groups, which are largely financed through drug trafficking. It also utterly fails to satisfy international standards on truth, justice, and reparation for victims.

Although Colombian President Alvaro Uribe signed the demobilization law in July 2005, the government has not begun applying it. The law faced several constitutional challenges, which were still pending at this writing in late November 2005.

[4] ‘Colombia. Events of 2005’, Human Rights Watch, World Report 2006, World Report 2006: Colombia | Human Rights Watch (hrw.org).
Even before the demobilization law was passed, the government sponsored large-scale demobilization ceremonies in which thousands of paramilitaries handed over weapons. The government portrayed these demobilizations as important steps towards peace, but there were widespread reports of continuing abuses and illegal activity by paramilitaries around the country, including the recruitment of new troops.[4]

The applicant is not, however, claiming that in witnessing a crime as a child, he was being targeted or that he was targeted personally in relation to any of the events of the past decades involving his step-relatives. Nor does the Tribunal find that the applicant through his half-sister’s relatives was being targeted at all. The witnessing of crime in Colombia given the state of the country was not related to who the applicant was, or his then characteristics, in respect of any reason under s.5J(1). The Tribunal therefore does not accept that the applicant has a well-founded fear of persecution on account of any crime he witnessed in Colombia as a child or on account of general crime and serious harm experienced by his half-relatives.
In terms of current events, Human Rights Watch states:
Abuses by armed groups, limited access to justice, and high levels of poverty, especially among Indigenous and Afro-descendant communities, remain serious human rights concerns in Colombia.
The 2016 peace accord between the Revolutionary Armed Forces of Colombia (FARC) and the government ended a five-decade-long conflict and brought an initial decline in violence. But violence took new forms and abuses by armed groups increased in many remote areas, reaching similar levels to those that existed immediately before the peace process. A year and a half since President Gustavo Petro took office, his “total peace” strategy has achieved limited results in curbing abuses against civilians.
In a welcome move, President Petro shortlisted three women with a strong record of investigating human rights violations to become the new attorney general. The Supreme Court had not appointed a new attorney general at the time of writing.
Abuses by armed groups
Numerous armed groups operate in Colombia fueled by illegal economies, including drug trafficking and illegal mining. These include the National Liberation Army (ELN) guerrillas, a group formed in the 1960s; over 30 “dissident” groups that emerged from the 2017 demobilization of the FARC; and the Gaitanist Self-Defense Forces of Colombia (AGC), which emerged from the demobilization of paramilitary groups in the mid-2000s and is also known as the “Gulf Clan.” Many of these groups have fluid and complex links to each other, and some are parties to non-international armed conflicts.
Armed groups continue to commit serious abuses against civilians. Reports of child recruitment and kidnappings increased in 2023. Security forces and judicial authorities have often failed to effectively protect the population, ensure victims’ access to justice, and prosecute and dismantle criminal groups.
……
Violations by public security forces
Limited progress in investigating violations by security forces remains a serious concern.
On March 28, 2022, 11 people died in an army operation in Alto Remanso, Putumayo state, in southern Colombia. At least four civilians died. The Attorney General’s Office announced in May 2023 it would charge 25 soldiers with the killings, but at time of writing, the Constitutional Court was analyzing a request by defense lawyers to transfer the case to the military justice system, which has historically failed to ensure justice.
Police committed serious human rights violations in response to protests across Colombia between 2019 and 2021.
In 2021, Human Rights Watch reviewed evidence linking police to 25 killings of protesters and bystanders, as well as dozens of injuries and arbitrary arrests, in the context of peaceful demonstrations. As of June, the Attorney General’s Office had charged eight police officers. Nobody had been sentenced.
The Ministry of Defense ousted 10 police officers credibly linked to human rights violations during demonstrations.
The Ministry of Defense also initiated a process, with broad participation of civil society groups, to reform police protocols. But the government failed to move forward with other reforms to security forces, such as transferring the police out of the Ministry of Defense.
Violence against human rights defenders and other people at risk
More than 1,200 human rights defenders and social leaders have been killed in Colombia since 2016, according to the Human Rights Ombudsperson’s Office. Human Rights Watch documented 150 killings of human rights defenders and other social leaders committed between January and the end of November 2023.
Colombia has a broad range of policies, mechanisms, and laws to prevent abuses against human rights defenders and protect former FARC fighters. But implementation has often been poor.
….

