FEDERAL COURT OF AUSTRALIA

Ramirez v Minister for Immigration & Multicultural Affairs [2000] FCA 1000

MIGRATION – Refugee application – Review of decision of Refugee Review Tribunal – appellant claimed that he feared persecution for reason of his imputed political opinion – whether the Tribunal erred in law in its finding that the appellant’s resistance to criminality could not be construed as a political opinion – whether the Tribunal erred in not considering whether the appellant’s whole local community was being persecuted because it sought the protection of the army - whether the Tribunal erred in not considering whether the alleged persecution had more than one motivation.

Migration Act 1958 (Cth) ss 36, 430, 476

Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421 referred to

Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560 referred to

Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906 referred to

Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908 referred to

V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355 followed

Sarrazola v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 641 followed

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 followed

Minister for Immigration and Multicultural Affairs v Y (Davies J, 15 May 1998, unreported) followed

Canada (Attorney-General) v Ward (1993) 103 DLR (4^th) 1 approved

GERMAN DARIO AGUDELO RAMIREZ v MINISTER FOR IMMIGRATION AND MULTICULTRUAL AFFAIRS

N 94 OF 2000

HILL, MATHEWS & LINDGREN JJ

2 AUGUST 2000

SYDNEY

On appeal from a judge of the Court

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The applicant pay the respondent’s costs.

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

On appeal from a judge of the Court

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from the judgment of a judge of this Court (Whitlam J) dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) brought by the appellant under s 476 of the Migration Act 1958 (Cth) (“the Act”).  The decision of the Tribunal, made on 24 February 1999, had affirmed a decision of the respondent’s delegate to refuse the appellant a protection visa. 

2                     The criterion for the grant of a protection visa, under s 36 of the Act, is that the applicant for it be a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees as amended by the Refugees Protocol (compendiously, “the Convention”).

3                     Article 1A(2) of the Convention provides that a refugee is any person who:

“owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable, or owing to such fear, is unwilling to return to it.”

Background

4                     The appellant, a Colombian national, was born in Anserma in the Department of Caldas on 20 August 1957.  After completing his schooling he worked in a supermarket in Anserma, where he remained until 1994.  In 1992 he bought a small farm, of 5,000 square metres, about ten minutes drive from Anserma.  In 1994 he retired as a supermarket administrator in order to devote all his time to his farm.  In November of that year, in circumstances we shall describe shortly, he left the farm and the Anserma area and moved to Pereira approximately 200 kilometres away.  On 22 October 1995 he left Colombia for Australia, where he arrived on 24 October.

5                     On 22 August 1996 the appellant applied for a protection visa.  His application contained brief handwritten statements to the effect that he feared that the guerilla group Ejercito de Liberacion Nacional (ELN) would kill him if he returned to Colombia.  They had threatened to kill him if he did not make regular payments to them.  They had increased their demands to amounts which he could not afford, so they had attacked him on his farm and he feared further attacks.  As part of his response to some of the questions in the standard form of visa application the appellant stated “More information will be provided later”.  He did provide some information in the form in answer to those questions but did not provide any further information before the delegate made his decision. No issue arises as to the validity of the application for review or as to the Tribunal’s jurisdiction to review the delegate’s decision.  It has not been suggested that the visa application was not valid: cf Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421; Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560; but now Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906 (FC) and Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908.  On 10 July 1997 the visa application was rejected on the basis that the appellant’s fears related to criminal extortion rather than persecution for a Convention reason.

6                     On 7 August 1997 the appellant applied to the Tribunal for review of the delegate’s decision.  A statutory declaration of the appellant, dated 22 September 1997, was later forwarded by his solicitors to the Tribunal together with other supporting documentation.  The statutory declaration contained details of the appellant’s background and claimed that he and his family had connections with the Liberal Party.  The Liberal Party is the ruling party in Colombia and was said to be strongly opposed by the ELN.  The appellant said that he was also involved with the communal action group of the district of Campo Alegre where his farm was.  This group sought government assistance in community projects such as building roads and providing health services.  He was treasurer of this group.  The statutory declaration gave details of the ELN’s demands for money from him and other farmers in the area.  He and the others agreed to meet a request for money made in May 1994 which, in the appellant’s case, was for 500,000 pesos.  In oral evidence before the Tribunal, the appellant said that this initial approach was only in the nature of a request and was not accompanied by a threat.  He and others thought that payment would buy them some peace.  However about three months later, in July 1994, the guerillas made increased demands (700,000 pesos in his case) which the appellant and others decided not to pay.  The appellant had also been asked by the guerillas to pay them an amount of 10 million pesos which the government had granted to the local group for the building of a clinic.  The appellant refused, saying that he was unable to obtain access to these funds. What happened afterwards is described in the statutory declaration as follows:

“24. With my neighbours of the communal action group we organised a delegation to go to Manizales with petitions from everyone in the town and ask for help and protection from the army.  As a result of out [sic] petition, the army established its presence in the area including mounting a mobile military post, which patrolled the area day and night.  They had confrontations with the guerillas in the neighbouring mountainous region and after this the guerilla’s presence was not felt in the region.

