2209521 (Refugee)
[2023] AATA 2744
•15 May 2023
2209521 (Refugee) [2023] AATA 2744 (15 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2209521
COUNTRY OF REFERENCE: Colombia
MEMBER:Melissa McAdam
DATE:15 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 15 May 2023 at 11:51am
CATCHWORDS
REFUGEE – protection visa – Colombia – sister-in-law’s refusal to sell illegal drugs from her [business] for criminal/terrorist gangs – niece’s father’s refusal to help FARC store materials – applicants’ subsequent fear of harm – threats from former student clients and/or franchise holders – general insecurity in Colombia – poor economic situation – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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 dependants.
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 29 June 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Colombia, applied for the visas on 20 August 2019.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Protection visa application
The first named applicant is the son of the second named applicant. He was born in [year] and the second named applicant was born in [year]. The first named applicant first came to Australia in 2011 on a Student visa. Since then he has departed and returned several times. His last return to Australia was in September 2017.
Regarding his claims for protection the first named applicant merely wrote that the protection claims by his brother, [Brother A], and sister, [Sister A] should be referred to.
The first named applicant’s brother’s ([Brother A]) claims for protection rely upon the claims set out by his wife in their Protection visa application. The first named applicant’s brother’s wife is now unfortunately deceased. In her Protection visa application statement the first named applicant’s brother’s wife set out the following:
a.She worked at an independent [business] in [Location 1] in her home town of Cali Valle in Colombia.
b.She ran the [business] for five years from 2010. She was a very well known sales woman amongst the people living near [Location 1].
c.From 2012 unusual people began walking around [Location 1]. By the end of 2013 more strangers were arriving in [Location 1]. She saw more movements around [Location 1] including sellers and buyers of all ages and social status.
d.In the middle of 2014 a man offered to involve her in the business of distributing stupefacients for a number of people working in the area. She told him she was not interested. At the beginning of October 2014 a well-dressed man told her to work for him as a supplier and distributor of drugs. She said no and he attempted to persuade her by offering large sums of money but she still said no.
e.At the end of October 2014 a stranger came to her saying that if she refused a new offer his boss would take action against her and may even send anonymous information to prejudice her future with law enforcement authorities.
f.She communicated these incidents to her husband and he mentioned them to her sister-in-law’s [husband]. [He] told her husband that he was experiencing similar threats and was planning to travel with his wife to Australia as soon as possible.
g.She and her husband then began to think to do the same. They contacted her husband’s brother who is in Australia who helped them apply for a Tourist visa. They were granted a Tourist visa in December 2014.
h.She is concerned that the illegal gang will jeopardise her reputation and her family’s safety. When members of the public don’t cooperate with extremist armed groups the groups take action against family members by kidnapping the children to fight against the government. She fears her two children will be kidnapped by FARC members. As far as she knows FARC are the group managing the illegal distribution chain in the Oasis de Comfandi area.
i.It was not appropriate for her to contact the authorities because FARC would then take action against her and her children. FARC have infiltrated almost every government entity in the country.
j.She and her family did not try to move to another part of Colombia because wherever you go there are cells of FARC acting as informants and investigating new arrivals.
The first named applicant’s sister’s ([Sister A]) claims for protection rely upon the claims set out by her daughter in their Protection visa application. In her Protection visa application statement the first named applicant’s sister’s daughter set out the following:
I left my country Colombia [in] July 2012, with an Australian Student visa. At that time I had no problems neither my family. However, my father [was] the administrator of three premises for rent; two of them owned by his brother in law … and the
third premise[s] owned by his [sister]...According to my father[’s] narrative, he was approached by urban squad members of the
Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed Forces of Colombia -
FARC); the purpose of their approach was to request him to store for them some bulk.
packages containing some powder material for redistribution to other people in the surrounding
urban zones of Cali.On 6th August 2014, my father visited the tenants of the premises mentioned in the first
paragraph; the tenants normally pay their rent every 1st of each month, if not, five days later.
Therefore, in that month he went to collect the rent on the 6th of August. When payment were
made, two men on a motorcycle approached him. After of several minutes of introducing
themselves, they requested him to store some powder material for a few months, apparently
they would use such material to be redistributed to other people working for them in Cali.Because his refusal to agree with such request, "they warned him that his family members
would be kidnapped; making emphasis on his older son [and] his daughter [will] be taken from the airport in Bogota when returning home from overseas". My father was surprised of their knowledge that I was overseas; asking himself how they knew where I was at the time he was threatened.Then, on the 6th September 2014, my father went for the rent payment of that month. After
collecting the rent payment he was approached again by the same two men. They asked him
when he could come back in order to bring the powder material for storage into the three
premises. My father response was "I have to contact the premises owners, in order to receive
their consent to do that for them, he explained that it was difficult for him to make contact with
them because his brother in law was a busy man and his sister was overseas. Then, they told
him that by next month he has to come back with an answer for their request.On the 5th October 2014, he went to collect the rent payment and again was approached by
the same two men. Then, my father told them he could not talk to the premises owners in
regards to their request. The two men were disappointed telling him that as soon as possible
he had to contact them otherwise they would take other steps to force him to comply with their
request.In order to avoid those men, my father went to collect the rent payment on a different date; the
€
on the same date 7th November 2014; apparently, the call was made by one of the two men
whom approached him the previous times. On this occasion the man calling him said to my father, that they would no longer wait for more time for his response to their request. Therefore, they made threats that they would kidnap one of his family members, probably his oldest [son]. Because of previous threats to my father family's members, he began together with my mum ([Sister A]), to communicate with my father's brother in law [who] was in Sydney, informing him what was happening to him. My uncle told my father to start preparing to leave Colombia.On the 6th November 2014, an application for tourist visa was lodged at the Australian
Embassy in Santiago de Chile; the visa was granted on 9th November 2014. Due to my
father's job he could not get permission to be absent from his job. The permission was granted
later and the journey was planned for the [date] January 2015; the journey was postponed due €to problems of transboarding in [name] airport. The journey was on the [date] January 2015.Then, the following month my father sent a friend of him to make the rent payment collection
(7th December 2014). From that date my parents were upset because of the delay of the job
permission for my father. Then, again the intruder called my father asking when he was going
to collect the rent payment for that month.On the 7th of January my father again sent his friend to make the rent payment collection. On
the 10th of January 2015, the man called my father and making a final threats "You come here
by the beginning of February and receive the first bulk package for storage".Then, on the [date] of January 2015, my parents together with my two brothers flew to Australia.