[5] ‘Colombia. Events of 2023, Human Rights Watch, World Report 2024, World Report 2024: Colombia | Human Rights Watch (hrw.org).
Killings and other attacks against local politicians and candidates increased ahead of the October regional elections. Between January and July, 16 candidates, politicians, and other people involved in political campaigns were killed, according to the Ombudsperson’s Office.[5]
The Tribunal accepts that living in Colombia involves challenges for the general population, but the Tribunal rejects that the applicant has any kind of profile as a human rights defender or a person with a political profile of any kind, and has rejected that the applicant will suffer serious harm on account of being a member of a particular social group (victim of gangs in Colombia) because the Tribunal has rejected that the applicant ever came to the adverse attention of a member of La Oficina, a “Patron” or any Mafia group from Medellin, who was enraged because the applicant socialised with the gang member’s girlfriend and beat the applicant brutally or in any other way, in the first instance.
Psychological difficulties experienced by the applicant
The applicant has not sought assistance from any health provider in Australia, even when he was a student. The applicant claims that there were no counselling facilities at his education provider, but it is unclear to the Tribunal why the applicant did not seek some assistance, even if only via free online services such as Lifeline.
In any event the Tribunal accepts that the applicant has developed some psychological issues, particularly as he states he remained in a room during his unlawful period in Australia and the applicant did not see a way through his situation. Nonetheless, the Tribunal does not have probative evidence before it that there is a causal link between his mental health problems and events involving La Oficina in Colombia, and particularly no evidence soon after his return to Australia when the evidence would have been contemporaneous.
The Tribunal accepts that facilities in Colombia in terms of standards might be less than desirable, however, the Tribunal has not found that there is evidence that the applicant would not be able to attain any psychological assistance on return to Colombia, particularly in the main centres.
A hallmark of Colombia is population-wide exposure to violence. To understand the realities of mental health to Colombia requires attention to the historical context of 60 years of unrelenting armed conflict overlaid upon high rates of homicide, gang activity and prevalent gender-based and intra-familial violence. The number of patients affected by trauma is extremely large, and the population burden of alcohol misuse and illicit drug use is significant. These patterns have brought the subspecialties of trauma and addiction psychiatry to the forefront and highlight the need for novel treatments that integrate psychotherapeutic and psychopharmacological modalities.
Colombia’s expenditures for healthcare, equivalent to 7.6% of the GDP, fund a two-tiered system that has attempted to achieve nearly universal cover[1]age (Yepes Lujan, 2012). The contributory health insurance system for employers and their formally contracted employees covers healthcare provided by 22 ‘EPSs’ (akin to health maintenance organisations) for 44% of the Colombian population. The remainder, including those who are poor or un[1]employed, receive ‘subsidised’ healthcare paid for by taxes and other deductions from workers’ pay. There are gross disparities between the coverage and care provided within the two systems and Colombia’s healthcare faces a grave crisis due to widespread corruption and regulatory failures (Yepes Lujan, 2012). A mechanism has been put in place to allow persons to sue for delivery of proper medical care but, in practice, this is crippling the system.
……
Mental health workforce About 900 psychiatrists (including 45 child psychiatrists) and 1500 psychologists are tasked with delivering mental healthcare in specialty medical centres, general hospitals and psychiatric facilities. Ninety per cent of psychiatrists are concentrated within Colombia’s ten largest cities. Specialisation in psychiatry requires a 3-year residency programme (residents pay for their tuition and receive no compensation) based in 11 medical schools nationwide; currently about 100 resident physicians are in training. Psychiatric training focuses on psychodynamic therapies and pharmacotherapy, with the recent addition of training in cognitive–behavioural and systemic therapies.[6]
[6] ‘Mental health in Colombia, Country Profile’, Roberto Chaskel, Silvia L. Gaviria, Zelde Espinel, Eliana Taborda, Roland Vanegas and James M Shultz, Cambridge University Press, 2 January 2018, training focuses on psychodynamic therapies and pharmacotherapy, with the recent addition of training in cognitive–behavioural and systemic therapies.
Hence, while there are shortcomings in the system, the applicant could avail himself of some assistance in the largest citiies.
Other serious harm
The Tribunal does not dismiss that life in Colombia will be challenging for the applicant in light of the political and security situation in that country. However, in finding that the applicant does not have a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group, or political or imputed political opinion, and having excluded that the applicant will suffer serious harm in finding that he will not face a threat to his life or liberty, or that he will face significant physical harassment or and/significant physical mistreatment, the Tribunal is also required to assess whether the applicant will face significant economic hardship that threatens his capacity to subsist, whether he would be denied access to basic services where that denial threatens his capacity to subsist; and whether the applicant would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist.
In terms of the current economic situation in Colombia:
The global economy has experienced a soft landing. Inflation will continue to decrease due to reduced dynamics and supply normalization, although concerns will not completely disappear, and rates will remain at contractionary levels for a long time. The world will grow by 3.1% in 2024 and 3.3% in 2025.
Recovery signals in Colombia are still uncertain, but they indicate that the inflection point should be in the second semester. Lower interest and inflation rates, increased domestic savings, high utilization of industrial installed capacity, and the execution of civil works are positive signals. In the future, households will accelerate spending on goods and moderate it on services, and investment will be driven by civil works and machinery first, and then by buildings.
