FEDERAL COURT OF AUSTRALIA

S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 987

S311 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

N 296 of 2003

BRANSON J

11 SEPTEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an order nisi be dismissed.

2.                  The applicants pay the respondents’ costs on the basis outlined in paragraph 5 of the order of Justice Gaudron of 6 February 2003.

REASONS FOR JUDGMENT

introduction

1                     On 6 February 2003 Justice Gaudron of the High Court made orders in this matter including orders as follows:

‘1.        The Applicant have leave to file an amended draft order nisi, such amended draft order nisi to be filed by 21 February 2003, and the amendments to properly take account of the parties.

2.                  The further proceedings in this action be remitted to the Federal Court of Australia

3.                  The application proceed in that Court as if the steps already taken in the application in this Court had been taken in that Court.’

2                     The steps taken in the High Court did not include the making by that Court of an order nisi in terms of the draft application or any order nisi.  Order 51A rule 5 of the Federal Court Rules provides that:

‘(1)      Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge:

(a)               will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and

(b)               if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.

(2)        In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.’

3                     Today I have heard Mr Gwozdecky, counsel for the applicants, on whether an order nisi should be made and on whether, if an order nisi were made, it should be made absolute.  I directed Mr Bromwich, counsel for the first respondent, to address me solely on the issue of whether an order nisi should be made.  The second respondent filed a submitting appearance.

4                     Before an order nisi for prohibition or certiorari may be granted it is necessary for the party applying for the order to show that he or she has an arguable case that the person or body to whose proceeding the writ is directed has exceeded its jurisdiction or otherwise erred in a manner that would justify final relief by way of an order absolute (Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 at 183 per McHugh J).  The other claims for relief made by the applicants in this case are dependent upon the claims for writs of prohibition and certiorari. 

5                     The grounds of review set out in the draft order nisi filed on 21 February 2003 are:

‘1.        A constructive failure to exercise jurisdiction by the second respondent in relation to the decision on the Applicants and the Applicant family’s protection visa

2.                  Denial of Natural Justice by the second respondent in relation to the decision on the Applicants and the Applicant family’s protection visa

3.                  Failure to take into account relevant consideration/take account of irrelevant considerations by the second respondent in relation to the decision on the Applicants and the Applicant family’s protection visa

4.                  Jurisdictional Error by the second respondent in relation to the decision of the Applicants and the Applicant family’s protection visa’

I interpolate that the submissions as made to the Court today did not in any clear way follow the grounds of review outlined in the draft order nisi. 

applicant’s claims

6                     The applicants entered Australia from Colombia on 7 March 1998 on tourist visas.  I will hereafter refer to the male applicant as ‘the applicant’ as the claims for protection visas were based entirely on his claim of fear of persecution if he returned to Colombia.

7                     By letter dated 16 April 1998, with the assistance of a registered migration agent, the applicant applied for a protection visa on the ground of his ‘well founded fear of being persecuted in Colombia for reason of imputed political opinion as a former member of the Colombian police force directly involved in November 1987 in the destruction of a narcotics factory operated by a guerrilla band headed by the brother of the Governor of Caqueta of whom he was the official bodyguard at the time’.  As I have already mentioned the other members of the applicant’s family sought protection visas based on the claims of the applicant. They did not make separate claims based on any well founded fear of their own.

8                     In his application form for a protection visa the applicant indicated that he feared that Marxist Leninist guerrillas (‘FARC’) would harm him if he returned to Colombia because of the damage he had done to them by leading the police to the narcotics factory referred to above.  He claimed that his action had forced the provincial governor, who was the brother of the local guerrilla leader who was still active, into exile.  He referred to three attempts on his life made after he led police to the narcotics factory. 

9                     At the hearing before the Tribunal the applicant also claimed that he feared persecution on the ground of his political opinion as a member of the Democratic Alliance, a group aligned with M19, a group persecuted by the government and opposed to FARC.  It is accepted today that this claim was rightly dismissed.