On 9 May 2022 the applicant’s representative submitted further statements from the first named applicant outlining the following:
Before to come to Australia ([date] September 2011) I always lived with my [mother], my brother called. [Brother A], my sister in law called [Sister-in-law A] and my [nephews]. We worked as an independent [business] at [[Location 1] located[in] Cali Valle, Colombia.
We kept that independent [business] for the 5 years (between 2010 and 2014). We were a very well-known sales team amongst the people living nearby [Location 1]. It was normal to take part of lotto/chance ticket local sales; for fundraising events for good causes.
Since 2010, nobody came close to the [business] in order to propose to us to take part of any activity managed by third parties. We never were “invited” by any illegal group or unlawful gangs selling illegal merchandising to join them and be part of a distribution chain. On July 2011 when I finished my Bachelor [Degree] …. So, I decided to study English in Australia, my student visa was approved on 17th September 2011, travelled to Australia on [date] September 2011 and arrived on [date] September 2011.
However, since 2012 unusual people began walking around [Location 1] where my family continued working as independent [business owners]. By the end of 2013, more stranger were arriving to [Location 1]. My family saw more movements around, sellers and buyers of all ages and social status.
Then, in the middle of 2014 a man offered my family to get into the business as a distributor of stupefacients for a number of people working in the field. My family said to him that we were
not interested. At the beginning of October 2014, a well-dressed man came to my family after a short conversation he told them to work for him as a supplier/distributor of some kind of drugs.
In replied their answer was “No”, he attempted to persuade them offering large sums of money, still they said “No”. Later at the end of October 2014, a stranger came to them saying that “if I refuse to a new offer he will give to them as a new opportunity to make a lot of money, his boss will take some actions against them and even worse, he would send them some anonymous information that might prejudice their future with officers of law enforcement authorities.My mother and sister in law communicated those incidents to my brother and my brother mentioned it to [the] husband of my sister[Sister A]. He mentioned to my brother that he was experiencing similar threats and was planning with his wife and sons to travel to Australia a soon as possible due to received threats against his family members. When he informed that to them, then, they began to think to do the same.
My family contacted me and I made the application for them for a tourist visa and also for a transit visa through the USA, because I said them that the air tickets are cheaper travelling through the United States of America.
On the 13th of October 2014, my mother lodged a tourist visa application at the Australian Embassy in Santiago de Chile. On 10th of November 2014, the Embassy granted a tourist visa for her.
On the 6th of November 2014, my brother and his family lodged a tourist visa application at the Australian Embassy in Santiago de Chile. On the 9th of December 2014, the Embassy granted a tourist visa for the whole family members.
The reasons why I left Colombia are:
• We received threats from the Revolutionary Armed Forces of Colombia (FARC) to pressure us to join the distribution of illegal drugs.
• We received verbal threats from stranger people called Revolutionary Armed Forces of Colombia (FARC).
• Colombia violate human rights: Significant human rights issues included: reports of unlawful or arbitrary killings; reports of torture and arbitrary detention by government security forces and illegal armed groups; rape and abuse of women and children, as well as unlawful recruitment of
child soldiers by illegal armed groups and criminalization.The reasons why I am seeking protection in Australia:
• My family members and I have received “death threats” on several occasions for the Revolutionary Armed Forces of Colombia (FARC) and Colombian Students Group Overseas. In Colombia the increase in homicide rates, drug trafficking, and common crime have caused fear and despair among the public opinion. According to surveys, there is a growing perception of insecurity since 2020 in both rural and urban areas.
• The 52-year armed conflict between the Revolutionary Armed Forces of Colombia (FARC) and the government officially ended with a peace accord in 2016. Despite an initial overall decline, conflict-related violence has taken new forms and serious abuses continue.
• Previous claims still stand; however, due to circumstances experienced in Australia during the period 7th of June 2018 to 12 April 2019, a group of Colombian Student sued me demanding reimbursement of money paid for unresolved CoEs and pending decision for student visas applied before the DHA that was out of my control to resolve the issues involved. For those unresolved demand of reimbursement of money, my family members and I have received “death threats” on several occasions.Clarifications Relationship
[Brother A] ([DOB]) is my brother,
[Sister A] ([DOB]) is my sister and
[Name] ([DOB]) is ours mother.
We are children of the same mother but different father.My family has always been very close to me and we are living here together in Sydney since 2014. Also, we saw the needily to settle in Australia for our situation mentioned. Australia is a
safe and developed country with many opportunities for the legally residents. To be honest I do not want to separate from my family, I want to be with them in good and bad times, supporting and helping us always. So, getting ahead with the help of God firstly and the opportunity that the Australian Government gives us as protected or refugees by contributing to development of the country.Further Information and Documentary
• The relationship with the author of the statement is my sister in law called [Sister-in-law A] who was my brother’s wife. They got married [in] 1996 in [Colombia]. As you know she paced away [in] November 2018 as result of the “death threats” on several occasions for the Revolutionary Armed Forces of Colombia (FARC) and Colombian Students Group Overseas. See attached NSW Death Certificate | Registration No. … and Marriage Certificate No ….• As mentioned in the beginning we were “invite” to take part of a distribution chain for the sale of illegal merchandising in the surrounding area of my [business]. Lately, again we were “cautioned under threat” to take part of a distribution chain for the selling of illegal merchandising. The “cautioned threat” was as follows:
“If we refuse to a new offer he will give to us as a new opportunity to make a lot of money, his boss will take some actions against us and even worse, he would send some anonymous information that might prejudice our future with officers of law enforcement authorities”.Therefore, we are concerned that this “illegal gang” will jeopardise our reputation and my family member’s safety if anonymously reported to the Law Enforcement Authorities of any illegal activity apparently managed by us from the [business].
