2208974 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a Colombian national. The applicant claimed he feared persecution by a Mafia-related group in Medellin upon return to Colombia, stemming from an incident in January 2016 where he intervened in an altercation involving his girlfriend and her boyfriend, who was allegedly associated with the powerful La Oficina de Envigado cartel. The applicant asserted that this incident led to him being assaulted and threatened, causing him to remain in Australia unlawfully after his student visa expired due to a migration agent's error.

The Tribunal was required to determine whether the applicant met the definition of a refugee under section 36(2)(a) of the Migration Act 1958, specifically whether he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Alternatively, the Tribunal had to assess whether the applicant qualified for complementary protection under section 36(2)(aa), meaning there was a real risk of significant harm as a necessary and foreseeable consequence of his removal to Colombia. The Tribunal also considered the mandatory considerations outlined in Ministerial Direction No. 84, including relevant Refugee Law Guidelines and country information.

In its reasoning, the Tribunal noted that the applicant had not established a well-founded fear of persecution. While acknowledging the incident in Colombia, the Tribunal found that the applicant had not demonstrated that he was targeted for reasons falling within the prescribed categories for refugee status. Furthermore, the Tribunal concluded that the applicant had not established a real chance of suffering significant harm upon return to Colombia, nor had he demonstrated that he was unable to access effective protection within Colombia or relocate to a safer area. The Tribunal also noted the significant delay in the applicant's application and raised credibility concerns, ultimately finding that the applicant did not satisfy the criteria for either refugee status or complementary protection.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa. The Tribunal also suggested that the applicant consider lodging a complaint with the Office of the Migration Agents Registration Authority regarding the alleged error by his migration agent, and explore the possibility of seeking Ministerial Intervention, provided he could demonstrate his circumstances met the relevant guidelines.