FEDERAL COURT OF AUSTRALIA

N 942/01 & N 944/01 v Minister for Immigration & Multicultural Affairs [2001] FCA 1556

IMMIGRATION – application for protection visa – whether the Tribunal failed to have regard to a relevant consideration

Minister for immigration & Multicultural Affairs v Yusuf  (2001) 180 ALR 1 referred to

Paul v Minister for immigration & Multicultural Affairs [2001] FCA 1196 referred to

N 942/01 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 944/01 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

MOORE J

5 NOVEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

1.      The application 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.

THE COURT ORDERS THAT:

1.      The application 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.

REASONS FOR JUDGMENT

Introduction

1                     These are applications by N 942/01 (“the applicant”) and N 944/01 ("the second applicant") for judicial review of decisions of the Refugee Review Tribunal (“the Tribunal”) given on 30 April 2001, affirming decisions of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) to refuse the applicant and the second applicant a protection visa.  The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).

Background

2                     The applicant and the second applicant are a male homosexual couple.  Their circumstances are not, for the purposes of these legal proceedings, materially different.  Nor is there any material difference in the legal issues sought to be raised in each application for judicial review.  Accordingly I will focus on the circumstances of the applicant to deal with both applications though, in doing so, will also discuss the circumstances of the second applicant.  The applicant is a citizen of Colombia, who arrived in Australia on a three month visitor’s visa on 13 December 1997.  On 23 January 1998 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) (“the Act”).  On 16 April 1999 a delegate of the Minister refused the grant of a protection visa and on 6 May 1999 the applicant applied to the Tribunal for review of that decision.

The Tribunal’s reasons

3                     The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of “refugee” and by the notion of “persecution”.  Reference was made to the judgments of the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, and to judgments of this Court in Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288, and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.  In a section in its decision headed “Evidence”, the Tribunal outlined the claims made by the applicant in his application for a protection visa and in oral evidence provided at the Tribunal hearing.  The claims are now outlined below.

4                     As noted earlier the applicant and his partner, the second applicant, are homosexuals.  The second applicant is also a citizen of Colombia.  They commenced their relationship in 1991 and, soon after meeting, began living together in Cali.  At the time of their meeting, neither was in full-time employment.  In October 1992, however, the applicant gained employment with a financial institution where he remained until about August or September, 1997.  The second applicant was employed as a waiter from 1991 until 1993, at which time he was dismissed on the basis of his homosexuality.  Following his dismissal the second applicant worked on a freelance basis from 1993 to 1995, before finding employment with Telecom in July 1996, where he remained until November 1997.

5                     The applicant and second applicant first experienced problems because of their relationship in 1993, when neighbours became aware they were living together as a couple.  After that, they were on occasion stoned, kicked and punched as they travelled to and from their residence, and in public places they were subjected to insulting remarks from members of the public who concluded from their mannerisms that they were homosexuals.

6                     On one occasion, in August 1996, the applicant and second applicant were returning home from watching a movie when they were assaulted by five or six men who beat them with sticks.  The applicant was able to identify one of the attackers as the son of a police captain, a neighbour of theirs, while the second applicant recognised two police officer friends of the police captain.  The applicant and second applicant received treatment at a nearby clinic, but did not report the attack to the police.  Their attackers had threatened to “finish them off immediately” if they reported it, and as the perpetrators had been police officers they did not believe they would have achieved anything by reporting it at a police station.

7                     The applicant had also been experiencing problems with his family, who had heard rumours of his homosexuality.  They would not have accepted him as a homosexual and therefore the applicant had always denied allegations that he was one.  When the fuss generated by the rumours had died down the applicant went home to visit his family, taking with him the second applicant who his family liked and accepted as being a friend of his.  During the visit, however, the applicant was discovered by his father kissing the second applicant.  A scene followed in which the applicant and the second applicant were insulted and abused by his father.  As a result of this confrontation the applicant’s father suffered a heart attack.  He was hospitalized, but lapsed into a coma and died five days later.  The applicant was held responsible by his family for what had occurred and was ostracized and insulted by relatives.

8                     Some time later the applicant and the second applicant were approached by a friend, also a homosexual, who was suffering from AIDS.  The friend had been dismissed from his job and asked to be put up as he “had no place to go”.  During his stay with the applicants, the friend revealed to their cleaning lady that he had AIDS, after which the cleaning lady did not return.  It was also after this disclosure that the neighbours began threatening them, the police captain’s wife being the main instigator.  They were told to leave “because they were a risk to the neighbourhood and their children”, and received anonymous messages stating they had five days to disappear “otherwise we break you”.

