2213620 (REFUGEE) - [2024] ARTA 173

2213620 (REFUGEE) [2024] ARTA 173 (30 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2213620

Tribunal:General Member A Verduci
Date:30 October 2024

Place:Melbourne
Decision:The Tribunal affirms the decisions under review.

Statement made on 30 October 2024 at 1:00pm

CATCHWORDS
REFUGEE – protection visa – Chile – political opinion – union leader – physical assault – kidnapping – employment termination – political activities in Australia – advocacy for indigenous rights – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Administrative Review Tribunal Act 2024, s 55
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
BACKGROUND

Applicant 1 is [an age]-year-old female citizen of Chile. She arrived in Australia [in] December 2015 as the holder of a [Student] visa.
Applicant 2 is Applicant’s 1’s mother. She is [an age]-year female citizen of Chile. She arrived in Australia [in] July 2016 as the holder of a Tourist (subclass 600) visa.
Applicant 3 is Applicant 1’s son. He is [an age]-year-old male citizen of Chile who was born in Australia.
Collectively, they are ‘the applicants’.
The applicants lodged a combined application for a protection visa which was refused by a delegate of the Minister for Home Affairs.
This is a review in relation to that decision.
The applicants lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 14 September 2022. On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal).
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it must be continued in the Tribunal in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before the 14 October 2024 continues to have effect for the purposes of, or in relation to, the proceeding after that date. Anything done in, or relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for purposes of the proceeding after the 14 October 2024. Anything done in, or in relation to, the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal: item 24 of Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
I am satisfied that this proceeding has continued in the Tribunal in a manner that is efficient and fair.
Evidence before the Department
The applicants lodged a combined application for protection visas on 12 December 2016. According to the information in that application form:
·Applicant 1 and Applicant 2 provided details of their residential addresses in Chile and their education and work experiences.
·Applicant 1 listed a sister and a nephew as family members not included in the application. Applicant 2 only listed Applicant 1 and Applicant 3. Applicant 3 did not list his father as a family member not included in his application.
·Applicant 1 and Applicant 2 said that they are in contact with relatives outside of Australia every day.
Supporting material given to the Department includes, but is not limited to:
·Statutory declarations made by Applicant 1;
·Written legal submissions;
·Supporting letters and third-party statements with certified translations;
·News articles and certified translations;
·Copies of Applicant 1, Applicant 2 and Applicant 3’s Chilean passports; and
·A copy of Applicant 3’s Queensland birth certificate.
The applicants attended an interview with a Departmental officer on 3 November 2021.
By way a concise summary, the applicants’ claim:
·Applicant 1 was employed by [Employer 1] in 2007 and was elected [Position 1] of the [Union 1] in 2012.
·[Employer 1] management did not negotiate with the union in good faith. Applicant 1 was subjected to significant harassment, including phone tapping, stalking, physical threats, and anonymous threatening letters and telephone calls.
·She was offered a personal bribe of approximately AUD$[amount] in 2013 which she did not accept.
·She was involved in a protest in 2014 that attracted media attention. This led to her employment being [terminated]. She challenged this decision in the courts but [Employer 1’s] termination was ultimately upheld by [Court 1]. Her employment was terminated and she was impeached as union [Position 1]. Applicant 1 began fighting against this decision in [international courts][1] and [deleted].[2]
·Applicant 1 continued to receive threats and harassment after her employment ended. In 2015, she was [grabbed] and forced into a car. They said things about [her] that they could only know if they were listening to her telephone calls.
·Applicant 2 claimed that the same people targeting Applicant 1 would wait in cars outside her own house, and that she was yelled at and threatened.
[1] [Source deleted].
[2] [Source deleted].
The delegate accepted that Applicant 1 started working for [Employer 1] in 2007 and was elected [Position 1] of the workers union in 2012. They accepted that Applicant 1 was offered, but declined, a bribe; that she was involved in a protest in [2014]; and that her employment was terminated and her termination and impeachment ultimately upheld by [Court 1].
The delegate did not accept that Applicant 1 had suffered serious harm in the past for any reason related to her work or political opinion; did not accept that she commenced legal action in the [international courts] and did not accept that she was kidnapped, threatened or had her telephone tapped. The delegate found that Applicant 1 was of no interest to[Employer 1] at the time she left Chile in 2015. The delegate made similar findings in respect of Applicant 2.