25. But after a few weeks, the army left, and we were once again alone and unprotected.  From that moment on the written threats started again.  A few people around the area started receiving notes saying that we had to pay double the quota because our area supported the government.  News about the notes spread but it was different from before when people had received individual demands about the amount we had to pay.  The notes said that if we did not comply we would pay with out [sic] lives.

26. For us there then began a terrible time of fear.  As strangers arrived in the region for the start of the harvest we suspected that they were guerillas.  Because of this many friends from the region went to the cities Pereira, Medellin, Cali etc leaving their farms in the hands of caretakers.

27. At the end of August an unexpected violence was unleashed in the Anserma region.  Several farmers were assassinated on their farms by the guerillas.  The army returned to the region and there were several confrontations in the areas close to Campo Alegre.

28. The Communal Action Group had continued to meet but with less enthusiasm than before.  People had started to withdraw from the group and to leave the district because they were frightened of the guerillas.  I stopped going in around August 1994.

29. In October one night I heard a noise in the middle of the night and went out to investigate I did not find anyone.  However the next day I found a note.  This note said that I had to pay double the previous quota of 700,000 pesos.  This was because I was an ‘enemy’.  I had collaborated with the army by asking them in to the area and I was a delegate of the Liberal Party.  The note also said that I had to leave the farm because I was a member of the Liberal Party.  The guerillas again demanded that I find the 10,000,000 pesos which had been the amount of the grant from the government.  The note said that if I did not pay I would pay with my life.

30. As far as I know I was the only person in the communal action group who received an individual note.  The other people in the region who received individual notes were the more wealthy owners of the haciendas.”

7                     The appellant went on to describe what may have been an attempt on his life which took place on 30 October 1994, two days after the receipt of this note.  He was at his farm when a number of shots were fired in his direction.  He reported the incident to the police who told him that the cartridges found at the farm indicated that the weapons were of the type used by the guerillas.  Not long afterwards he received a telephone call telling him that the previous attempt was only designed to frighten him, and on the next occasion they would not miss.

8                     In November 1994, as a result of these events, the appellant moved with his wife and son to Pereira where he worked as a kitchen assistant at a hotel.  However about six months later he received another threatening letter, addressed to him at the Pereira Hotel.  The statutory declaration described this letter, and the appellant’s reaction to it, in the following terms:

“37. In May 1995 the guerillas sent another threatening letter to me at the Hotel Melia.  They said that I had to pay 500,000 pesos immediately or 1,000,000 in October.  This letter again mentioned my being an enemy because of my membership of the Liberal Party, because I had brought in the army against them and I was refusing to give them the money from the action group.  They said that I was not giving this money to them as I was collaborating with the government.  The note then said that I was the principal enemy of theirs and that in the end all of their enemies would be finished off.

38. The tone of this note was different to all the others I had received.  I felt that the demand for money was not the purpose and that now I was to be killed because of how the guerillas were interpreting my actions.  I had always been a member of the Liberal party (the party in government), I had been an executive member of the communal action group which had called in the army against the guerillas, and I had refused to give them the money from the action group.  This refusal in their eyes was a further and final indication of my allegiance with the government and opposition to them.

39. After receiving this note I was certain that they would kill me.  I sent my son to study in Manizales and to stay at an uncle’s house.  I sent my wife to La Paila in the Vale dell Cuica.  I applied for my visa and travelled to Australia, arriving on 24 October 1995.”

9                     On 31 August 1998 the appellant’s solicitor forwarded a submission to the Tribunal together with other supporting material including a number of articles relating to the activities of the ELN.  The submission contained an account of the appellant’s background similar to that contained in the earlier statutory declaration.  It referred to a number of reports, including a US State Department report for 1996, which described the ELN as exacting reprisals from people suspected of collaborating with the army.  The submission contained the following statement:

“Those suspected of collaboration with the army and those involved in certain municipal activities are particularly at risk of being targeted by the ELN.  Mr Agudelo falls into both of these high risk categories.  As Treasurer of the Community Action Group and a known member of the Liberal Party, he was repeatedly approached to obtain funds for the ELN and was threatened should he decline to do so.  His eventual refusal to cooperate was explicitly interpreted as hostile towards the ELN and, given his known membership of the Liberal Party, as pro-government.  More importantly, however, was his key role in bringing the army into the local area.  This was seen by the ELN as direct evidence of his collaboration with the ruling political structure, leading to his classification as an ‘enemy’ whose eventual elimination was assured.”

