FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Application for review of decision that applicant had refugee status - Brazil - Police corruption - whether threatened harm was persecution or individualised violence - whether exposure of corruption amounted to expression of political opinion - motivation behind harm - Is a State a political entity?

Migration Act 1958 (Cth), s 476(1)(e)

Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300

Commissioner of Taxation v McCabe (1990) 26 FCR 431

N.S.W. Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1956) 94 CLR 509

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v Y & ORS

NG 80 of 1998

DAVIES J

SYDNEY

15 MAY 1998

THE COURT ORDERS THAT:

                        The application be dismissed with costs.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

This application by the Minister for Immigration & Multicultural Affairs seeks orders of review with respect to a decision of a Refugee Review Tribunal ("the Tribunal") in which the Tribunal remitted the matter to the primary decision-maker with the direction that Y, his wife and daughter were persons to whom Australia has protection obligations under the Refugees' Convention.  Article 1A(2) of the Refugees' Convention describes a refugee as a person who:

            "... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." (emphasis added)

The Tribunal concluded that the present respondents satisfied the definition.

The application is brought under s 476(1)(e) of the Migration Act 1958 (Cth) which provides, inter alia:

            "476(1) Subject to subsection (2), application may be made for  review  by  the  Federal  Court of  a judicially-reviewable decision on  any  one  or  more  of  the  following  grounds. 

            ... 

            (e)  that  the  decision  involved  an  error  of  law,  being  an  error  involving  an  incorrect  interpretation  of  the  applicable  law  or  an  incorrect  application  of  the  law  to  the  facts  as  found  by  the  person  who  made  the  decision,  whether  or  not  the  error  appears  on  the  record  of  the  decision;  ..."

Counsel for the Minister, Mr Robert Beech-Jones, conceded that he could not point to any express error in the Tribunal's exposition of the law to be applied, but he submitted that an inference of error could be drawn from the structure of the Tribunal's reasons and the manner in which it approached its task.  I agree that an inference of error may be drawn from the structure of the reasons for decision and from the approach taken.  Indeed, that was precisely what occurred in Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300.  In particular, it has long been accepted that an error of law or unreasonableness, arbitrariness or capriciousness can be gleaned by comparing the facts as found or not in dispute with the decision reached.  See eg Commissioner of Taxation v McCabe (1990) 26 FCR 431.  Under s 476(1)(e), the relevant inference must be an inference that the Tribunal erred in its interpretation of the applicable law or a misapplication of that law to the facts as found.  Unreasonableness, arbitrariness or capriciousness are irrelevant in themselves.

Y had given evidence to the Tribunal that he was a citizen of Brazil and that, in February 1996, he and a friend, who was an investigative reporter, witnessed an incident implicating local police in criminal activities.  He saw a policeman shoot and possibly kill one of eight boys being assaulted by the police.  Y said that he reported the matter to the authorities but, as they did not appear interested, he and his friend began their own investigations of the incident and were able to locate one of the eight boys involved.  Y informed the Tribunal that he and his friend subsequently reported to the authorities the names of two serving police officers who were involved in the assault.  He gave evidence that, shortly thereafter, he and his friend were abducted, separated from each other and tortured.  He said that his friend was run over by a motor vehicle and killed and he assumed that he had been murdered.  Y gave evidence to the Tribunal that the authorities informed him they could not investigate the matter due to insufficient evidence and that he was told by officials that he was a possible target. 

Y, his wife and daughter moved to a neighbouring city because of fear for their safety.  However, Y there received anonymous telephone calls telling him not to proceed with his claims.  He went to the authorities to ask for protection but it was not available.  His wife was abducted and raped and, subsequently, he received another telephone call and told that his young daughter would suffer worse treatment if he insisted on proceeding with the case.  Y said that, nevertheless, he did make a statement to the Department of Justice.  He and his wife and daughter, however, left Brazil as they thought that their lives were in danger.  Shortly after leaving the country, the house in which they had been living burned down.

The Tribunal accepted Y as a witness of truth.  The crux of the Tribunal's decision was in these passages:

            "In the present matter, the Tribunal has decided that the applicant suffered circumstances amounting to persecution due to his political opinion and the political opinion attributed to him by officers of the state.

            ...

            The Tribunal has decided that the applicant's stance against criminal activity of police officers led to the persecution which he suffered, and that stance was effectively the expression of a political opinion against a pervasive aspect of Brazilian state.  The Tribunal also finds that the applicant's wife was subjected to circumstances amounting to persecution for the Convention reason of `membership of a particular social group'.  The `social group' in this instance was the applicant's family.  The Tribunal is satisfied that the applicant and his wife will suffer similar circumstances in the future for the same reasons.  Furthermore, the Tribunal finds that the applicant's daughter, like her mother, is also at risk of suffering persecution in Brazil because she is a member of the applicant's family."