With the accepted profile of a former union leader, the delegate found that Applicant 1 did not face a real chance of serious harm or a real risk of significant harm in Chile. They found that Applicant 1, Applicant 2 and Applicant 3 did not meet the criteria for a protection visa in s 36(2) of the Migration Act 1958 (Cth) (the Act).
Evidence before the Tribunal
The applicants applied for a review of the delegate’s decision on 14 September 2022.
The applicants appeared before me on 28 October 2024. Their invitation to appear was sent under s 425 of the Act as it then was, and I am satisfied that they have been given a genuine and meaningful opportunity to present their case, make submissions and adduce evidence for the purposes of s 55 of the ART Act. I believe this is consistent with the efficient and fair continuation of this proceeding.
Applicant 2 and Applicant 3 elected to sit outside the hearing room for the duration of the hearing. Applicant 3 is a minor who I would not have taken evidence from. I did not take evidence from Applicant 3 in accordance her preference.
The hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
Additional material given to me during the proceeding includes, but is not limited to:
·A copy of the delegate’s decision record;
·Written legal submissions;
·Applicant 1’s statutory declaration dated 20 October 2024;
·Letters of support from third parties and news articles with certified translations.
In addition to the claims already summarised above, Applicant 1 has raised new claims to fear harm in Chile because of conduct she has engaged in Australia. This includes organising, and participating in, various protests against the Chilean government and having an active involvement with [Community Organisation 1].
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Identity and receiving country
I am satisfied that the identify of Applicant 1, Applicant 2 and Applicant 3 is as they have claimed. I am also satisfied that they are citizens of Chile and that Chile is their receiving country for the purposes of the Act. This is supported by the documentary evidence which is before me, including the copies of their passports and Applicant 3’s birth certificate. I have no reason to doubt the genuineness of these documents.
Vulnerability of Applicant 1 and Applicant 2
Applicant 1 claims to be a vulnerable applicant within the meaning of the AAT’s Guidelines on Vulnerable Persons (the AAT’s Guidelines).[3] There is insufficient evidence to satisfy me that she is. According to those Guidelines, a vulnerable person is a person whose ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed. Some factors that may be relevant to a determination of this include, but are not limited to, experiences of physical or psychological abuse and trauma. However, the mere fact that Applicant 1 is raising claims relating to traumatic incidents of physical violence and kidnapping is, in the circumstances of this case, an insufficient basis to satisfy me that she is a vulnerable person. There is no medical evidence to support this claim. Applicant 1’s age, without anything more, does not satisfy me about this. Reflecting on my own observations during the hearing, there is nothing to support a finding that her ability to participate and/or present her case was impaired or not developed in anyway. I am comfortably satisfied that it was not.
[3] Pre-AAT Hearing Submissions, 21 October 2024, Section 2.
Applicant 2 is [age] years of age. By itself, her age does not automatically make her a vulnerable person within the meaning of the AAT’s Guidelines. She elected not to give evidence to me during the hearing, and there is no medical evidence to suggest any other influencing factors. There is therefore no basis to support a conclusion that she is a vulnerable person within the meaning of the AAT’s Guidelines.
[Employer 1] employee and [Position 1] of the Union
I accept that Applicant 1 was employed by[Employer 1] in 2007. She became [Position 1] of the Union after winning a popular vote in 2012. She continued in these roles until sometime between 2014 and 2015, at which time her employment was [terminated].
I accepted that the termination of Applicant 1’s employment was upheld by [Court 1], resulting in her impeachment as [Position 1] of the union.
These claims are well document and supported by objective and credible evidence. This stands in stark contrast to all other aspects of the applicants’ claims.
I do not accept the remainder of the applicants’ claims.
Migration history, including delay, student visas and separate travel
I have strong concerns about Applicant 1 and Applicant 2’s delay in leaving Chile.
Applicant 1 claims to have received threats during her time as union [Position 1]. She describes a constant history of threatening telephone calls and letters between 2012 and 2015, as well as claiming to have been physically assaulted at a protest rally in March 2014. The degree of threatening behaviour she was experiencing caused her to cancel marrying [name], her then partner (and the father of Applicant 3).
