N98/24375 [2001] RRTA 230 (8 March 2001)

The Applicant stated that he had obtained a qualification. The Applicant stated that he became interested in the policies and activities of a particular political movement [details of the group name have been deleted]. At the time the movement had ceased its former guerrilla activities and had in principle been accepted as a political party. In practice, however, members of the party were persecuted and killed by both the major political parties and associated paramilitaries. The Applicant stated that after several years he began to carry out administrative functions on a voluntary basis and was for a short time an office-bearer of the organisation. After this he provided assistance to senior people in the party.

The Applicant stated that as a result he began to receive anonymous threatening telephone calls telling him to leave town and then written death threats. He suspected that these came from paramilitary groups. The Applicant stated that on one occasion while travelling in his car, the brakes failed. As the car was regularly serviced, he suspected sabotage because the brake line was cut. The Applicant stated that after this he stopped attending for a while but continued to receive the threatening phone calls and notes. He resumed his activities after a while and the phone calls started again. On another occasion, while with friends in a car, they were overtaken by another car and two men in the car opened fire. They managed to pull up on a level piece of ground and the other car continued on. The Applicant stated that he was very frightened by this direct attempt on his life and hid in his house until he had made the necessary arrangements to obtain a visa for Australia.

The Applicant stated that now there had been an attempt on his life, he believed because of his political activities, he feared he would be killed. The Applicant stated that the authorities had told him they could not offer any protection because there are too many cases of attempted murder for them to investigate, especially when the suspects are not identified. The Applicant stated that he does not trust the authorities because many of the paramilitaries are off-duty policemen.

The Applicant stated that he had rung his wife since arriving in Australia and she was still getting phone calls from unknown people saying they will kill him. She was afraid that something might happen to her.

Some material was submitted to the Department and a further statement was foreshadowed.

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There was submitted a copy and a translation of a document which incorporated a statement by the Applicant said to have been sworn at the prosecutor-general's office. In this statement the Applicant, referring to himself as a demobilised militant , described an incident in which he and friends were fired at from a moving vehicle and ran and took shelter behind a parked car. The Applicant stated that he had already been threatened with death for having been an active member of (the militant group) and that telephone death threats had continued.

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There was submitted what appeared to be a page from a newspaper dated, with a photograph of the Applicant. The translation of the article reported the incident in similar terms to the Applicant's statement to the prosecutor-general's office and referred to the Applicant having made a report to the prosecutor-general's office.

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There was also submitted the original and a translation of a letter on militant group's letterhead, signed by a senior office-bearer, stating that "our leader and director reinstated into civilian life", the Applicant, is a registered member of the group. It was stated that the Applicant has received death threats and that the administrative leadership of the group has therefore recommended that he leave the country to preserve his life.

The Applicant submitted a further statement and accompanying material to the Department.

The Applicant stated that although he began to become interested in the ideas of the militant group at a particular time, only several years later did he decide to become active in the party. He joined and became an office-bearer of the group, but did not remain for long in that position which entailed a lot of responsibility and required more time than he could manage, so he resigned after a few months. However, he was later named in another position of responsibility requiring more time than he could devote to it, and he once again had to resign (but still attended meetings at weekends to assist). It was after this that he first started receiving telephone threats (at home and at work), warning him to leave the group and to leave the city. The Applicant stated that he did not take any notice and did not inform the authorities since he regarded it as natural because other party colleagues had received similar threats which had never been carried out. However, he stayed away from the party directorate for a period and changed his residence and telephone. The threats largely ceased but once in a while they would still call his office.

The Applicant stated that the first attempt against him was made on a specified date. He had a vehicle in which the brakes failed, but because of its relative newness and good maintenance he did not believe that this could have been accidental. It appeared that a nick had been made in one of the brake lines. Some days later a telephone caller told the Applicant that next time they would not fail. The Applicant stated that after this he once again retired from the group's activities and stopped going to meetings for more than a year and at that time he also changed his employment, so that the telephone threats "all but completely stopped".