9                     The next incident to occur was in February 1997 when four shots were fired at their home.  A police patrol came to investigate what happened, but the applicant and the second applicant informed them they did not know who was responsible.  They did not show the police patrol the threatening note or notify them that their neighbour, the police captain, was involved.  They did, however, report the matter to the Public Prosecutor, again without revealing who they believed to be responsible.

10                  Following this attack the applicant and the second applicant left their home and stayed with a friend for a few weeks in the south of Cali.  They then arranged to move to Roldanillo, which is about three and a half hours drive away from Cali, after the applicant organised time off from his place of work and the second applicant secured a transfer with his employer.  After they left Cali, they were told by their friend with whom they had been staying that he had sighted strangers around his place, whom he took to be people searching for the applicant and the second applicant.

11                  The applicant and the second applicant then applied for and were granted, in June 1997, visas to visit Australia.  As they considered they were not under any further threat, they did not leave immediately but set about getting their “affairs in order”.  Later, though, the second applicant received at his workplace an “In Memoriam” card containing a death threat and in December, 1997, they departed for Australia.

12                  After arriving in Australia and deciding to apply for a protection visa the second applicant, in about November or December 1999, contacted his sister in Colombia and asked her to assist them to gather evidence to support their case.  She lived in Pereira which is about five hours by road away from Cali. She journeyed to Cali to retrieve from the Public Prosecutor a record of the complaint made about the attack on the applicant and his partner.  However on 18 January 2000 she was kidnapped from her home in Pereira and later killed. Her body was found four days later and showed signs that she had been tortured.

13                  On 29 August 2000 a threat was received by the second applicant’s mother, who ran a store in the area in which the applicant and the second applicant had first lived together.  She was told to “tell those two faggots that if they persist in investigating, that there will be more deaths like the one that happened to your daughter!”  Two days later the windows of her store were destroyed in the middle of the night and, fearing further acts of violence, she then closed the store.

The Tribunal’s findings

14                  The Tribunal, in a section in its decision (concerning the applicant) entitled “Findings and Reasons for Decision”, summarized the evidence and material provided by the applicant in support of his claims.  It commenced by finding, in relation to the evidence about the stance taken by his family, that it did not amount to “‛persecution’ for the purposes of the Convention.” 

15                  The Tribunal did, however, accept that the applicant and the second applicant were assaulted in 1996 as they returned from the movies, but stated:

“(I)t appears to me that their neighbours were primarily concerned with driving the Applicant and his partner out of that neighbourhood rather than with making a serious attempt on their lives.”

It can be seen that the Tribunal took the view that the group responsible for the assault were neighbours (a police captain, his wife, his son and his son's friends, two friends of the police captain who were also police officers and two other neighbours who were also police agents).

16                              Similarly, in relation to the repercussions resulting from their friend with AIDS staying with them, a fact which the Tribunal accepted occurred, it was stated:

“It appears to me that the threats made against them culminating in the shots fired at their home in February 1997 were made by a particular group in the neighbourhood where they lived in Cali.  …  I do not consider that the fact that their neighbours apparently continued to make threats against the Applicant and his partner after they had moved to Roldanillo alters the essential characterisation of the campaign being pursued against them as a vendetta by their former neighbours.”

            The Tribunal then addressed the killing of the second applicant’s sister and the subsequent damage to the store owned by the second applicant’s  mother.  The Tribunal accepted that these incidents occurred, and that the mother was warned in the following terms:

“Tell those two faggots that if they persist in investigating, that there will be more deaths like the one that happened to your daughter!”

The Tribunal said that it considered that the same group of people (the neighbours) were responsible for the problems the applicant and the second applicant had experienced in Cali, the threats they received when they moved to Roldanillo, the kidnapping and murder of the second applicant's sister and the warning given to the second applicant's mother.

17                  The Tribunal said the group (the neighbours) were, in relation to the conduct directed to the applicant and the second applicant when they lived in Cali, primarily concerned with driving the applicant and the second applicant out of the neighbourhood.  The continuation of the threats after the applicant and the second applicant moved to Roldanillo was characterised by the Tribunal as a campaign against them "as a vendetta by their former neighbours".  The murder of the sister was viewed by the Tribunal as "linked to her attempts to obtain reports from the [Public Prosecutor] and the police".  In addition, the Tribunal did not accept the applicant’s claim that their (the neighbours) motive for the threat made to the second applicant's mother was to cause “serious harm to the Applicant and his partner by reason of their homosexuality.”  It said:

“However, with respect, I consider that this ignores the substance of the threat, namely that there would be more deaths ‘if they persist in investigating’.  Since the Applicant and his partner remained in Colombia for a further nine months after the shots were fired at their home in February 1997 and did nothing to pursue the investigation of this incident after reporting it to the [Public Prosecutor] so there was a record, I do not accept that there is a real chance that they will pursue the investigation if they return to Colombia now or in the reasonably foreseeable future.  I do not accept, therefore, that there is a real chance that the Applicant and his partner will be persecuted by those responsible for the kidnapping and murder of the Applicant’s partner’s sister, the threat made to the Applicant and his partner through the Applicant’s partner’s sister, the threat made to the Applicant and his partner through the Applicant’s partner’s mother and the damage to the Applicant’s partner’s mother’s store.”