• People who are members of extremist armed groups when members of the public do not cooperate with them, they take action against family members by “kidnapping kids and adults” taking them away from their families in order to become part of their fight against the government.
Therefore, If we do not become part of their illegal distribution chain my family member’s will be at risk of being kidnapped by members of the urban cells of the Revolutionary Armed Forces of Colombia (FARC); as far as we know they are the group managing the illegal distribution chain in the surrounding area of [Location 1].
• We received harm although it was not physical, it was a “psychological harm” to the whole family.
Delay in Lodgement
The reasons why I made the application for protection visa was because the period from June 7, 2018 to April 12, 2019 due to circumstances experienced in Australia, a group of Colombian
students sued me demanding reimbursement of money paid for unresolved Confirmation of Enrolments (CoE) pending decision for student visa applied before the Department of Home Affairs that was out of my control to resolve the issued involved. So, of those unresolved demand of reimbursement of money, my family members and I have received death threats on several occasions.Travel to [Country 1]
• The purpose of my travel to [Country 1] was holiday and visit the beautiful places in this country.
• The reasons why I did not apply for a protection or refugee visa in [Country 1] were because my intention were just a holiday and visit the amazing places in this country.Travel to [Country 2]
• The purpose of my travel to [Country 2] was just a transit stay to wait the plane for next destination.
• The reasons why I did not apply for a protection or refugee visa in [Country 2] were because my intention was just to stay for a hours waiting for my next trip destination.Return to Colombia
• As I mentioned in last response My family members and I have received “death threats” on several occasions for the Revolutionary Armed Forces of Colombia (FARC) and Colombian
Students Group Overseas. The last reason was between the period 2018 to 2019 after my last entry in Colombia (2017) for work reason. Under my family members and I circumstances was not appropriate to seek help within the country after harm because the members of the FARC would take serious actions against us or against my family members. The FARC has infiltrated members in almost every government entities operating in the whole country. Then, for safety reasons we decided not to give information to government authorities in Cali – Colombia.Relocation
Wherever I move to, there are urban cells of FARC acting as informants and those new arrivals are investigated amongst them to see if there was any relationship between the new arrivals and the FARC. Therefore, moving to another part within Colombia is not the right decision if people are involved as targets by the group in reprisal for refusing to participate as requested by them.As I mentioned my family and I would be seriously affected. The reason for thinking this is the cautioned threat received. At this time, they would know that my family and I no longer live and work in Cali. Therefore, if we return to any part within Colombia we will be noticed and respectively investigated. When they find out of our past connection or being contacted by urban members of the FARC, they will take action of kidnapping of my family members.
State Protection
We think that if we request protection to the authorities, it would be a struggling time because I will be fully investigated by them, the investigation process will take a long time and the FARC might be informed about that by their infiltrated members and actions will be taken against my family before the investigation process finalise.As I mentioned, it would not be possible to relocate within Colombia; the reason is obvious, the FARC has a well organised network operating in Colombia. They have infiltrated almost every government entity within the whole country. They have urban cells working as “informants” all
around Colombia. Therefore, relocation within Colombia is most dangerous that coming back to the traditional past address.If we come back to the traditional address, we may be given a new opportunity to join them as last chance; if we go back and relocate within Colombia, they will not offer we a fresh opportunity they will take action by kidnapping of my family members. Therefore, relocation within Colombia is not the right choice.
On 9 May 2022 the applicants’ representative submitted a typed written statement which largely repeats the information in the first named applicant’s written statement.
Departmental Interview
According to the information on the Department’s file the applicants were not offered an interview.
Delegate’s Decision
The Delegate did not accept that the applicants’ family members were involved or had ownership in a [business] in Cali Valle. The Delegate did not accept the applicants and their family members were pressured and threatened by the FARC to join the distribution of illegal drugs.
The Delegate did not accept the first named applicant was sued by a group of Colombian students and that he and his family received threats due to this reason. The Delegate was not satisfied that either of the applicants had a profile that would be of interest to the Colombian authorities or anyone else in Colombia.
The Delegate was not satisfied that the applicants had a well-founded fear of persecution in Colombia, or that they were owed complementary protection.
Information to the Tribunal
Pre-Hearing Submissions
In February 2023 the first named applicant submitted the following document copies to the Tribunal without any accompanying explanation:
- ASIC Company documents for ‘[Company 1]’ naming the first named applicant as the Director and Secretary.
- A BUPA invoice to the first named applicant and ‘[Company 1]’ showing the amount payable as approximately $23,000.
- An international Education Agent Application Form in the first named applicant’s and his company’s name.
- Several bills, invoices and company forms related to the first named applicant’s company.
- Country information regarding Colombia, FARC, and the situation in [location].
- His Birth Certificate and his sister-in-law’s Marriage Certificate and Death Certificate.
- Photographs of the first named applicant’s sister-in-law at her place of work in Colombia.
- Photographs of the applicants and other family members.
- A medical report regarding the second named applicant.
- The first named applicant’s Colombian passport
- An education diploma, course invoice and student ID card in the first named applicant’s name.
- Character references for the first named applicant and the second named applicant.
- Pay slips to employees of the first named applicant’s company.
- The employee list of the first named applicant’s company.
- Numerous (approximately 50 separate documents) lengthy Vodaphone lists of phone numbers recorded against the first named applicant’s telephone number. Each document lists up to hundreds of calls.