The Applicant stated that after an interval he decided to return to active involvement in the party. However, the threats started again with calls to the place where he now worked. They told him that as he had not taken notice of them he would have to suffer the consequences.

The Applicant stated that on one occasion he and others travelled by car to visit a party colleague, taking an alternative route (rather than the main road) for security purposes. On arrival they had parked their car when several shots were fired at them from a moving vehicle and they escaped only by hiding behind a parked car on the street. There were a lot of people in the street and one of his companions, who had a gun, fired a shot in the air. It was after this that he was advised to leave the country to save his life. He then set about getting passports and applying for visas for himself and his family. He obtained leave from his job and left on a particular date, hoping that his family could follow him afterwards.

There was also submitted a photocopy and translation of a document on the letterhead "office of the public defender", setting out a complaint lodged by the Applicant on that date. The Applicant stated therein that several years ago he had belonged to a particular political movement, and that on repeated occasions he had received various threats and had been the victim of an attempt on his life. The Applicant stated that he believed that these threats had come from rightist movements.

There was submitted the original, a photocopy and translation of what appears to be an undated (party) membership card bearing the Applicant's name and photograph.

There was submitted a letter from the general manager of a company stating that the Applicant had been employed there for several years and that he had resigned due to an attempt on his life connected with political problems, because he had previously belonged to the militant movement.

There were also copies and translations of the Applicant's birth certificate, marriage certificate and educational certificates.

The Applicant's wife subsequently arrived in Australia and was included in the application as a member of the family unit.

The delegate's decision record dealt at some length with the newspaper article submitted by the Applicant, concluding on the basis of its wording and contents, font, and accompanying photograph that it was a concocted article to enhance the Applicant's claim. The delegate also noted that the article referred to the Applicant's report of the incident to the prosecutor's office, notwithstanding that the report (according to the documents submitted by the Applicant) was dated after the article.

The delegate also placed weight on the repeated references in the documents to the militant group although the name was later changed. The delegate also found that there have been no credible reports that members of this group are systematically targeted by any political or armed force in Colombia and therefore did not accept that the Applicant faced a real chance of persecution as a member of the group.

The Applicant children subsequently arrived in Australia and the Applicant requested that they be included in his application to the Department. However, the Department advised the Applicant that this could not be done as the decision about his application had already been made. Separate applications were therefore lodged in the names of the Applicant children shortly afterwards; these were refused and they then lodged review applications.

In their applications, the children stated that they feared they would suffer because of their father's problems as he was being persecuted for being a member of the militant group. In their review applications, they stated that they had remained with a relative in Colombia when their parents came to Australia but that their parents were afraid that they might be kidnapped in an attempt to force them to return to Colombia. They asked that their review applications be considered with that of their father.

In comments provided to the Tribunal with his review application, the Applicant father stated that the documents he had submitted were genuine. He had brought his family to join him in Australia which he would not have done had his fear not been genuine. He had been very concerned as his wife had received several calls asking for him although he had moved her and the children to another house before he left Colombia. This, he said, proved that the people who are after him have not given up.

The Applicant gave evidence about these matters at a hearing before the Tribunal as originally constituted. The Applicant also provided at the hearing the following:

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The original and a translation of what purports to be a membership card for the militant group in the name of the Applicant , bearing the same photograph as on the membership card previously submitted.

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The original and a translation of a letter on the group's heading, stating that the Applicant "was connected to the Movement".

The Tribunal then considering the review applications of the Applicants was deconstituted due to the Member's unavailability and the review applications were referred to the Tribunal as presently constituted.

The Applicant's wife was granted a bridging visa to enable her to visit a sick family member. On her return the Applicant wife then made a further application for a bridging visa this time including her children, but this was refused by the Department.

The Tribunal (as presently constituted) explored all of these matters in detail with the Applicant at a further hearing. The Applicant's wife and children also had the opportunity to give evidence.