18                  In response to a submission made by the applicant’s representative that the pursuit of the complaint with the Public Prosecutor would have been “fruitless and positively dangerous”, especially in light of what happened to the second applicant’s sister, the Tribunal said:

“With respect, I do not agree.  Although the evidence of the Applicant and his partner is that those responsible for the attacks on them were police officers or friends or relatives of police officers, there is nothing to suggest that the police officers involved were acting in any official capacity or that their actions were encouraged or condoned in any way by the Colombian Government.  … 

…

The applicant and his partner did not report the criminal assault on them in August 1996 to the police or the [Public Prosecutor] and … I do not accept that they can complain that the State failed to pursue a proper investigation when they deliberately withheld the very information that might have helped such an investigation find those responsible.”

19                  As to whether there was a real chance the applicant and the second applicant would be, were they to return to Colombia,  persecuted by the group (the neighbours), the Tribunal said:

“I consider that, if these people were to threaten the Applicant again, he would be afforded effective protection by the Colombian Government and its law enforcement agencies.  Moreover, if the Applicant did not consider that he could return safely to Cali, I consider that it would be reasonable to expect him to move somewhere else within Colombia.  There are no language or other practical barriers to relocation within Colombia and both the Applicant and his partner have skills which have enabled them to find employment readily in the past, the Applicant with a financial institution and his partner as a waiter and subsequently with Telecom.”

20                  In relation to a submission by the applicant’s representative that “evidence in relation to so-called ‘social cleansing’ operations demonstrated that the law enforcement agencies were tainted and compromised and that homosexuals who experienced persecution had no recourse”, the Tribunal referred to independent country information relating to the treatment of homosexuals in Colombia and concluded:

“However, as I put to the Applicant in the course of the hearing before me, I do not accept that the authorities would not have protected him and his partner against their neighbours if they had sought their protection.  The Australian Department of Foreign Affairs and Trade has advised that the police and other authorities in Colombia do not target homosexuals as a group for harassment and that gay men are not subject to any particular forms of official discrimination in Colombia … .  I do not consider that the evidence before me establishes that the Colombian authorities provide any lesser degree of protection to homosexuals than to any other citizens of Colombia, nor that the Colombian authorities will not provide the Applicant with a level of protection sufficient to remove a real chance that he will be persecuted by private individuals or groups in Colombia by reason of his homosexuality.”

The Tribunal continued:

“The Applicant’s evidence is that he and his partner socialised with homosexual friends.  They did not go to nightspots associated with the homosexual community because they considered such places to be dangerous.  By no stretch of the imagination could they be considered as falling within any of the groups considered as … ‘disposables’.  Juan Pablo Ordonez, the source relied upon most heavily by the Applicant’s representative, states that ‘[t]he following groups of people are considered ‘disposable’ by broad sectors of Colombian society: beggars, street children, presumed criminals who are poor, poor people with mental health problems, poor sex workers, poor transvestites, poor drug addicts, scavengers who live on the street, and openly homosexual people living in poverty’.  As he notes, the common denominator of these groups is their poverty and their homelessness or destitute living conditions.  … (J)uan Pablo Ordonez observes that homosexuals who do not live in poverty also face significant discrimination ….  However he does not suggest that they are the targets of death squads.”

21                  The ultimate conclusion of the Tribunal was:

“Having regard to all of the evidence before me, therefore, I do not accept that the Applicant has a well-founded fear of being persecuted by reason of his homosexuality if he returns to Colombia now or in the reasonably foreseeable future.”

Furthermore, the Tribunal concluded that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention, thus affirming the decision of the Minister not to grant a protection visa.

The issues in the application and conclusions

22                  Counsel for the applicant raised two issues (which were also raised on behalf of the second applicant).  The first concerned the Tribunal's consideration of whether the applicant would be afforded protection by the authorities if he was at risk of harm because of his homosexuality.  The second concerned the Tribunal's consideration of the question of relocation.

23                  Part of the material before the Tribunal was a cable from the Department of Foreign Affairs and Trade dated 10 May 1999 dealing generally with the position of homosexuals in Colombia.  The cable noted that homosexuals had been, at times, the target of "social cleansing" campaigns by groups of vigilantes in urban areas in Colombia.  The cable then said:

“These vigilante groups are subject to police and criminal prosecution, although we understand convictions are rarely obtained and rarely significant.  This fact should again be considered in the light of a judicial system overwhelmed by more "serious" issues such as narcotics and kidnapping.”