Tribunal Hearing
The first named applicant appeared before the Tribunal on 14 March 2023 to give evidence and present arguments. The second named applicant did not appear. The following is a summary of the information provided by the first named applicant at the hearing:
a.He applied for a Protection visa because he was threatened with death by a group of international students. He has a company which brings over students to Australia. He was a victim of defamation because his company was growing larger. The competition was trying to find a way to make him look bad in the eyes of international students in Australia.
b.The network of students in his company started to ask him for refunds of money they had paid for their visa process. Because the visas were still being processed he could not give them refunds. So the students turned to the law and started to defame him on social media, using photos of his face.
c.Because his company grew he sold franchises in three different cities in Colombia. As a result of the defamation the company closed down and the franchises started asking the applicant for money. He didn’t have the money immediately to return to them so he started to receive threats against him and his family.
d.He started receiving the threats in May 2018. He still receives calls asking him for money otherwise ‘they’ will take action against him and his family. The threats are from people in Colombia. The people are the parents of the students.
e.It all came as a result of international students and crime. Generally they have no compassion. He means the group of international students.
f.The first named applicant doesn’t know any of the individuals who are sending him threats. If he did he could turn to the law. The threats are anonymous. In 2018, 2019, 2020 the threats were constant. He would receive anonymous phone calls every day. More recently they occur two or three times a week, especially on weekends. He receives the threats via phone calls and also on the social media for his company. His company email address has been closed.
g.The Tribunal asked the first named applicant if he was receiving threats by international phone calls. He responded that they are anonymous and just say a private number or anonymous. They are from Colombia. He knows this because they are in Spanish and because of the accent. He knows they are Colombian. The Tribunal put to him that they still might be calls from within Australia. He responded that they could be but he determined they are from Colombia as the root of the problem is in Colombia not Australia.
h.In the phone threats the callers say please we need an immediate refund of the money or they will take it out on the first named applicant or his immediate family. Fortunately all his immediate family are in Australia. They cannot return to Colombia because of this.
i.‘They’ call every day and use defamatory words and filthy language against the first named applicant. They are upset because of the defamation on social media and they called the first named applicant a cheater and swindler even though his company was going well. They said he was cheating the international students so they started asking him for their money back. The Tribunal asked what sort of cheating he was being accused of and he replied visas were being processed so when they asked for a refund it was not possible. The Tribunal asked the applicant if he knew what cheating he was being accused of and he responded no, he didn’t know. The Tribunal asked if the students knew and he responded obviously they did because they asked for refunds. The Tribunal asked what they thought the applicant was doing wrongly and he responded because of the defamation against him on social media that he was a cheat. The Tribunal put to him that it sounded as if no one knew what cheating he was being accused of and he responded that they turned to the law and it investigated. He just tried to help people as he liked people.
j.He is not a registered migration agent, he is an education agent and his company is called [Company 1]. The Tribunal asked who investigated the first named applicant and he responded the police, it was not immigration. He has a copy of the police investigation report. He will submit it after the hearing.
k.His company is still operating but because of the pandemic it is just him now.
l.The Tribunal asked the first named applicant why he had submitted many pages of phone logs if the threats were recorded from a ‘private number’. The first named applicant appeared a little confused so the Tribunal asked him to highlight the phone calls in the logs which are relevant to his claims, and set out why, and resubmit the log, after the hearing. He agreed to do so.
m.The Tribunal asked the first named applicant what the police were investigating him about and he responded taking money from students. He would advise students regarding the school they wanted to apply to. Students would apply to the school and enrol in it. The school would generate a Confirmation of Enrolment (CoE) and the student would pay the college. As education agents his company were paying the medical insurance and the cost of applying for the visa on behalf of the students. If the visa application was unsuccessful the students had to wait for a refund.
n.The first named applicant’s company had an agreement with the colleges to get a commission on student referrals. The commission was about 25 to 30% of the tuition fee. The colleges are still operating.
o.The students would pay his company the money for the insurance and visa application fee.
p.The Tribunal asked the first named applicant if what he did was legal and he responded yes. The Tribunal asked him why the students were unhappy and he responded because of all the information about his image. The Tribunal asked him if the students were successful in obtaining their visas and he responded yes. The Tribunal asked why there would be a problem then and he responded the problem is all about jealousy because his company was growing. Unfortunately the students would not stop complaining about the first named applicant because the people who got their visas turned against him. The Tribunal put to him that this made no sense. He responded that he agreed and that is what he asks himself. The Tribunal asked him if he asked the people who threatened him why they were doing this and he responded he did and they said they didn’t want to continue with the company service, so he decided it was jealousy. The Tribunal put to him that the people were students not his competitors so why would they be jealous. He responded that some visas were approved and some were denied. They were denied because the department determined maybe the person was not a genuine student or did not have a good education record. The Tribunal asked if the college would then refund the fees and he responded eventually but it was done through the education agent, not the college. Requests would go through his company.
q.The Tribunal asked the first named applicant how many students were still owed refunds from the colleges and he responded 16. The Tribunal asked if they would get their money back and he responded that he hoped so.
r.As a result of many colleges owing the first named applicant commission fees and cancelling agreements with him he didn’t have funds to refund the students and be in their good books. The colleges cancelled their agreements with the first named applicant because of the defamation. It was in every state of Australia, a huge defamation.
s.The 16 students are owed $100,000. They have been owed this money since 2018. He is still working with the company and getting visas approved.
t.The Tribunal asked why the students hadn’t received their money in the past five years. He responded that he didn’t have the cash flow to pay the refunds as he lost the commissions. The company was also on standby during the pandemic border closures.
u.The Tribunal asked why the colleges had not provided the refunds after 5 years. He responded that he did not know, they should have. The colleges do not pay immediately. Some of the colleges closed during the pandemic. The Tribunal put to the first named applicant that it did not sound as though the students would get their money back. He responded that he wants to get his company up and running so he can pay them back. It will come out of his pocket because he wants his company to look good. He estimates it will take three years. The company is still growing so he needs time.
v.The Tribunal asked where the students are. He responded that he knows who they are but he doesn’t know where they are. He has their personal information.
w.The Tribunal asked why he believed the threats were coming from them. He responded that money is owed to them and the franchises were sold. When they call him they say they need the money refunded to them. So it could be the students or the franchise owners. He is not sure, they just ask for refunds.
x.He can submit a copy of the defamatory material on social media to the Tribunal. The Tribunal asked if any of the threats he received were in writing. He responded he received some on [social media] but he is locked out because of non-payment. He owes them $480. He can pay this and unlock the account. He wants to do this so he can promote his company.
y.The Tribunal asked the applicant why he thought the people calling him would harm him. He responded that if he didn’t pay them back obviously they will take reprisals against his life and his family. The Tribunal asked him if he wanted to say more about this and he responded that his intention is to give them back these refunds as he understand this is money the students have invested.