Mr Beech-Jones submitted, in substance, that the facts before the Tribunal merely showed that Y had encountered corruption and had sought to expose it and that he, his wife and daughter were at risk of harm simply because of what he knew and of the steps that he had taken in an attempt to have the corruption exposed.  Certainly, that is a view which could have been taken by a decision-maker of fact but it was not the view which was taken by the Tribunal.  

The Tribunal carefully explained that the words "political opinion" should not be narrowly read.  The Tribunal cited the following from the reasons given in reference No BN94/02973:

            "The term is not limited to the overt expression of a political opinion: a mere act or refusal to act may constitute the expression of political opinion.  Moreover, a political opinion may be imputed by others to an individual because of perceptions about that individual: Guo Wei Rong v Minister for Immigration and Ethnic Affairs and Anor, unreported, Federal Court, Sydney, 26 February 1996 Beaumont, Einfeld, Foster JJ per Beaumont J at pp.14-26.  The Handbook on Procedures and Criteria for Determining Refugee Status (United Nations High Commissioner for Refugees, Geneva, January 1992) at paragraphs 80-86, considers political opinion in the narrowest sense of `opinions not tolerated by the authorities, which are critical of their policies or methods'.  Guy Goodwin-Gill argues that the term political opinion should be understood in the broad sense ... to incorporate, within substantive limitations now developing generally in the field of human rights, any opinion on any matter in which the machinery of state, government and policy may be engaged': Goodwin-Gill, The Refugee in International Law, Clarendon Press, Oxford, 1983, p 31; see also The Law of Refugee Status (above) p 150.  In the context of anti-discrimination legislation in Australia and decisions made under relevant legislation, political conviction has been given wide meanings; at least one government report has suggested that the definition include beliefs or opinions concerning the nature and purpose of the State, the distribution and utilisation of State power, and the distribution and utilisation of economic, social and cultural power in a society: Peter Bailey, Human Rights, Australia in an International Context, Butterworths Pty Limited, 1990, pp 244-45."

I do not see any error in the general approach taken by the Tribunal.  In the context of the Refugees' Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder, the claimant for refugee status, held views which were contrary to the interests of the State, including the authorities of the State.  A person may be regarded as an enemy of the State by virtue of holding and propounding views which are contrary to the views of the State or its Government, or which are antithetic to the Government and the instruments which enforce the power of the State, such as the Armed Forces, Security Forces and Police Forces or which express opposition to matters such as the structure of the State or the territory occupied by it and like matters.  In his General Theory of Law and State, Harvard University Press, 1945, Kelsen said:

            "The identity of State and legal order is apparent from the fact that even sociologists characterize the State as a `politically' organized society.  Since society - as a unit - is constituted by organization, it is more correct to define the State as `political organization.'  An organization is an order.  But in what does the `political' character of this order lie?  In the fact that it is a coercive order.  The State is a political organization because it is an order regulating the use of force, because it monopolizes the use of force."

Of course, it is not for the Court to form its own view as to whether the applicants were likely to be subjected to persecution for reasons of political opinion should they be returned to Brazil.  The words “political opinion” are ordinary words of the English language and have not been the subject of judicial exposition limiting their meaning in the context of the Refugees’ Convention.  As Kitto J said in N.S.W. Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512:

"The common understanding of the words has therefore to be determined, and that is a question of fact: see the cases cited by Starke J. in the Broken Hill South Case (1941) 65 C.L.R., at p.155.   The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words as so determined; and that is a question of law: ibid; see also per Isaacs and Rich JJ. in Australian Slate Quarries Ltd. v. Federal Commissioner of Taxation (1923) 33 C.L.R. 416, at p.419.  If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J. in the Broken Hill South Case (1941) 65 C.L.R., at p.160."

The Tribunal very properly turned its attention to ascertaining whether the opinions and actions taken by Y would have been likely to have been regarded as adverse to and to have attacked the interests of the State, more particularly to that organ of State power, the Police Force.

The Tribunal examined corruption in Brazil and cited comments that Brazil was one of the most corrupt countries in the world, one reporter putting the ranking Brazil fifth amongst the corrupt countries and others suggesting fifteenth or seventeenth.  The Tribunal said that investigations into corruption in Brazil had indicated that State employees were widely implicated in corruption including judges, civil and military police, lawyers, businessmen, public servants, auditors, politicians, tax, health, labour and planning inspectors, low level managers and prison management.  It cited a report that  "Despite the good intentions of some public officials, most of Rio de Janeiro's police remain abusive, violent, and corrupt."