Inflation in Colombia will continue to decline, albeit with less momentum in the coming months, to reach 5.4% in December and 3.8% by the end of 2025. The Central Bank could accelerate its rate cuts at the end of the year, positioning it at 8.5% by the end of 2024 and 6.0% in 2025.
Monetary policy, both internal and external, will be the main determinant of exchange rate behavior. The peso will depreciate in the second half of the year, stabilizing at around 4,200 pesos per dollar during 2025. Macroeconomic imbalances will also drive this performance: a fiscal and external deterioration is expected in 2024; in 2025, the fiscal deficit will be lower, but the external deficit will continue to increase.
Increasing potential output is the most important challenge facing the country today. Without investment and merely hoping for favorable winds, it will be difficult. It is necessary to be proactive in consolidating the plans proposed in the report to improve growth and the standard of living of Colombians.[7]
[7] ‘Colombia Economic Outlook. June 2024, Colombia Economic Outlook. June 2024 | BBVA Research.
The World Bank has written:
Colombia’s solid macroeconomic institutional setting, grounded on a rules-based fiscal framework, a flexible exchange rate, and a modern inflation-targeting regime, has been the cornerstone of its macroeconomic stability. Yet, the pace of economic growth has been slowing. Colombia has significant potential to enhance its contribution to GDP growth by increasing productivity and further diversifying and expanding its exports. Addressing infrastructure gaps, improving educational outcomes, and strengthening institutions are crucial steps to further boosting the country's economic development.
Macroeconomic imbalances that surfaced during a strong post-pandemic economic recovery are correcting rapidly, with declining inflation and fiscal and external deficits. The economy expanded 0.6% in 2023, as the needed un-winding of stimulus policies and heightened policy uncertainty affected fixed investment. The poverty rate is estimated to have remained stagnant in 2023, as labor markets showed limited improvements. The economy is projected to expand 1.3 percent in 2024.
Colombia is a country of large social and territorial inequalities. To reduce poverty and promote prosperity across the country, it's crucial to increase productivity and reinvigorate regional convergence, improve the social security system, create more efficient and inclusive labor markets, and strengthen the intergovernmental fiscal transfer system to enhance the accessibility to and quality of public services across the country.
Colombia is also particularly vulnerable to the effects of climate change. On the one hand, climate shocks affect livelihoods and assets across the territory, undermining welfare improvements. On the other, Colombia is exposed to the reduction in fossil fuel demand as the world decarbonizes. Reaching the country’s ambitious climate targets could help reduce vulnerabilities and promote a more diversified economic structure in the long run.[8]
[8] ‘The World Bank in Colombia’, 3 April 2024, Colombia Overview: Development news, research, data | World Bank.
The Tribunal notes that the applicant has spent a good deal of time in Australia and that his language skills in English have evolved meaning he would be able to find work in any sector such as the tourism sector needing English language skills. The applicant has also turned his hand to various trades in Australia which means he has experience at an international level in being able to offer marketable skills in the Colombian context. The applicant’s mother also lives in Colombia and therefore he would not be deprived of a familial network and given his capacity to adapt in Australia in finding new friends and a social circle, the Tribunal finds that the applicant would not suffer economic, mental, emotional or other deprivations in his home country. And the Tribunal has no evidence that the economy of Colombia or the state would target the applicant to deprive him of the capacity to earn a livelihood of any kind or deprive him of services, even if those services might not be to the standard of those in Australia.
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
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).
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.
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 criminal gangs and syndicates, the Mafia, the authorities in Colombia, instruments of the government, paramilitary groups, counterintelligence authorities, or criminals acting outside the government structure.
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.
The Tribunal has acknowledged that the applicant might encounter/witness violence as part of the general situation in Colombia. However, under s.36(2B)(c) there is taken not to be a real risk if that real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. Hence, while there is some risk the applicant might be the victim of gangs such as La Oficina or Cali, or other Mafia-type groups, by way of collateral damage or in some other manner, the Tribunal finds that the applicant is at no greater risk than the population at large in Colombia who faces the fall out from gangs who attempt to revenue raise by extorting money or by simply being at the wrong place at the wrong time.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
Member

Postcript: The applicant claims he ended up in the situation he was in being unlawful because a migration agent lodged his student visa a day late, leading to the circumstances in which the applicant finds himself now. The Tribunal would urge the applicant to lodge a complaint with the Office of the Migration Agents Registration Authority, Office of the Migration Agents Registration Authority (mara.gov.au) about this matter providing as much material as he can.
It is also open to the applicant to seek his migration agent’s assistance to seek Ministerial Intervention in his matter given as the applicant claims his pathway in Australia has been hell, due to the one error of his migration agent. The applicant would of course need to demonstrate that his circumstances meet the relevant guidelines.
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 4423

1 October 2024

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Immigration

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