z.The Tribunal asked the first named applicant if he tells the callers that he hopes to pay them the money they are owed by the colleges within three years. He responded he has told the people calling him that he hopes to be able to refund them but not when. He tells them to just wait until he gets back up and running so he can repay them. The Tribunal offered the first named applicant a break and the hearing was briefly adjourned.
aa.The Tribunal asked the first named applicant if he maintained that he was cleared of the accusations against him and he responded yes.
bb.The Tribunal put information to the first named applicant under s 424AA of the Act that during the short adjournment it had located some information available on the Internet about a court case against him in Australia, which indicated he had been arrested and convicted of charges relating to his student visa business. He responded that he pleaded guilty because he is the company director. He had to face up to the students as he was the entity between them and the institution. It was very clear to him and he was aware if money had to be paid back to students he needed to plead guilty. In the police investigation report they didn’t find evidence of fraud. They investigated all of his accounts. He has the packet of documents from the police investigation as the police gave it to him. Someone told him he would need to plead guilty to face up to the students to pay them. The Tribunal asked the first named applicant who told him that and he responded the DPP. So he had to plead guilty and face the students. The Tribunal asked why he would need to plead guilty to fraud to be able to pay the students and he responded that is what he was told. The Tribunal asked if he had a lawyer and he said yes from Legal Aid.
cc.The Tribunal asked the first named applicant what the accusations about defrauding medical insurance related to. He responded it was not fraud they just determined this. His company had an agreement with BUPA as they obtained the insurance through BUPA. His company would get the invoices but some of the invoices were affected by no cash flow, so his company paid them delayed after the fact.
dd.The Tribunal asked the first named applicant if he could explain this further. He responded that BUPA would generate invoices each month for insurance policies. When they did not receive payments on time BUPA would not activate the membership. So a student who went to use the BUPA service was told their service was not active. That was the cause of the complaints.
ee.The Tribunal asked if he meant that a student who obtained a visa and paid their insurance would then be told their insurance was not active. The applicant responded yes but he was going through a cash flow problem.
ff.The Tribunal asked the first named applicant if the court ordered him to repay the students $100,000 and he responded yes.
gg.The Tribunal put to the first named applicant that he had previously told it that the refunds related to 16 students who didn’t get their visas. He responded that the 16 students were the ones who complained and started the court case. The Tribunal asked if they obtained their visas and he responded not all of them. The Tribunal asked him how many did and he responded three were refused but 13 were approved. The Tribunal asked the first named applicant to confirm if most of them obtained their visa and he responded yes. The Tribunal asked him if they were therefore mostly complaining that their medical insurance had not been activated and he responded yes.
hh.The Tribunal put to the first named applicant that it seemed it was not accurate that he was waiting for colleges to repay money so he could the repay the students. He responded this was just for the three whose visas were refused. The Tribunal asked the first named applicant why their visas were refused and he responded because the Department considered they were not genuine students. The Tribunal asked how they could then be involved in a court action against him and he responded that they said he needed to give them a refund for what they had paid him. All this started with the defamation.
ii.The Tribunal asked why he described it as defamatory if he wasn’t providing the insurance money to BUPA. He responded that he did pay the money but at that time there were the internal problems of his company. The company was having financial problems because it had a large sum of money invested in training and a conference in Colombia and Mexico in seven cities. They didn’t get a return immediately so they failed.
jj.He has repaid $6,000 of the money he owes the students. This was to one student. That student was chosen because it was an amount closest to what was owed to them, which was $7,600. This student did get a visa.
kk.The Tribunal asked the first named applicant if there was any other reason he feared harm in Colombia and he responded yes because all his family are here and they have problems going back to Colombia. They are very close so he fears for them.
ll.There is a lack of safety in Colombia. All those groups who operate on the edge of the law, drug trafficking at every level in the country, and economic conditions are not the best.
mm.It is very normal to have problems with groups for people who are publicly recognised like ones who sell [product]. His mother was able to sell [product] so the family was very exposed.
nn.His mother and sister-in-law sold [product] together in Colombia. The Tribunal put to the applicant under s 424AA of the Act that his sister-in-law had made no mention of his mother selling [product] with her. The applicant responded that they always lived together in Cali. The person who started the business was his mother. They lived with his sister-in-law who helped his mother. When his mother came to Australia in November 2014 his sister-in-law was in charge of selling things. So she didn’t mention his mother because his mother was already here visiting him. He doesn’t know why she didn’t mention his mother. When she had the problems his mother was in Australia with him.
oo.The Tribunal asked the first named applicant when his sister-in-law had the problems in Colombia and he responded that he didn’t remember but his mother was in Australia then. The Tribunal put to the first named applicant under s 424AA of the Act that his sister-in-law had stated that her problems occurred in October 2014 so before his mother arrived in Australia. He responded that his mother was here then all the problems happened with his sister-in-law. She never mentioned anything to his mother. When she did tell them his mother was here with him.
pp.He was very close to his sister-in-law and she has passed away in Australia. He thinks she did not tell his mother about the threats so as not to worry her. When it got out of hand with the threats his mother was with him.
qq.The Tribunal asked the first named applicant when his mother stopped working in the [business]. He responded that he came to Australia in September 2011. His mother worked for a few months after that, so she stopped a few months after September 2011. The Tribunal asked why anyone would be interested in harming her then and he responded because they all lived together with his sister-in-law. The Tribunal put to him that he was mostly living in Australia from September 2011 and he responded yes.
rr.The Tribunal asked the applicant why he returned to Colombia if he feared harm there. He responded for his business and the company, in 2016 and in 2017, and also for the conferences and franchises.
ss.The Tribunal asked the first named applicant if he was still claiming to fear harm in Colombia because of his sister’s ([Sister A]) daughter’s father’s problems. He responded yes when he talks about his family he means them too. The Tribunal asked what he feared because of his sister’s daughter’s father and he responded one of the people who threatened them could come after his life. They always have information on the family. When a group marks a person they know all about the person. The Tribunal asked the first named applicant if this concern for his safety was a serious one and he responded yes. The Tribunal asked him why then he had not mentioned it before during the hearing. He responded because he talked about his family and included all of them. The Tribunal put to the first named applicant that he had not specifically mentioned anything about sister’s daughter’s father and he responded if the Tribunal asks him he will answer. The Tribunal put to the first named applicant that it had asked him several times what he feared in Colombia and he responded that the question was not clear. The Tribunal asked why it was not clear and he responded that he thought it related to outside the country.
tt.The Tribunal put to the first named applicant under s424AA that the Tribunal (differently constituted) and the Department had not found his sister’s daughter’s claims about her father’s problems in Colombia credible. He responded that if the Department and Tribunal found it not credible he witnessed it even though he was in Australia, as he knows the situation in Colombia. His family contacted him and told him about the situation. The Tribunal asked when this was and he responded in 2014, around September. The Tribunal asked who told him and he responded his sister, [Sister A].
uu.The Tribunal asked the first named applicant if there was any other harm he feared in Colombia and he responded the economic situation there. He has made his whole life in Australia.