The Proceedings before the Tribunal

10                  On 10 September 1998 the appellant attended at the Tribunal where, with the assistance of an interpreter, he answered questions put to him by the Tribunal member dealing with his case.  A transcript of the proceedings was included in the appeal book.  The appellant told the Tribunal member that he feared the ELN would kill him if he returned to Colombia.  When asked why, he said that it was because of his close involvement with the Liberal Party.  He also gave further details of his involvement with the local community group and their request for protection from the army.  In that regard he said that a delegation of twelve people, including himself, went to Manizales where they spoke to a commander in the army who promised to provide assistance.  Some days later a military post was established in the area.  While the army remained, which was for a period of about one month, there were no further problems.  But after they left there was a resurgence of guerilla activity.  He and other farmers received notes saying that they were collaborators with the army and would now have to pay double.  The transcript records the following exchange:

“Q253             OK  The next question that I have, Mr Agudelo, relates to the reason why the guerrillas want you.  See, as I said to you at the very beginning, people who are, the definition of a refugee requires someone to have a well founded fear for one of the conventional [sic] reasons.  And in looking at your case, one could think that the reason why the guerrillas want you is to extort money from you?

A(INTPRTR)No, if it were about money it might be different because the sums they asked me for are only small sums as far as money is concerned.  Why they ask for more serious money, where they can obtain larger sums is from people with larger farms, but why they look for me is because I’m a representative of the voice of the people.  What they can’t forgive me is that I involved the army, that I betrayed them to the army. …... out of this I am now regarded as a collaborator.”

11                  On 3 December 1998 the Tribunal wrote to the appellant seeking further submissions as to whether it would be reasonable for him to relocate within Colombia.  In relation to the appellant’s claim that he feared persecution for reason of his political opinion, the Tribunal’s letter quoted various items of “country information” upon which the appellant was invited to comment.  These items contained passages commenting on the strength of the guerilla movement in Colombia, which country was said to be in a state of permanent crisis.  The sources generally attributed a profit motive to the guerillas’ activities.  The Marxist-Leninist ideologues of the past, it was said, were now largely devoted to money-making activities including “kidnapping, extortion and taxes on cocaine production”.  Much of their income, it was said, was derived from extortion and protection rackets in the countryside.

12                  On 15 December 1998 the appellant’s solicitor wrote to the Tribunal setting out reasons why it was submitted that it would not be reasonable for the appellant to live anywhere in Colombia.  The letter enclosed a further statutory declaration of the appellant, made on 15 December 1998, and a lengthy report from the US Department of State on human rights practices in Colombia in 1996.  In his statutory declaration the appellant took issue with the proposition that the ELN guerillas were no longer politically motivated.  He made the following observations:

“7. As a Colombian, I feel that the guerilla groups have a good chance of overthrowing the government, as stated in page 1 of the RRT letter, they control 57% of the country’s 1,071 municipalities.  Also, the money they bring in through drugs trafficking, extortion, kidnapping, protection rackets and other activities is very large.  I know from the RRT letter that they are better equipped than the Colombian Army itself.  Given time, they will not even need to ask for support from the urban areas, whoever has the most guns, has the power.  Who can argue with that?

8. The ultimate aim of these guerilla groups is to take over power from the government.  Why else would they bother to sabotage the oil pipelines?  While people say they are only ‘narcoguerillas’, once they have the money and have consolidated their power, I feel that they will overthrow the government much like the communists did in China in 1949.

9. I am a member of the Liberal Party and also one of the influential members of the Communal Action Group in my district, Campo Alegre.  We had been successful in getting local development grants from the government to build a clinic.  Our aim is clear: to limit ELN’s efforts to recruit the local people in my district to the ELN’s cause by getting the government to show support for the local people.  The clinic is a way for the government to gain the support of the people.

10. I know that it is due to my political activities and opinion that the ELN has targeted me.  They are angry I called in the army twice and also that I told them I could not hand over the money for the clinic to them.  I did not have the money, the municipality had the money, but they did not believe me.

11. I would like to tell the Tribunal that I am one of the local civic leaders targeted by the ELN as what the US State Department said in their Country Report on Colombia 1997 on page 2 of the RRT letter.”