24                  The Tribunal made no express reference to these observations about the judicial system in its later consideration of the applicant's claim.  Counsel for the applicants submitted that it could be inferred the Tribunal did not consider this information to be material and accordingly erred by failing to have regard to a relevant consideration.  Reference was made to the joint judgment of McHugh, Gummow and Hayne JJ in Minister for the Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [60].

25                  The second issue raised by counsel for the applicant (concerning relocation) was that the Tribunal did not refer to and take into account that the applicant and the second applicant had been pursued by their persecutors to Roldanillo and had also not taken into account what had happened to the second applicant's sister (that she had been kidnapped from where she lived, Pereira).  These events occurred well away from Cali where the applicant and the second applicant had lived and the group (the neighbours) also lived.

26                  Counsel for the Minister put several submissions in answer to the contentions of counsel for the applicant.  Each submission was said to entail a complete answer to both contentions.  However it is necessary to consider only the first of the submissions put on behalf of the Minister based, as it was, on a matter of principle rather than a detailed consideration of the approach of the Tribunal in the present matter.

27                  It is clear that if the Tribunal is required to deal with relevant considerations arising from the provisions of the Act having regard to the circumstances of the applicant evident from the material before the Tribunal.  A failure of the Tribunal to do so constitutes reviewable legal error.  As McHugh, Gummow and Hayne JJ said in Minister for the Immigration and Multicultural Affairs v Yusuf (supra) at [73]-[74]:

“….On analysis, however, the asserted duty to make findings may be simply another way of expressing the well‑known duty to take account of all relevant considerations.  The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider.  In that regard it is important to recall, as Brennan J said in Attorney‑General (NSW) v Quin:

            ‘The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison:  'It is, emphatically, the province and duty of the judicial department to say what the law is.'  The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’

This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration.  It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision‑making relevant considerations for the decision‑maker.  What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision‑maker has properly applied the law.  They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision‑maker acts.”

28                  In addition, as was pointed out by their Honours at [69], a court can infer that any matter not mentioned in the reasons for decision was not considered by the Tribunal to be material: see also Gaudron J at [37].

29                  In the present matter the Tribunal did consider what were fairly clearly two relevant considerations arising from the case advanced by the applicant (and the second applicant) in support of the grant of a protection visa.  The matters were first whether the State would provide effective protection if the applicant was to return to Colombia and was at risk of persecution from the group (the neighbours) who had earlier caused him harm and, secondly whether, if the applicant was at risk of persecution were he to return to Cali, he could avoid the risk by relocating to another location in Colombia.  In my opinion, the matters referred to by counsel for the applicant were, in substance, pieces of evidence that could have been relevant to a consideration of those matters.

30                  I will assume, for present purposes, that there were no implied findings about the state of the legal system and the capacity and willingness of the group (the neighbours) to engage in activities outside Cali: as to implied findings see A v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545 at [54] and Dhiman the Minister for Immigration & Multicultural Affairs [2000] FCA 221 at [12].  The failure to make findings about the two matters identified by counsel for the applicant might, in other circumstances, suggest that the Tribunal failed to consider the two relevant considerations referred to in the preceding paragraph.  However in the face of an express consideration of each of them it is difficult to conclude that the Tribunal has erred in the way discussed by McHugh, Gummow & Hayne JJ in the passage quoted above.  The position is not materially different from that discussed by Allsop J in Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 at [78]- [79] (Heerey J agreeing):

“Once it is accepted that the Tribunal dealt with the subject matter or element of the claim, it becomes apparent that the real complaint of the appellant must be that the Tribunal failed to expressly deal with the evidence referred to in the letter of 19 November 1999 and should have, somehow, preferred that material to the countervailing evidence (which it was accepted existed) which supported or tended towards the position adopted by the Tribunal in the emboldened paragraph referred to in paragraph [69] above.  Thus expressed, it becomes plain that it cannot be a question of the failure to take into account a consideration made compulsorily relevant by the Act or regulations: see Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 and Yusuf, supra.

Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction (as to which issue see generally and not exhaustively, Minister for Immigration and Multicultural Affairs v X [2001] FCA 858; Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832; Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736; Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911; Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 and Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864) they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed.  It may be that if the element of the appellant’s claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with.  In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed.  However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim.”

31                  The applicant and the second applicant had not demonstrated reviewable legal error on the part of the Tribunal.  Accordingly each application should be dismissed and each applicant ordered to pay the Minister's costs in his application.

Associate:

Dated:              5 November 2001