Despite having a passport that was issued to her in [month] 2014, Applicant 1 did not leave Chile until December 2015. This is more than [number] month after her Student visa was granted, suggesting there was no urgency for Applicant 1 to leave.
Similarly, although claiming to be living alone and hiding because of the constant threats of harm she was experiencing, Applicant 2 did not depart Chile until July 2016. There is no plausible or probable explanation why she waited until July 2016 before deciding to depart Chile by herself.
The evidence regarding their separate departure dates is improbable and is also not accepted. I do not accept that Applicant 1 simply lost contact with her mother in Chile and decided to travel to Australia without any idea where Applicant 2 was or the difficulties that each of them claimed to be experiencing. It is improbable that Applicant 2 travelled to Australia about six months’ after Applicant 1’s arrival by coincidence and without any idea where Applicant 1 was already living. I also find it improbable, and I do not accept, that Applicant 2 only learn about Applicant 1’s child (Applicant 3) because somebody else told her.
I am concerned about Applicant 1’s decision to travel to Australia on a Student visa. According to her oral evidence, she approached a migration agency and told them she wanted a student visa so she could travel to Australia. She decided against a Tourist visa because that would only be valid for 3 months, whereas a Student visa would be valid for three years. Her knowledge and awareness of different types of visas for entering Australia, and the length of time that each might be valid for, demonstrates a degree of understanding about Australia’s visa program and the options available to her. In that context, Applicant 1’s evidence to not know about protection visas in Australia until later in 2016 is improbable.
I am also concerned about Applicant 1’s delay in applying for a protection visa once in Australia. I do not accept that Applicant 1 was unaware of visa options in Australia for the reasons expressed above. Whilst I accept that Applicant 1 travelled to Australia whilst pregnant, there is insufficient evidence to satisfy me that she was experiencing a medical condition that prevented her from applying for a protection visa until July 2016. There is insufficient evidence to satisfy me that Applicant 1 was the victim of a crime whereby money was stolen from her at or around the time she was leaving Chile in 2015, and that this somehow contributed to her delay in applying for a protection visa.
I accept that a migration agency named Tu Futuro en Australia is accused of fraudulent conduct because there is independent reporting which corroborates this,[4] however the available evidence does not satisfy me that Applicant 1 was a victim of this alleged fraud or was impacted in any way. There is no objective evidence before me demonstrating that Applicant 1, or any other applicant, was a client of Tu Futuro en Australia. If she was, it is reasonable to expect that some form of correspondence or documentary evidence demonstrating a client/agent relationship between them would have been provided. Even if Applicant 1 was the victim of a fraud and had money go missing in the circumstances she has claimed, it would not satisfy me that it was a reasonable or probable explanation for the delay in applying for a protection visa.
[4] ‘Foreign students allegedly lose up to $1 million to Brisbane-based education agency Tu Futuro after it disappears’, ABN News online (>
I also do not accept that language barriers contributed to the delay, and I place some weight upon the applicant having applied for, and been granted, a student visa in the past. Nor do I accept that her pregnancy, being in shock or being in hiding in Australia are credible factors that explain this delay.
These claims are not probable and are not supported by any evidence beyond what the applicants have said. I do not find their evidence to be credible or reliable about these matters and it is not accepted.
Bribes, threats and assaults
I am concerned about the lack of any objective evidence corroborating important integers of the applicants’ claims.
Applicant 1 claims to have received threatening letters throughout her entire period as a union leader. She has said that the first threats were anonymous, all by postal mail and they came so frequently that she did not even both opening them, but they grew day by day. It is reasonable to expect that she could produce at least one of the many threatening letters she received, but she cannot. I note that the written statement of [Ms A],[5] for example, refers to Applicant 1 showing the author emails and threatening messages on more than one occasion, evidence which strengthens my concern that such evidence cannot be provided now.
[5] Written statement of [Ms A] dated 2017.
Applicant 1 claims to have been offered a personal bribe of approximately AUD$[amount] by [Employer 1] management as a part of settling an industrial dispute. Applicant 1 did not report this to the police, saying it was not unlawful and was just a part of how negotiations worked in Chile. If Applicant 1 was involved in negotiations with [Employer 1] management that involved threatening and harassing behaviour towards, it is improbable that she would not report being offered a bribe to the police.