The Tribunal’s Decision

13                  The Tribunal’s decision took the familiar course of describing the legislation and the requirements of the Refugees Convention before turning to deal with the claims and evidence in the immediate case and ultimately the Tribunal’s findings and reasons.  In the “claims and evidence” section the Tribunal set out the appellant’s claims, and quoted “country information” including some of the reports submitted by him.  Under the heading “findings and reasons” the Tribunal made the following primary finding:

“The Tribunal accepts that the events the applicant claimed took place in Colombia may have taken place but does not accept that the threats, and hence his fears, are for reason of his political opinion, real or imputed.  The Tribunal finds that there was a shift in emphasis in the applicant’s evidence that sought to give his claims a Convention nexus.  The Tribunal has considered the evidence and arguments put forward by the applicant but, is unable to accept that the ELN were politically motivated in their actions against him and finds that the ELN’s motive was a financial one.”

14                  The Tribunal went on to make the findings summarised below:

a) the appellant had only a limited involvement with the Liberal party, and was not a member of any significance;

b) the appellant was a member, and may even have been treasurer, of the communal action group, and he resigned from the group in October 1994; 

c) the appellant was involved in seeking the protection of the army against the ELN;

d) the appellant and others later received demands for double their quota because they had collaborated with the army and later again an attempt was made on the appellant’s life;

e) “While … the incidents claimed by the applicant may have taken place in much the manner described, the Tribunal doubts the veracity of the claim made by the applicant that he was identified as an enemy of the ELN for involving the army and for his membership of the Liberal Party.  Every other aspect of the applicant’s evidence seems to indicate that the ELN was making demands to a broad group of farming people and that the people of his district were generally being penalised … for involving the army.  Moreover, the record of the applicant’s  complaint to police about the last incident clearly indicates that the applicant thought that he was attacked for alerting the police of the actions of extortionists and not for reason of his political opinion real or imputed.”;

f) the ELN continued to make demands for payments from the appellant, linked to the dates of harvest and the level of profit expected; and

(g) the guerillas were aware that the appellant relocated to Peirera;

h) the ELN demanded that the appellant give them the “grant moneys of the community action group”, and that this demand was made on the appellant because he was treasurer of the group.  “However, even though this group could have been seen to be opposed to the ELN and to have had a role in securing protection from the army, what the ELN wanted was, not the destruction of the group or other such outcome but, the money the group had.”;

i) the ELN were motivated by profit;

j) there was a shift in the claims made by the appellant between the making of his original application and his evidence before the Tribunal.

15                  The Tribunal completed this part of its decision in the following terms:

“In sum, the Tribunal accepts that the applicant was involved with the Liberal Party and his community action group, that he, amongst others in this locality, received a number of demands and threats from the ELN, and that he was involved in seeking protection from the army against the ELN.  However, the Tribunal does not accept that these events were for reason of the applicant’s political opinion.  The Tribunal finds that the nature of the events is such as to indicate that the ELN was motivated by profit and there [sic] actions are more aptly described as extortion and are, as such, criminal and not political in nature.  Broadly speaking extortion involves extracting money from a suitable victim.  That is not to say that extortion could never be persecutory but it is not possible, in the applicant’s circumstances, to say that the ELN were motivated in their demands of him for reason of his political opinion.  The Tribunal does not accept that the problems that the applicant had with the ELN were for reason of his political opinion and therefore finds that his fears are not Convention related.”

16                  The Tribunal then went on to discuss the possibility of relocation – a discussion which was strictly unnecessary in the light of its primary finding.

The Judgment at First Instance

17                  It was submitted to the trial Judge that the Tribunal had failed to deal with one aspect of the appellant’s claim to fear persecution for a Convention related reason, namely that he had a well-founded fear of persecution by reason of his imputed political opinion.  It was suggested that the appellant’s resistance to the ELN in calling in the army could have resulted in the imputation to him of a political opinion thereby giving rise to the persecution complained of.  His Honour, in dismissing the appeal, found that the Tribunal had clearly turned its mind to the likely consequences of the appellant’s role in securing protection from the army.  He considered that no error of law had been demonstrated in the Tribunal’s findings.

The Grounds of Appeal

18                  The notice of appeal specified five grounds of appeal.  There is little point in reproducing them all here.  With one exception, they do little to elucidate the issues argued on appeal.  In essence, as Mr Karp on behalf of the appellant put it, they raise two issues.  The first is whether the trial judge was correct in concluding that the Tribunal addressed the correct issue in its finding that any persecution suffered (and therefore feared) by the appellant was not for reason of his imputed political opinion.  In this regard, the third ground of appeal is in the following form:

“The Court erred in finding that the Tribunal had not erred by misinterpreting the law and misapplying the law to the facts that it found in that resistance to criminality cannot be construed as a political opinion.”

19                  The second relates to the Tribunal’s findings on the issue of internal relocation.  This issue only arises if the appellant is successful on his first ground.  We turn now to discuss that first ground.