Post-Hearing Submissions
Following the hearing the first named applicant submitted the following further materials:
- Some social media messages in Spanish, entitled by the first named applicant as evidence of [social media] defamation.
- Some English translations of some of the social media posts submitted by the first named applicant. They are difficult to understand without context but they seem to include requests by a brother of a visa applicant who was a client of the first named applicant’s company, for help regarding delays with his visa, and asking where the first named applicant is. One message also states that the first named applicant “is a crook”.
- Photographs related to the first named applicant’s business.
- Written agreements between education facilities and the first named applicant’s company.
- A copy of an Intensive Corrections Order issued against the first named applicant by the [named] Local Court [in] April 2019. The order lists his offences as ‘Dishonestly obtain financial advantage etc by deception’ and ‘Cause delivery, document with false statement Migration Act’. He received an 18 month sentence expiring in October 2020, to be served by way of intensive correction in the community.
- A Court Attendance Notice to the first named applicant which provides the following details about his offences:
[Details deleted].
[The document lists eleven more similar charges against other named victims]
- A written complaint to various Australian government organisations and officials regarding the case against the first named applicant. The author writes in support of the first named applicant and his complaint is about the proceedings against the first named applicant.
- A response to the complainant (mentioned above) by an officer of the NSW Justice Department.
- [Named university] enrolment information in the first named applicant’s name.
- [Phone] Bills for in the first named applicant’s name listing the calls dialled from the first named applicant’s [phone] account, highlighting most of the international numbers under the bill heading “International Talk”, with calls lasting anywhere between 0 seconds up to 23 minutes or more. There is no explanation why the numbers are highlighted. [The Tribunal notes that according to information on [phone company]’s website their bills list calls under the ‘International Talk’ category which are made from Australia to other countries.[1]]
[1] [Deleted].
Country Information
DFAT does not currently have a Country Information report on Colombia.
The 2023 Human Rights Watch World Report entry for Colombia contains the following:
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 in later years, reaching similar levels in 2022 to those that existed immediately before the peace process.
Human rights defenders, journalists, demobilized FARC fighters, Indigenous and Afro-descendant leaders, and other activists face pervasive death threats and violence.
President Gustavo Petro took office in August and Francia Marquez, an environmental leader, became Colombia’s first Afro-Colombian vice president. The new government vowed to fight climate change, implement the 2016 peace accord, and prioritize a “total peace” policy that would seek an accord with the National Liberation Army (ELN) guerrillas and the negotiated disarmament of other armed groups, including criminal gangs.
In February, the Constitutional Court decriminalized abortion in all circumstances up to the 24th week of pregnancy.
Abuses by Armed Groups
Numerous armed groups operate in Colombia fueled by illegal economies, including drug trafficking and illegal mining. These include the ELN guerrillas, which was 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 are also known as “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, including killings, child recruitment, and rape, especially in rural areas of the Pacific region and along the Venezuelan and Ecuadorian borders. Security forces and judicial authorities have failed to effectively protect the population, ensure victims’ access to justice, and prosecute and dismantle the groups.
In May, the AGC ordered an “armed strike,” imposing movement restrictions on civilians in over 170 municipalities in 11 states. The restrictions suggested an alarming geographical expansion, compared to its 2012 armed strike, affecting 26 municipalities. The strike came in response to the extradition to the United States of its top commander, Darío Antonio Úsuga David, alias “Otoniel.” The group also killed 36 police from June through August 2022.
Fears of antipersonnel landmines, threats by armed groups, and the hazards of crossfire prevented 96,000 people from leaving their communities between January and October a situation known as “confinement.”
The Office of the High Commissioner for Human Rights (OHCHR) reported 60 “massacres,” defined as the intentional killing of three or more civilians in a single incident, in 2022, as of October.
In the southern state of Nariño, fighting among FARC dissident groups has displaced thousands, mainly Afro-descendants and Awá Indigenous people, who also suffer threats, confinement, kidnappings, and killings.
In neighboring Cauca, the ELN and FARC dissident groups have recruited over 500 mostly Indigenous children since 2021, according to local groups. Nasa Indigenous people who oppose abuses by armed groups have been threatened and killed. Fighting by armed groups, mainly in Argelia municipality, left more than 2,600 people displaced and confined.
In the border areas of Colombia’s Arauca and Venezuela’s Apure state, fighting between the ELN and a coalition of FARC dissident groups have caused a dramatic increase in violence, including a spike in killings. Over 12,000 people were displaced or confined. In Apure, ELN fighters conducted joint operations with members of the Venezuelan security forces, which were complicit in their abuses.
In Putumayo state, on the Ecuadorian border, Comandos de la Frontera and the Carolina Ramírez Front, two groups that emerged from the FARC, control the population, imposing dress codes and curfews and threatening to kill those who fail to comply.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants submitted their Colombian passports. On the basis of these documents and the first named applicant’s oral evidence the Tribunal is satisfied they are citizens of Colombia. The Tribunal assesses the applicants’ claims against Colombia as their country of nationality and receiving country.
The second named applicant’s claims have been presented by the first named applicant.
The applicants claims to fear harm in Colombia because of the first named applicant’s sister-in-law’s refusal to sell illegal drugs from her [business] for criminal/terrorist gangs; his niece’s father’s refusal to help FARC store materials for them; the general insecurity in Colombia; and the poor economic situation in Colombia.