Applicant 1 claims to have reported other matters to the police, such as when she was assaulted whilst involved in a rally in 2014. She claims that a person who was armed and carrying police identification assaulted her and ran away before he was caught by her colleagues and handed over to the police. Despite what appears to be a fairly serious incident involving an assault by an armed person, an incident that involved a ‘hitman’ according one of her third-party statements,[6] Applicant 1 did not follow up with the police about this incident for a couple of months because she was too busy and forgot. I do not consider this a credible response.
[6] Written statement of [Mr B], undated.
Applicant 1 says that she was abducted from a [carpark] in 2015. She was [driven] around and threatened before being released. It seems improbable that Applicant 1 would be abducted, driven around and threatened but then taken back to same general area that she was abducted from and released.
I am concerned that this event, which caused her significant fear and ultimately led to her departing Chile in fear of her life, was never reported to the police. Her explanation is that she didn’t bother because she knew who the police reported it. I do not find her evidence about this to be credible or probable.
There are also contradictions with Applicant 1’s narrative of events that are difficult to reconcile. On the one hand, she was employed by [Employer 1] from 2007 to 2015. From 2012 to 2015, she was [Position 1] of the union. According to her evidence, the law only allowed her to have one non-workday per week for union duties. However, [Employer 1’s] policy allowed her to work offsite full-time focusing exclusively on union duties. She was not required to attend her place of employment despite continuing to be paid as an employee. When [Employer 1] wanted to terminate her employment, it did so under workplace laws. Applicant 1 pursued [Employer 1’s] termination decision through Chile’s legal system and was successful at first instance. [Employer 1] appealed and its decision to terminate Applicant 1 was ultimately upheld. This suggests an organisation that respects unionisation and the rule of law.

On the other hand, Applicant 1 also claims to have been the victim of workplace threats and intimidation orchestrated by [Employer 1] management because she was making their life difficult. She was such a problem that she claims hitmen and assassins were out to get her and she was abducted [and threatened] to stop her behaviour. Applicant 2 had cars parked outside of her home and she was threatened and harassed because of Applicant 1’s conduct. It does not seem probable that [Employer 1] would continue to employ Applicant 1, pay her a salary and not require her to actually attend her workplace at the same time assassins or hitmen were being hired to harm her.
The conduct that Applicant 1 and Applicant 2 claim to have experienced is also inconsistent with independent and credible country information. According to one source, the Chilean constitution prohibits arbitrary or unlawful interference with privacy, family, home or correspondence, and there were no reports that the Government failed to respect these prohibitions.[7] The constitution also provides for freedom of expression, including for members of the press and other media, and the government generally respected this right as well. The constitution also provides for an independent judiciary, and the courts are described as being generally free from political interference, with the right to legal counsel constitutionally guaranteed and due process generally prevailing in civil and criminal matters. Indigent defendants do not always receive effective legal representation, and criticism has been directed at the government for its use of antiterrorism laws to prosecute acts of violence by Mapuche activists.[8]
[7] 2023 Country Report on Human Rights Practices: Chile; US Department of State, Section 1 Part H.
[8] Freedom in the World 2023 – Chile; Freedom House, Part F.
Effective judiciary and functioning democratic political system combined to promote freedom of expression.[9] In relation to freedom of association and the right to collective bargaining in particular:
“The law provided for the rights of workers, with some limitations, to form and join independent unions of their choice, bargain collectively, and conduct strikes. The law also prohibited antiunion practices and required either back pay or reinstatement for workers fired for union activity”
and
“Employers could not dismiss or replace employees for being involved in a strike.”[10]
[9] 2023 Country Report on Human Rights Practices: Chile; US Department of State, Section 2 Part A.
[10] 2023 Country Report on Human Rights Practices: Chile; US Department of State, Section 7 Part A.
Critically, the Chilean government is said to effectively enforce these laws, with penalties described as being commensurate with those for other laws involving denials of civil rights, such as discrimination. Penalties were regularly applied against violators whenever inspectors from the Labor Directorate corroborated violations, which varied according to the severity of the case. Companies were generally subject to sanctions for labor violations, which varied to the severity of the case. Companies could receive ‘special sanctions’ for infractions, which included antiunion practices.[11]
[11] 2023 Country Report on Human Rights Practices: Chile; US Department of State, Section 7 Part A.