Did the Tribunal Fail to Address a Material Issue?

The Appellant’s Contentions

20                  The appellant’s case before the Tribunal was that he was singled out for persecution by the ELN for reason of both his actual and his imputed political opinion.  The actual political opinion arose by virtue of (1) his membership of the Liberal party, (2) his pro-government activities with the community action group, and (3) the fact that he had become, as he described it, “a voice of the people”, “a political leader”.  His imputed political opinion arose because of his involvement in the calling in of the army.  The calling in of the army was not itself a political act, but the appellant says that it was taken by the ELN to be the manifestation of a political opinion, thus leading to his being regarded as a collaborator, and suffering persecution on that account also.

21                  The Tribunal did not accept that the ELN’s actions against the appellant were motivated politically.  It rejected each aspect of the appellant’s claim, and was therefore not satisfied that the appellant had been persecuted (or had a well-founded fear of persecution) for reason of his political opinion, actual or imputed.

22                  The particular issue which the appellant now says that the Tribunal failed to discuss was whether, after the army left, the whole local community, including the appellant, was persecuted by the ELN for its imputed political opinion, namely for its perceived opposition to the ELN through its collaboration with the army.  This issue – that the appellant was a victim of group persecution for reason of a political opinion imputed to the group – was not directly raised in the appellant’s submissions before the Tribunal.  His case before the Tribunal was that he was singled out for persecution.  That submission was rejected by the Tribunal.  However the appellant’s case on appeal was that there was material before the Tribunal which suggested that the ELN were persecuting the whole local community for reason of its perceived political opinion.  The appellant was fearful that this conduct would resume upon his return, and he submitted that he thus had a well-founded fear of persecution for reason of his imputed political opinion.  The Tribunal failed to deal with this issue, it is said, which was an error of law under s 476(1)(e) of the Act.  Alternatively it was a failure to observe requisite procedures under ss 476(1)(a) and 430(1).

23                  The evidence before the Tribunal which the appellant says suggested that the ELN was persecuting the local community for its perceived political opinion was as follows:

1.      Appellant’s statutory declaration dated 22 September 1997

“But after a few weeks, the army left, and we were once again alone and unprotected.  From that moment on the written threats started again.  A few people around the area started receiving notes saying that we had to pay double the quota because our area supported the government.  News about the notes spread but it was different from before when people had received individual demands about the amount we had to pay.  The notes said that if we did not comply we would pay with our lives. [emphasis added]

For us there then began a terrible time of fear.  As strangers arrived in the region for the start of the harvest we suspected that they were guerillas.  Because of this many friends from the region went to the cities Pereira, Medelin, Cali etc leaving their farms in the hands of caretakers.

At the end of August an unexpected violence was unleashed in the Anserma region.  Several farmers were assassinated on their farms by the guerillas.  The army returned to the region and there were several confrontations in the areas close to Campo Alegre”

2.      Submission to Tribunal by appellant’s solicitor, dated 31 August 1998

“After paying their quotas, a larger demand for money soon followed.  This time the Communal Action Group decided not to pay, but to approach the authorities in Manizales for protection.  As a result, the army established its presence in the area, and the guerilla presence seemed to disappear.  Yet once the army left, the written threats started again, this time demanding more money as a consequence of having supported the government. [emphasis added]

In this climate of fear, people started to flee the area, leaving their farms in the hands of caretakers.  People also started to withdraw from the Communal Action Group.  Mr Agudelo stopped attending meetings in around August 1994, and resigned in October 1994.  That was this was done under duress is verified in a letter of reference signed by the Secretary of the Association of Communal Groups of the Municipality of Anserma (enclosed).

At the end of August 1994, several farmers were assassinated.  The army returned and there were several confrontations with the ELN in the area close to Campo Alegre.

In October 1994 Mr Agudelo received a demand for double the quota asked for the year before.  The reason given was his collaboration with the army and his involvement in the Liberal Party.  As a result, the threat declared that he had become an ‘enemy’ of the ELN.  The note also again demanded that the 10,000,000 pesos be handed over from the Communal Action Group fund.  His life was threatened should he not pay.”

3.      The appellant’s evidence before the Tribunal

After giving evidence that he had travelled to Manizales and spoken to an army commander there the evidence as recorded in the transcript continued:

“Q224:            Ah hmm.  What did he say?

A(INTPRTR)   We told him the problem that we had and he said that he would, he promised that he would assist, and some eight days later the military post was established, and the soldiers patrolled day and night, and in fact there were encounters between these troops and the guerrillas in the region next door.

Q225               OK.  So what, did the problem stop?