The first named applicant additionally claims to fear harm due to threats from former student clients and/or franchise holders to whom he owes money.
Sister-in-law’s refusal to sell illegal drugs
The first named applicant’s sister-in-law[Sister-in-law A]presented her claims in her Protection visa application in a reasonably consistent and detailed manner. She was able to provide plausible context and further explanations during her department interview regarding the claimed incidents [where] she had worked. Her claims of being pressured by criminal gangs linked to terrorist groups to sell illegal drugs for them is also consistent with available country information. The Tribunal therefore accepts that [Sister-in-law A] ran a [business] in [Location 1] where in late 2014 she was pressured and threatened to sell drugs for a criminal gang.
The NSW Death Certificate for [Sister-in-law A], submitted by the first named applicant, records her death in [a] Hospital, Sydney [in] November 2018 as a result of “[deleted]”.
As put to the applicant [Sister-in-law A] made no mention in her Protection visa application or her interview of anyone else amongst her family and relatives operating her [business] with her. All references to her work were to herself in the singular. There is absolutely no indication of anyone else running the [business] with her, despite it being readily possible to include their participation in the types of statements she made, if it had so happened. The Tribunal therefore does not accept that any of [Sister-in-law A]’s relatives, including the applicants, were involved in operating her [business] in [Location 1].
The Tribunal notes that according to her Protection visa application, only [Sister-in-law A] received threats from the criminals who wanted her to distribute drugs for them. The first named applicant attempted to portray the situation as threats to the whole extended family however there is no other evidence of this and it is clearly contradicted by[Sister-in-law A]’s account. The Tribunal therefore does not accept that there were any threats to the applicants from criminals or terrorists wanting [Sister-in-law A] to distribute drugs for them.
Further, there is no evidence that either of the applicants came into any contact with any of the criminals or terrorists threatening [Sister-in-law A]. The incidents and threats occurred at a time when the first named applicant was in Australia. The second named applicant was in Colombia at the time however no evidence has been presented of her being personally threatened or harassed while there.
The incidents occurred over eight years ago and the [business] has not been operated by [Sister-in-law A] since that time. There is no apparent basis for criminal gangs or terrorists to now have any interest in the family, especially the applicants, on their return to Colombia.
On the information before it the Tribunal is not satisfied there is a real chance that criminals or terrorists who had threatened [Sister-in-law A] in the past would have any adverse interest in the applicants if they return to Colombia. The Tribunal is therefore not satisfied there is a real chance that either of the applicants will face harm in Colombia because of the former threats against [Sister-in-law A].
Niece’s Father’s refusal to help FARC
In the first named applicant’s written statement submitted in May 2022 he made no further mention of his niece’s father’s problems with FARC being a reason he personally feared harm in Colombia. In his Tribunal hearing he also did not initially pursue his claim to fear harm in Colombia because of the experience of his niece’s father there. It was only when the Tribunal asked him specifically about this near the end of the hearing that he chose to speak about it.
As put to the applicant the department delegate and a differently constituted Tribunal did not accept that the claims put forward by the second named applicant’s niece, regarding her father’s problems in Colombia, were credible.
The first named applicant did not expand upon the claims in his Protection visa application or at his hearing beyond saying that he knew the problems occurred because his sister told him about them in about September 2014.
In the Tribunal’s view, even if the first named applicant’s niece’s father was receiving threats from FARC members to store their materials at his rental premises there is no indication or reason that this presents a risk to either of the applicants. The first named applicant’s niece did not state that there was any threat to either of the applicants but confined the risk to her father, herself and her brother. Her only reference to the first named applicant was to mention him being in Sydney and being told about the situation in November 2014. There was no mention of the first named applicant or the second named applicant being also at risk in Colombia.
The risk to the applicant’s niece’s father was stated to involve his refusal to store materials for FARC. There is nothing to link either applicant to that refusal. There is also nothing to suggest that FARC know or have any concerns about either applicant.
The Tribunal considers that if the applicants return to Colombia there is no real chance that FARC members would have any adverse interest in them there.
The Tribunal is therefore not satisfied there is any real chance of harm to either applicant as a result of the claimed refusal by the first named applicant’s niece’s father to store materials for FARC.
General Insecurity
The Tribunal accepts that terrorists and criminals continue to operate in Colombia, despite the government’s efforts to combat their operations. However there is nothing about the profiles of either applicants which might cause them to attract the adverse attention of gangs in Colombia.
The insecurity in Colombia entails risks that are faced by the population generally. There is no indication before the Tribunal that either applicant would encounter harm from a person, group or gang because of any personal aspects of their profiles. The Tribunal finds that the harm arising from the general insecurity in Colombia is not for a reason set out in the s 5J(1)(a) definition of persecution. Further, the Tribunal is satisfied that the risk from terrorists and criminals in Colombia is faced by the population generally and not the applicants personally. Therefore it is taken not to be a real risk of significant harm, as per s 36(2)(B) of the Act. Accordingly the Tribunal is not satisfied that the general insecurity in Colombia gives rise to a real chance of persecution or significant harm in Colombia for either applicant.
Poor Economy
The Tribunal accepts that Colombia has a poor economy. The poor economy may create financial difficulties for the applicants but they would not experience these difficulties for a reason set out in s 5J(1)(a) of the Act. Further, the difficulties would not be a result of an intentional act on the government’s, or anyone’s, part. The Tribunal is therefore not satisfied that difficulties caused by the poor economy in Colombia give rise to a real chance of persecution or significant harm in Colombia for either applicant.
Debts to former Students and Franchise Holders
The first named applicant attributed his decision to lodge a Protection visa application to the claimed problems he was having with former clients of his international education business.
His descriptions of his problems with former international student clients and franchise holders changed markedly over the course of his visa application and review application processes.
In his May 2022 written statement the first named applicant portrayed the problems as being subjected to death threats on several occasions as a result of students suing him for reimbursement of money they had paid in student visa applications in Australia pending the department’s decision on their student visa application, due to circumstances outside of his control.