A Labor Directorate also exists and is responsible for enforcing minimum wage, overtime and OSH laws, with these laws also being effectively enforced.[12]
[12] 2023 Country Report on Human Rights Practices: Chile; US Department of State, Section 7 Part E.
The same country information identifies some limitations on industrial action, such as strike action being limited or prevented in certain critical sectors like health, economy or national security.[13]
[13] 2023 Country Report on Human Rights Practices: Chile; US Department of State, Section 7 Part A.
Another credible source describes Chile as being a stable democracy that has experienced a significant expansion of political rights and civil liberties since the return of civil rule in 1990. It describes some ongoing concerns including corruption and unrest linked to land disputes with Indigenous Mapuche people, however that appears an issue unrelated to the applicants’ claims.[14] It describes Chileans as enjoying open and free discussions in relation to their personal views on political or other sensitive topics without fear of surveillance or retribution.[15] The right to assemble peacefully has traditionally been respected, although protests erupted in 2019 and 2022 which included violence from protestors and police. Civilian violence and police repression is said to have decreased significantly since 2019.[16]
[14] Freedom in the World 2023 – Chile; Freedom House, Overview.
[15] Freedom in the World 2023 – Chile; Freedom House, Part D.
[16] Freedom in the World 2023 – Chile; Freedom House, Part E.
The presence of strong labor laws protecting worker and union rights is also reported, although some limited antiunion practices by private sector employers continue to be reported.[17]
[17] Freedom in the World 2023 – Chile; Freedom House, Part E.
In considering these claims specifically, and the applicants’ evidence more generally, I have also reflected on the supporting evidence that has been provided. This includes the third-party letters of support that attest to Applicant 1’s involvement in the union, some knowledge of the ill-treatment she is said to have received, and examples of similar ill-treatment said to have been experienced by the writers. It also includes news reports about other people involved in union and/or anti-government behaviour. I have given this material some weight. However, the material given in support of the applicants’ claim does not overcome the strength of my concerns about the applicants’ own evidence, the lack of objective evidence about matters I would reasonably expect to be available and provided, and the strength of the country information that I have cited above.
The strength of my concerns and the weight of the country information above leads me to conclude that Applicant 1 and Applicant 2 did not experience threats, harassment, physical or mental ill treatment, kidnapping or any other form of serious or significant harm in Chile.
Proceedings in the [International Courts]
In Applicant 1’s first statutory declaration,[18] under the hearing Further Legal Proceedings, she describes how she began ‘…to fight the case by way of two international resources, one against Chile in the [specified international courts]…In these two courts, I had a right to bring an application against the decision of [Court 1].’ She goes on to say that her ‘…decision to question the ownership of the Company raised important issues and which resulted in the hardest persecution towards me.’ In the next paragraph she says ‘This caused a great commotion with the authorities because although this issue was well known in Chile, that a Union leader raised it was unusual. This suggested to the Government that other leaders of other companies that were part of this corrupt process of privatization might agree with me.’
[18] Applicant 1’s Statutory Declaration dated September 2017, paragraph [37] – [39].
The evidence in the applicants’ later submission is more equivocal, describing how Applicant 1 ‘began the process of preparing cases with the intention of lodging one against Chile…’ and was ‘…gathering the resources to mount the formal complaints.’[19]
[19] Pre-AAT Hearing Submission dated 21 October 2024, paragraph [1(n)].
Her oral evidence to me is that no proceedings were ever commenced.
As no legal action was commenced, and Applicant 1 did not move beyond preparing resources in order to so, it remains unexplained how her proposed actions raised a great commotion with authorities and resulted in the hardest persecution towards her.
The lack of any documentation supporting a claim to be preparing legal action also suggests to me that no action was contemplated, let alone commenced. If Applicant 1 was involved in gathering resources to mount a legal complaint that would ‘dramatically alter the economic political and social model of [her] country’,[20] it is reasonable to expect that there would some independently verifiable and corroborative evidence in support of this. There is not.
[20] Applicant 1’s Statutory Declaration dated September 2017, paragraph [39].
I do not accept that Applicant 1 was involved in the preparation of legal cases in the [International courts].