A(INTPRTR)   At that time we had no more problem, but later on there was a resurgence of guerrilla activity all over the country and that mobilised also our region, and in August these people re-appeared.

Q226               So how long were the troops there for?

A(INTPRTR)   One month, the army was there for one month.

Q227               OK. So what happened?

A(INTPRTR)   They were, they began to make trouble for people.

Q228               How?

A(INTPRTR)   They were, we got notes we were saying we were collaborators with the army and that we were helping the government.

                        [emphasis added]

Q229               Anything else?

A(INTPRTR)   And that now our contributions would have to be paid double, that otherwise they would convert the region into one, that otherwise they would make the region like another part of the country, which is a guerrilla region.”

24                  The appellant’s evidence as to the ELN’s actions after the army left was described by the Tribunal in the following passage:

“The applicant claimed that people received demands for double the earlier quota after the army left but, said, that this was a collective demand threatening loss of life.  Some people left and moved elsewhere, the applicant stopped attending the action group meetings, several farmers were allegedly assassinated and the army returned to fight the guerrillas.  He claimed that he received a note demanding his double quota again in October 1994 as well as a demand for the grant money and that the note stated that he was an enemy of the ELN for involving the army and for his membership of the Liberal Party and demanded that he leave the farm.  At the hearing he told the Tribunal that people had demands for double their quota for collaborating with the army.  The applicant also claimed that he was the only person in the action group to receive an individual note and that the only others who received individual notes were wealthy hacienda owners”

25                  The Tribunal’s comments in relation to this evidence are quoted above (in para 14(e)). In essence, the Tribunal accepted that these incidents may have taken place as the appellant described.  However the Tribunal did not accept that the ELN regarded the appellant as a political enemy.  It went on to say: “Every other aspect of the applicant’s evidence seems to indicate that the ELN was making demands to a broad group of farming people and that the people of his  district were generally being penalised … for involving the army”.  Mr Karp particularly relies upon this passage, for it is the appellant’s submission that this “penalisation” of the local farmers amounted to persecution for a Convention reason.

26                  It is well accepted that criminal activity can amount to persecutory conduct (V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355, Sarrazola v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 641).  The conduct relied upon in this case as persecutory is said to have commenced after the departure of the army when the ELN doubled its monetary demands and resorted to violence.  Mr Karp suggested that the guerillas’ activities until then constituted a form of revenue collection which fell short of persecution.  However once the demands became so onerous that the local farmers were unable to meet them, and were forced to flee their farms rather than face the guerillas’ retaliation, the acts became persecutory in nature.  In so far as they were, at least partially, motivated by the desire to punish members of the local community, including the appellant, for their perceived opposition to the ELN by calling in the army, Mr Karp submits that it was open to the Tribunal to find that there was persecution “for reason of” an imputed political opinion.

27                  The Tribunal’s central finding was that the ELN were motivated by a desire for profit rather than politics, and that their extortion activities were criminal rather than political in nature.  The appellant’s submission is that, in making this finding, the Tribunal did not advert to the possibility that the ELN might have had more than one motivation, namely to extort money and also to punish those who were seen to have resisted them.  In this regard the appellant says that there was a “complete absence of any discussion by the Tribunal as to whether resistance to the politically based criminality of the ELN could be a political opinion”.

The Respondent’s Contentions

28                  The respondent points out that the appellant did not suggest to the Tribunal that he had a well-founded fear of persecution by reason of the guerillas’ victimisation of the local community.  His case was based entirely upon the proposition that he was singled out for persecution because of his actual or imputed political opinion.  Ms Henderson, who appeared for the respondent, urged that, in any event, the Tribunal dealt with this issue.  The Tribunal adverted on several occasions to the question of whether the ELN’s actions against the appellant were motivated by reference to his political opinion as a result of the bringing in of the army.  It decided that there was no such motivation.  The guerillas targeted the appellant “not for his political beliefs, but his real and perceived capacity to pay”.

Discussion

29                  It is correct that the appellant’s case before the Tribunal was not based on a fear of group persecution by reason of the group’s imputed political opinion.  His case was that he personally had been singled out because of his political affiliations and his prominence in local affairs, including his role in bringing in the army.  On the other hand, the Tribunal is not bound by the way in which a case is presented.  If there is material before the Tribunal which raises a basis upon which an applicant might satisfy the Convention criteria, then the Tribunal is obliged to deal with that issue whether or not it is expressly relied upon by the applicant.  This case, however, does not fall within that category.  In our view the Tribunal clearly discussed and dismissed all possible bases upon which the appellant might have succeeded in his application for review.