The Applicant provided at hearing a detailed account of his circumstances which accorded closely with his previous evidence. The Applicant explained that on the same afternoon as the incident of the shooting he and his friends had lodged a complaint with the police. This is where a newspaper reporter had come to try to get details of the story from them and from the police, although the Applicant had been unwilling to give them information. The Tribunal questioned the Applicant about the history and political circumstances of the party. The Tribunal also questioned the Applicant closely about some particular matters which appeared to give rise to difficulties. The difficulties, evidence and conclusions reached are discussed in the following section of this decision.

The Applicant's wife stated at hearing that in a particular period on several occasions she answered telephone calls threatening her husband. She stated that she feared for their safety on return to Colombia because of her husband's involvement in left-wing politics (with which she did not agree). The danger had led her when in Colombia to keep her children indoors.

The Applicant's oldest child did not feel safe and had not been able to go outside or play with friends, although at the time had not understood why.

All of the evidence and submissions were taken into consideration by the Tribunal in reaching this decision.

The Tribunal does not attach importance to minor inconsistencies of detail arising from the Applicant's original submission. The Tribunal has not drawn any adverse inference from the use of documents in one group name rather than the latter since it appears from the material it has seen that the original name has continued in use together with the latter. The Tribunal has, however, explored with the Applicant in detail at hearing more serious difficulties with the Applicant's evidence. These were primarily difficulties with the documentation submitted to the Department and the Tribunal.

The Applicant explained at hearing that group membership cards were generally issued on an annual basis. Although they contained a printed frame for a photograph to be included, these were usually not attached. The Applicant stated that he added his photograph to the first membership card when he was preparing to come to Australia. The second card had been sent to the Applicant after he arrived in Australia and he had added the photograph himself here. (Both cards bear the same photograph of the Applicant).

The Applicant stated that he had obtained the letter from the group because he knew that in Australia one had to have proof of what had happened. In response to questioning about reference to himself as a "leader and director reinstated into civilian life", the Applicant acknowledged that this letter was prepared by a person who did not necessarily have any direct personal knowledge of the Applicant and his circumstances although he knew about the party.

A major difficulty explored by the Tribunal with the Applicant was that raised by the delegate concerning the purported newspaper article. The Tribunal discussed with the Applicant the various difficulties it presented, particularly in relation to its appearance of having been added to a genuine newspaper page and the fact that it referred to (and appeared to have drawn upon) the Applicant's statement to the prosecutor-general when this statement was not in fact presented until several days after the date of the article.

The physical evidence of the newspaper article was strongly suggestive but not conclusive. With regard to the content, the Applicant suggested that newspaper reporters are imaginative and stated that he did not know why the reporter would say that a statement had been made to the prosecutor, rather than to the police. The Applicant also accounted for the photograph in the article (a poor copy of the same photograph that he had added to the membership cards) by stating that he had handed his card to the police at the police station and that the reporter must have photographed it there. When the Tribunal pointed out that the Applicant had earlier told it that the card did not usually have the photograph on it, the Applicant stated that he had the photograph loose with him and it was usual to present the card with the photograph attached when this was necessary and that this is what he did. The Tribunal found these explanations to be unsatisfactory and was not satisfied that the newspaper article was a genuine report which can be given weight as independent confirmation of the incident.

There was also a difficulty with the Applicant's original account of the shooting incident in his application, where it was stated that the driver of the car he was in pulled over and parked after they were shot at, while his later accounts consistently referred to the shooting as having occurred after they had parked the car and started walking. Another difficulty, over whether the Applicant was accompanied in the car by one or several friends (at hearing he stated one, but all of his earlier statements refer directly or by inference to "several"), was not resolved but was not of itself of particular significance.

Notwithstanding these difficulties, and having regard to the general consistency and plausibility of the Applicant's detailed account of the shooting incident and his evidence at hearing, the Tribunal was satisfied that the Applicant did receive threats which culminated in a shooting incident. Although it appears that there may have been some embellishment, in this particular case that is not sufficient to reject the Applicant's direct evidence as to its occurrence. Similarly, although the Tribunal was satisfied that some of the documentation has been contrived in order to provide documentary evidence of the Applicant's claims, that does not of itself demonstrate that those claims are untrue. Further, there was documentation that was not controverted which tended to support the Applicant's account (for example, the original statement to the prosecutor).