The Tribunal then turned its attention to persecution and said, inter alia:

            "There is a substantial body of evidence to suggest that individuals who witness, expose or prosecute the actions of corrupt public officials are often subjected to intimidation and serious ill-treatment."

I need not set out any more details of the Tribunal's careful examination of these points.  The Tribunal was seeking to determine whether Y would be looked upon merely as a campaigner against corruption who was at risk of retribution by individual corrupt officials, or whether corruption was so much a part of government and of the exercise of State power in Brazil that opposition to it could be regarded as opposition to authority as it was organised and operated in Brazil.  The Tribunal concluded that the views and actions of Y would have been likely to be regarded as contrary to the best interests of the State and particularly of its Police Force.  Supportive of this finding was the fact that complaints to appropriate authorities served not to activate an inquiry but to bring down harm upon Y and his wife.  The coercive power of the authorities appeared to be exercised against them, not against the corrupt officials.

In my opinion, the Tribunal's decision was open to it and the structure of its reasoning indicates that it approached the questions before it with a proper appreciation of the law to be applied.  In the end, of course, the words "political opinion" are ordinary words of the English language and it was for the Tribunal to decide that meaning and to determine whether the facts of the case fell within it.  No error of law can be found in a finding on the point unless there was a failure to take into account material considerations or the taking into account of immaterial considerations or the decision was so unreasonable that no reasonable decision-maker could have arrived at it.  Even then, such a flaw, which did not occur in this case, would not of itself indicate that the Tribunal had erred in its interpretation of the applicable law or in applying that law to the facts found by it.

Mr Beech-Jones submitted that the facts did not show that there was any motivation on the part of those who harmed Y and his wife to do so because of any view Y held or had expressed.  Rather, the facts indicated that those who harmed Y and his wife acted purely in their own interests.  Mr Beech-Jones submitted that there was no evidence of a Government policy to harm Y himself or some group of which he was a member.

However, the Tribunal understood the nature of the issue before it.  That is why it concentrated on establishing that there was corruption throughout the whole of the Government services including Brazil's Police Force, and that the complaints to higher authorities achieved little or nothing.  Persons who witnessed or exposed the actions of public officials, including Human Rights lawyers and activists, were likely to be subjected to serious ill treatment.  The Tribunal said, inter alia;

            "According to the US Department of State, investigations into police corruption, criminality and brutality are often hindered by intimidation, including death threats, directed at witnesses, prosecutors, judges, human rights monitors and workers aiding street children.  Police are also believed to be responsible for some execution style killings in retaliation for witnesses cooperation with prosecutors or investigators.  A military police major responsible for investigating corruption and death squad activities in the military police was allegedly killed by a death squad comprising military policemen, firemen and a civil policeman."

The Tribunal was entitled to conclude that Y's knowledge and conduct made him a danger not only to the policemen involved in the incident which he had observed but to the Police Force in general and to the manner in which power is exercised in Brazil.  The Tribunal's decision was open to it on the facts which it outlined in its reasons for decision.  I see no error in the way in which the Tribunal approached its decision-making task.

Mr Beech-Jones submitted that the Tribunal failed to explain the basis upon which the Tribunal concluded that Y’s opposition to criminal activities by police officers in Brazil constituted the expression of a political opinion for the purposes of the Convention.  However, the Tribunal made the basis of its reasoning clear.  Not knowing who precisely had harmed Y and his wife, the Tribunal could not make any express findings on that.  However, the Tribunal found that corruption was so widespread in government in Brazil that the harm done to Y and his wife was likely to represent government coercion against Y whose knowledge and actions were a danger to the operations of government instrumentalities such as the Police Force.  The Tribunal therefore found that Y’s “stance was effectively the expression of a political opinion against a pervasive aspect of the Brazilian State.”  The facts on which that finding was based were clearly set out.

The Tribunal spoke of the position of Y 's wife and daughter as if their application fell within the words "fear of being persecuted for reasons of .. membership of a particular social group".  However, it is clear from the Tribunal's reasons that the Tribunal concluded that Y 's wife and daughter were at risk of harm because of the combination of their relationship with him and of his political opinion.  This would be sufficient to bring the matter within the rubric of political opinion, which would seem to be the better way of expressing the matter.  His wife and daughter were at risk because harm to them could dissuade Y  from continuing to conduct his campaign in respect of corruption in the Police Force.  I do not imply any error of understanding of the applicable law from the expression used by the Tribunal.

In the circumstances, I agree with Mr J A Gibbons of counsel, who appeared for the respondents, that no reviewable error in the Tribunal's decision has been established.

The application will be dismissed with costs. 

Associate:

Dated:              15 May 1998