30                  There are, in our view, two bases upon which the appellant’s arguments must fail.  They are, first, that the Tribunal clearly rejected the proposition that the appellant suffered (and therefore had a well-founded fear of) persecution upon the basis that he now puts forward.  Second, given the Tribunal’s other findings, the persecution now said to have been suffered (and therefore to be feared) by the appellant is not capable of amounting to persecution “for reason of” his political opinion, actual or imputed.

31                  As to the first matter, the Tribunal explicitly rejected the appellant’s claim that there was any connection between his involvement in the calling in of the army and the ELN’s subsequent demands upon him.  In this regard it made the findings set out in para [14] above.

32                  The appellant’s case before the Tribunal was that he was a particular target for the ELN’s retribution after the departure of the army because he was a prominent local figure and was one of the delegation of twelve who had actually sought the army’s assistance.  It follows that if the calling in of the army had been perceived by the guerillas as denoting collaboration with the authorities, they would have had greater reason to persecute the appellant on this account than they did to persecute the remainder of the community.  The Tribunal accepted that the appellant was one of the people who had gone to Manizales to seek the army’s intervention.  But in the passage quoted earlier it rejected the proposition that there was any causal connection between the appellant’s actions in this regard and the ELN’s subsequent demands upon him.  The ELN was motivated by profit rather than by politics, according to the Tribunal’s finding. 

33                  It is impossible to reconcile this finding of the Tribunal with the proposition which the appellant now raises, namely that the ELN was persecuting the whole of the local community for its perceived collaboration with the authorities.  If there was no political element in the ELN’s demands against the appellant, who had been active in bringing in the army, there could not have been a political element in the ELN’s demands against the community at large, most of whom had been mere recipients of the army’s protection.

34                  The Tribunal clearly rejected the proposition that any increase in the ELN’s demands after the departure of the army was attributable to the appellant’s or the community’s involvement in seeking the army’s protection.  The only evidence in support of a causal connection between the two events arose from the notes said to have been received by the local farmers after the army had left, saying that the guerillas’ demands were being doubled “because our area supported the government” (see highlighted passages in para [23] above).  The Tribunal did not accept that these notes established that the guerillas’ demands against the appellant were politically motivated, and must have reached the same conclusion in relation to the demands against the rest of the community.  It plainly regarded the ELN as opportunistic in its demands, and did not consider that the contents of these notes denoted the imputation of a political opinion.  It might have been preferable if the Tribunal had articulated this finding more precisely than it did.  But its failure to do so cannot, in the circumstances of this case, amount to an error of law under s 476(1)(e) or a failure to observe procedures under s 476(1)(a) and s 430(1) of the Act.  As the majority of the Full Court said in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845:

“There is no specific requirement in s 430 for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made.  That … view … is consistent with the language of the section.”

35                  Accordingly, the possibility that there was group persecution, as now suggested by the appellant, must be taken to have been rejected by the Tribunal.  This possibility is not left open by the Tribunal’s other findings.

36                  There is, as earlier mentioned, a further basis upon which this appeal must fail.  The Tribunal found that the ELN’s extortionary activities were motivated by profit, not politics.  It followed that acts of opposition or resistance to the ELN and its extortionary demands were similarly devoid of political motivation, and cannot have been perceived to be political.  The bringing in of the army was not itself a political activity;  it was designed to protect the local community not to achieve a political objective.  As such, it might well have been perceived by members of the ELN as displaying active opposition to the organisation and its activities.  But in the light of the Tribunal’s findings that the ELN’s activities were criminal rather than political, any  person or group who did no more than resist or oppose those activities was not thereby to be regarded as holding any particular political opinion.

37                  Nor, in our opinion, did the Tribunal in this case make the same mistake as in Sarrazola (cited earlier in para [26]), where the Tribunal failed to recognise that a person may be motivated to persecute for more than one reason.  The Tribunal in that case had acted on the basis that a finding that the claimed persecutors were motivated by self-interest to recover money they believed was owing to them was necessarily inconsistent with a finding that they were motivated by a Convention ground.  The Full Court found this to have been an error of law under s 476(1)(e) of the Act.

38                  In this case the Tribunal accepted that criminal extortion can be persecutory in certain circumstances.  However it found that the ELN were “motivated by profit” and that their actions were “criminal and not political in nature”.  This was a finding of fact, not a general statement to the effect that criminal activity cannot also be politically motivated. 

39                  Resistance to extortion can, in certain circumstances, manifest a political opinion so as to attract the Convention if persecution follows.  This was the case in Minister for Immigration and Multicultural Affairs v Y (Davies J, 15 May 1998, unreported) (“Y”).  In that case the appellant and a friend witnessed an incident implicating local Brazilian police in criminal activities.  He and his friend commenced their own investigations of the incident and sought to report the results to the authorities.  Both of them were subsequently tortured.  The friend was killed, presumably murdered.  Y and his family left Brazil and came to Australia where he sought a protection visa.  The Tribunal found that he had suffered detriment “amounting to persecution due to his political opinion and the political opinion attributed to him by officers of the state”.  The Tribunal’s decision survived an application for review by Davies J who made the following observation (at page 4):

“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.”