At his Tribunal hearing he started by describing the problems as death threats from international students due to defamation against him, initiated by his competitors, with the defamation causing a network of the students to ask for refunds of money they had paid for their visa applications. He blamed his lack of capacity to pay the refunds on ‘visa processes’.
The first named applicant continued to add contradictory and confusing detail to his story during the hearing. For example he subsequently stated it was the students who started defaming him on social media prompting his clients to ask for their money back. He also denied know the identity of the people making threats against him but later stated he could identify each of his former clients who had taken action against him and that the threatening calls were from the parents of the students, before also stating that the threats were anonymous. He then changed his evidence again to state he did not know who was threatening him and it could be the students or the franchise holders.
The first named applicant spoke of receiving threatening calls from people in Colombia, from May 2018 to the present, with them coming daily for the first few years and now two or three times a week. He was unable to reasonably explain how he knew the calls were coming from people in Colombia when they were received by him as ‘private numbers’. All he could reference was that the callers spoke in Spanish with a Colombian accent.
He later described accusations against him of being a cheater or swindler. Again he made no reference to any fault upon his part but portrayed himself as the victim of others. When the Tribunal tried to find out why he was accused of cheating he became quite vague and evasive simply referring to the impossibility of refunds due to visas being processed; and that he was just trying to help people.
After further questioning the first named applicant finally revealed that the police had investigated him about taking money form students. He then tried to portray the situation as a matter of education colleges not refunding moneys owed to the students in unsuccessful visa applications. Throughout these exchanges during the hearing he made no references to any culpability, or even responsibility, on his part for the students not receiving their refunds. He attributed the bad feeling that had arisen towards him and his company as the result of ‘jealousy’ by others, not anything to do with his own actions. When the Tribunal put to him that it made little sense that his clients would turn on him for not doing anything wrong he simply agreed and again blamed ‘jealousy’. He was not able to explain what he meant with this in view of his evidence that it was the students, not his competitors, who were complaining about him. Subsequently he again wholly attributed the non-repayment problem to delays by colleges refunding students’ money.
It wasn’t until there was a short adjournment in the hearing, allowing the Tribunal to locate information about the first named applicant and his company, that the applicant started to provide more coherent information about these matters, and reveal that his company was short of funds due to failed investments and this was the reason he could not reimburse moneys owed to his student clients. However he still continued to add differing variations to his story.
The located information and the court documents submitted by the first named applicant after the hearing show that he was convicted of dishonesty offences and required to pay back $100,000 to a list of student complainants. This is in direct contradiction to the applicant’s earlier evidence at hearing that he had been cleared of the accusations against him.
These are just some of the instances of inconsistent, contradictory, and implausible evidence the first named applicant gave in relation to this claim. The Tribunal found much of his evidence highly unreliable.
In view of his eventual admissions and the court documents submitted the Tribunal accepts that he and his company owed a substantial amount of money to a group of 16 student clients, that he was convicted of dishonesty offences, that he received a sentence by way of an intensive correction order, and that he has been required by the Court to repay $100,000 to the students.
The first named applicant has submitted print outs of social media posts in which he has been accused of being a ‘crook’ and international students are advised to be wary of him. The Tribunal also accepts this. However there is no indication, in the English translations provided by the first named applicant, that any of the posts are threatening.
The first named applicant’s evidence regarding the claimed threats he received from either students, their parents, or franchise holders was very poor. It was contradictory and in substantial parts implausible. His constant changes about the identity of the claimed callers and ensuing conversations with them, over the past approximately five years, rendered his evidence highly doubtful. The Tribunal does not accept that people would call the first named applicant to demand their money back and not indicate the source of the debt. The Tribunal therefore does not accept he would be unable to identify if they were former student clients or their parents, or franchise holders, if the calls had occurred as claimed.
The applicant’s lack of consistency about the nature of the calls, initially denying he understood the actual motivation for them, then describing them as more two-way conversations in which he tried to explain himself was also unsatisfactory. The Tribunal finds it highly implausible that the callers would telephone the first named applicant every day for there years then two or three times a week from then on to threaten him and demand money. The utility, effort and expense required to make such a sustained high volume of international phone calls over many years make this evidence highly questionable.
The first named applicant was unable to establish through the phone logs he submitted that he had received threatening calls from Colombia on private numbers. The logs show the numbers he has called which include numerous numbers in Colombia but provide no indication of the content or purpose of the calls. Given the first named applicant is Colombian and would continue to have connections to Colombia the appearance of calls to that country in his phone logs is not remarkable. The Tribunal invited the first named applicant to provide more detail about the relevance of the phone logs to his claims of receiving phone threats, and provided time after the hearing to allow him to do this, but he did not submit anything further that linked any of the calls on the logs to the claimed threats.
Even if there had been calls to the first named applicant by people to demand repayment of money owed to them the first named applicant was unable to provide a basis for why the callers, or people connected to them, would cause him actual harm on return to Colombia, apart from stating that obviously there would be reprisals.
The Tribunal accepts that there would be Colombians in the Australian community or back in Colombia who are angry at the first named applicant for not repaying them the money they are owed. However there is no accepted evidence that they will cause him serious or significant harm here or back in Colombia.
In view of the very poor quality of the first named applicant’s evidence regarding this claim the Tribunal does not accept that he has received threats from anyone because of the money he owes to third parties. There is no accepted evidence before the Tribunal that anyone intends to harm the first named applicant because of his debts. The Tribunal is therefore not satisfied there is a real chance of any serous or significant harm to the first named applicant because he and his company owe money to people. It follows that the Tribunal is also not satisfied there is a real chance of any serous or significant harm to the second named applicant because the first named applicant and his company owe money to people.
Conclusions
The applicants have not made any other claims to fear harm in Colombia and none arise on the information before the Tribunal.
On the basis of the reasons given above the Tribunal is not satisfied that either applicant has a well-founded fear of persecution in Colombia as defined by s.5J of the Act. The Tribunal is also not satisfied that there is a real risk either applicant will be subjected to significant harm on return to Colombia.
The Tribunal is therefore not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Melissa McAdam
MemberATTACHMENT - 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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Standing
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Natural Justice
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