The Tribunal also satisfied itself at hearing that the Applicant had a knowledge of the group consistent with his stated involvement.

Notwithstanding the difficulties presented by contrived documentation, the Tribunal accepts that the Applicant had a significant if not leading involvement with the group, and that in consequence he received death threats and that he was the target (or one of the targets) of a shooting attack by unknown persons as claimed.

The Tribunal here observes the great dangers courted by an Applicant seeking to enhance a genuine case with embellished claims or contrived documentation. When detected, this may give greater weight to other less serious difficulties which might otherwise be given little weight notwithstanding inconclusive explanations. In this instance, the Applicant has been believed despite some material which was not accepted and which in other circumstances might have led to his central claims being rejected.

The Tribunal notes that there is adequate evidence to support the Applicant's claims that party activists have been targeted and killed in Colombia.

The party was a left-wing urban guerilla group in Colombia. It is officially recognised and there is evidence that activists have since been targeted.

A Canadian Immigration and Refugee Board report quoted Amnesty International reports which refer to killings and abduction of party members since its formation.

A 1997 news report stated that "according to sources within the government's Re-Integration Program the death toll for ex-guerillas (that year) included, among other groups, a number of members of the applicant's party (Ferrer, Y., "Colombia-Politics: New violence mars election campaign", Inter Press Service, 22 August 1997).

A 1998 UNHCR report commented on the high degree of "intolerance towards opposition parties and movements" in Colombia. It reported that members of the applicant's party and other opposition groups, composed of former guerilla fighters who have returned to civilian life, stated that they had been threatened and attacked by guerillas. The report also commented on the "'paramilitary' phenomenon" which "developed more strongly after 1980, when these groups stepped up the selective physical extermination of political opposition leaders, trade-union and social leaders, and State officials accused of collaborating with the guerillas" (United Nations High Commissioner for Human Rights, Report on Colombia, 9 March 1998).

[Country Information relating directly to the applicant's group has been deleted]

In a letter to the Tribunal, a leading academic (name deleted) stated:

"In recent times a number of former guerilla groups have been re-integrated into the political process. Many officials of one small party of this type (the applicant's) have been killed consistently and regularly over the last decade. It is not clear that the persons responsible for these murders were associated formally with any of the major parties. Private vigilante groups and paramilitary groups are most likely to have been involved. There is some evidence that police and military personnel acting out of hours and possibly in a private capacity have been involved."

The United States Department of State, Country Reports on Human Rights Practices for 1999 indicates that paramilitary violence has continued into 1999 and that the government is unwilling or unable to provide protection for those perceived by paramilitaries to be guerillas or guerilla collaborators.

It is therefore entirely plausible that a person in the Applicant's circumstances should have experienced threats or even attempts on his life and that this might recur on return.

The Tribunal has also considered whether the Applicant might reasonably avoid this feared harm by relocating away from his own district in Colombia (which is well-known as a particularly violent area). That may generally be an option. However, the Applicant's profile as a former office-holder can be differentiated from that of ordinary members. Also, the available information does not suggest that hostile paramilitaries are absent from any significant area of Colombia or that difficulties for former party activists are confined to the particular area. Although the Applicant will not be in the same danger in another area of Colombia, in this case the Tribunal is not satisfied that he could avoid any real chance of such harm by relocation.

The Tribunal is therefore satisfied that the Applicant has a well-founded fear of persecution for a Convention reason (his political opinion) on return to Colombia.

The Tribunal is satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant satisfies the criterion set out in s.36(2) of the Act for a protection visa.

No specific Convention claims were made by or on behalf of the Applicant's wife and children. The fate of their application therefore depends on the outcome of the Applicant's application. If the Applicant's visa is granted, his wife and children will be entitled to a protection visa provided they satisfy the remaining criteria for the visa.

The Tribunal remits the matter for reconsideration with the direction that the Applicants are persons to whom Australia has protection obligations under the Refugees Convention.