40                  The reasoning in Y was adopted by the Full Court in V v Minister for Immigration and Ethnic Affairs (cited earlier in para [26]).  The facts in that case were similar to those in Y.  The appellant and a friend had conducted an inquiry into official corruption in their region in Russia.  The friend had been brutally assaulted and the appellant feared that the same would happen to him.  He fled Russia and came to Australia where he sought a protection visa.  This was refused by the Minister’s delegate and the Tribunal.  An appeal to a single judge was dismissed.  However, an appeal to the Full Court (Wilcox, Hill and Whitlam JJ) was unanimously allowed.  Wilcox J, after quoting the above passage of Davies J in Y, made the following observation (at para [16] ):

“As I understand Davies J, as a matter of law it is enough that a person holds (or is believed to hold) views antithetic to instruments of government and is persecuted for that reason.  It is not necessary that the person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge.  Of course, the higher the person’s political profile, the easier it may be to persuade a tribunal of fact that the person has been persecuted on account of political opinion, rather than for some other reason; but that is matter going to proof of the facts, not a matter of law.”

41                  In the same case Hill J said as follows (at paras [32]-[33]):

“The exposure of corruption itself is an act, not a belief.  However it can be the outward manifestation of a belief.  That belief can be political, that is to say a person who is opposed to corruption may be prepared to expose it, even if so to do may bring consequences, although the act may be in disregard of those consequences.  If the corruption is itself directed from the highest levels of society or endemic in the political fabric of society such that it either enjoys political protection, or the government of that society is unable to afford protection to those who campaign against it, the risk of persecution can be said to be for reasons of political opinion.  Whether that is the case in Russia is a matter for the Tribunal, not for this Court.  So too must be the question whether the testimony of Mr V about what happened to the friend is believed as well as the question whether Mr V’s fears about his receiving the same treatment as the friend is believed and whether that fear is well founded.

It is not necessary in this case to attempt a comprehensive definition of what constitutes “political opinion” within the meaning of the Convention.  It clearly is not limited to party politics in the sense that expression is understood in a parliamentary democracy.  It is probably narrower that the usage of the word in connection with the science of politics, where it may extend to almost every aspect of society.  It suffices here to say that the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts (which where corruption is involved, either demonstrate that the government itself is corrupt or condones corruption) reflective of an unstated political agenda, will be the holding of a political opinion.  With respect, I agree with the view expressed by Davies J in Minister for Immigration and Ethnic Affairs v Y [1998] FCA (unreported, 15 May 1998, No. 515 of 98) that views antithetical to instrumentalities of government such as the Armed Forces, security institutions and the police can constitute political opinions for the purposes of the Convention.  Whether they do so will depend upon the facts of the particular case.”

42                  It is not necessary that a person hold views (or be perceived to hold them) which are antithetical to the government in order to attract the protection of the Convention.  In Canada (Attorney-General) v Ward (1993) 103 DLR (4^th) 1, the appellant, then a member of a para-military terrorist organisation in Northern Ireland, had released hostages taken by his organisation who were under his guard.  The organisation suspected him of facilitating the escape.  He fled to Canada where he sought refugee status.  The Canadian Supreme Court held that State complicity in persecution is not a prerequisite to a valid refugee claim under the Convention.  La Forest J, in delivering the judgment of the Court, adopted the interpretation of ‘political opinion’ suggested by Goodwin-Gill, in The Refugee in International Law (Oxford: Clarendon Press, 1983), at p 31 namely “any opinion on any matter in which the machinery of state, government, and policy may be engaged”

43                  We return to the circumstances of the present case.  Had the ELN’s activities had a political dimension, as the appellant submitted to the Tribunal, then mere acts of resistance to the organisation might have been taken to manifest a contrary political opinion.  The protection of the Convention might be attracted in such as event.  However the Tribunal’s finding that there was no political component in the ELN’s actions precludes such a conclusion in this case.

44                  It follows from the above analysis that the Tribunal in its reasons addressed all issues which were relevant to the case presented by the appellant and available upon the material before it.  The primary judge was correct in finding that the Tribunal’s decision displayed no error of law.

45                  In the light of these findings it is unnecessary to discuss the relocation issue.

Conclusion

46                  For the above reasons, the appeal should be dismissed with costs.

Associate:

Dated:              2 August 2000