Conduct in Australia
Applicant 1 claims to have engaged in protests and social mobilisation whilst in Australia. She claims to have started by attending a protest at the end of 2018 and to have joined [Community Organisation 1] at some stage after that. She claims to be an organiser for activities that are critical of the State apparatus and to be an activities contributing towards a genuine deep transformation that advances towards social justice for the indigenous and non-indigenous people of Chile. Her statutory declaration[21] raises, for the first time, a commitment to the cause of the Mapuche people. Her involvement in [Community Organisation 1] is supported in a letter from [Person A] dated 21 October 2024, and I have placed some weight upon this.
[21] Applicant 1’s Statutory Declaration dated 20 October 2024, paragraph [28] – [35].
The available evidence does not support Applicant 1’s claimed level of involvement. It is reasonable to expect a letter of support on [Community Organisation 1] letterhead or similar, attesting to her claimed involvement. It is reasonable to expect photography evidence of her involvement at a protest, an event or a meeting of any description. It is reasonable to expect some form of correspondence or communication between Applicant 1 and other [Community Organisation 1] members, or between Applicant 1 and other bodies or institutions in relation to the matters she claims to be involved with. It is reasonable to expect a video recording of activism, or statement or other form of published material that identifies Applicant 1 as an activist and contributor to her claimed causes. Beyond Applicant 1’s evidence and a single letter of support, there is nothing to corroborate her claims. In these circumstances, and taken together with the strength of my concerns about Applicant 1’s evidence expressed above, I do not accept that she engaged in the conduct that she claims to have, or that she has the level of involvement or the profile of an activities that she claims to have. I do not accept that Applicant 1 is, or has been, an advocate for indigenous rights.
The chance or risk of harm to the applicants
I accept that Applicant 1 was employed by[Employer 1] and held the role of a union [Position 1] between 2012 and 2015. I accept that she has a profile within Chile that is consistent with this.
I do not accept that Applicant 1 and Applicant 2 were targeted for harm, threatened, kidnapped, assaulted, had their telephone calls intercepted or were otherwise of any adverse interest to [Employer 1] management, the government and/or anyone else in Chile. I do not accept that Applicant 1 will be a person of interest to [Employer 1] or anyone else because of her past employment and union leadership role. She will also not return to these roles, noting that [Employer 1] is in the processing of [ceasing operations].[22] It is speculative to suggest that Applicant 1 will return to another similar union leadership role in the reasonably foreseeable future; but even if she did, I find that the evidence does not support a finding that she would be of interest or targeted for harm because of any future role she may have. Nor do I accept that Applicant 1 is on a blacklist because of her former role and actions as union leader, and I do not accept that she would be denied employment opportunities for this reason either.
[22] [Source deleted.]
I have reflected on the country information given to me by the applicants.[23] I accept that there have been historical difficulties for parts of the Chilean population. As I have already referred to above, I accept that protests occurred in 2019 and 2020 that involved violence on both sides. However, the weight of more recent country information that post-dates those events does not support a finding that Applicant 1 will be a person of adverse interest now or in the reasonably foreseeable future.
[23] See, for example, Pre-AAT Hearing Submissions dated 21 October 2024, Section 4.
I do not accept that Applicant 1 has engaged in conduct in Australia that makes her a person of interest to [Employer 1], the Chilean government, the police or anyone else.
I have considered the accepted facts of Applicant 1 both individually and cumulatively. She is a person who worked for [Employer 1] and was Union [Position 1] for a period of time. She engaged in union activity and protests, including a protest [at a location] that attracted media coverage and political attention, but did not receive adverse attention because of it. She has some association with [Community Organisation 1], although not to the level she has claimed. She will return to Chile as a person who has lived in Australia since 2015 with her mother and child. She will return as a person who applied for a protection visa.
The strength of my concerns regarding the evidence that is before me, and the weight of the country information considered above, does not support a finding that a person with Applicant 1’s accepted profile will be of interest to the Chilean government, [Employer 1] or anybody associated with it, the police or anyone else now or in the reasonably foreseeable future.
Applicant 2 and Applicant 3 have not raised claim that are separate to, or independent from, Applicant 1’s claimed experiences. I am satisfied that no such claims arise.
I find that Applicant 1, Applicant 2 and Applicant 3 do not face a real chance of serious harm, or a real risk of significant harm, in Chile now or in the reasonably foreseeable future.
Conclusion
I am 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) of the Act for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions under review.
Applicant’s representative:   Ms EMMA MULROONEY
Date(s) of hearing:  28 October 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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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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