10                  At the hearing before the Tribunal the applicant further claimed to fear persecution in Colombia on the ground of his membership of a particular social group; namely, a former police officer who upheld the law.  This claim is no longer pursued although it was argued before me that the Tribunal should have found that the applicant was a member of a particular social group constituted of current or former Colombian police officers trained and working in counter intelligence and drug operations, or who once did such work, and who in their operations had destroyed drug operations and exposed corrupt government officers and their link to the FARC left-wing guerrilla group and drug cartels.

decision of the tribunal

11                  The Tribunal was satisfied that the applicant has a well-founded fear of persecution in Colombia based on the likelihood of further attacks of the kind which he had previously experienced.  However, the Tribunal affirmed the decision of the delegate of the respondent not to grant the applicant a protection visa because it was not satisfied that the applicant’s well founded fear of persecution was a fear of being persecuted for any of the reasons identified in Article 1A(2) of the Convention on the Status of Refugees as amended by the Protocol on the Status of Refugees (‘the Convention’).

applicant’s contentions

12                  It has been contended on behalf of the applicant today that the Tribunal committed jurisdictional error in the way in which it gave consideration to whether the applicant had a well founded fear of being persecuted by reason of a political opinion imputed to him (ie the political opinion of being a supporter of the Government of Colombia or an adversary of FARC) or by reason of being a member of a particular social group.  The major portion of the submissions made on behalf of the applicant, however, amounted to a re-arguing of the applicant’s claim to be entitled to a protection visa.

13                  The Tribunal rejected the contention that there was a social group in Colombia consisting of former members of the police force or a more narrowly defined group, namely, former members of the police force who performed their duties lawfully.  It is accepted that it was not suggested to the Tribunal that the applicant was a member of the social group to which reference is made in [10] above.  No evidentiary basis for a finding that this suggested social group exists has been able to be identified.  Nor has anything suggesting that the applicant fears persecution because of his membership of a group so defined been able to be identified.  The Tribunal did not in these circumstances err in failing to give consideration to the possibility that the applicant has a well founded fear of persecution by reason of his membership of this suggested social group.

14                  In any event, the Tribunal was not satisfied that the applicant had been attacked as a former member of the police force or any sub-group of the police force.  The Tribunal found that the applicant was attacked as an individual; that is, that he was attacked because he was the person, or one of the people, responsible for the destruction of the narcotics factory.  The Tribunal considered that FARC would similarly have attacked a civilian who had been responsible for leading the Colombian authorities to the narcotics factory.

15                  Although it has been vigorously contended today that the Tribunal was led into error by a false dichotomy I am not satisfied that this is so.  Nothing before the Tribunal suggest that the applicant’s attackers were motivated by anything other than the applicant’s involvement in the destruction of the narcotics factory.  Mr Gwozdecky in truth, it seemed to me, was seeking to urge on the Court a ‘but for’ test of causation for persecution.  Although it may be true that but for the applicant being a police officer he would not have been involved in the destruction of the narcotics factory, this does not lead to the conclusion that, within the meaning of the Convention, he was attacked because he was a police officer, or any subgroup of police officers. 

16                  The only basis upon which the applicant sought to support a well founded fear of persecution in Colombia was that those who has previously attacked him might do so again.  The conclusion of the Tribunal that the applicant had previously been attacked solely because of his involvement in the destruction of the narcotics factory rendered it unnecessary for the Tribunal to give detailed consideration to whether FARC, or anyone else, imputed to the applicant as a former law‑abiding police officer a political opinion of being a supporter of the legitimate government of Colombia or an opponent of FARC.

other matters

17                  An application for review of the decision of the Tribunal was made to this Court in December 1998.  On 18 March 1999 Whitlam J concluded that there was no reviewable basis of error in the Tribunal’s decision (see [1999] FCA 336).  No appeal was brought from his Honour’s decision.  Subsequently it appears that the applicant’s wife approached the first respondent claiming protection for her three children.  She placed reliance on the United Nations Convention on the Rights of the Child.  These approaches, which were all unsuccessful, were made during the course of 2002.  This proceeding was initially instituted as a claim for relief arising out of the decisions of the Minister in 2002.  Only in February 2003 were the claims now relied upon raised in this proceeding. 

18                  Although it was initially conceded by Mr Gwozdecky that the claims argued today could have been argued before of Whitlam J, that concession was later withdrawn.  However, I am of the view that each of the arguments advanced before me today was open to be advanced in front of Whitlam J.

19                  Gaudron J, as I have mentioned, ordered that this application proceed in this Court as if the steps already taken in the High Court had been taken in this Court.  In my view it is open to be contended that this application, as argued today, when treated as a proceeding in this Court is an abuse of the process of this Court having regard to the unappealed decision of Whitlam J of 18 March 1999.  It is also, in my view, open to be contended that the claims as argued today should be defeated by the delay that attended their being raised in any court proceeding other than the application before Whitlam J.

conclusion

20                  However, I prefer to base my decision on the ground that there is no arguable case for the final relief claimed in this matter.  The arguments advanced on behalf of the applicant make clear, in my view, that what is in fact sought before this Court is review on the merits of the decision of the Tribunal.  A review of that kind is, of course, not available to the applicant. 

21                  The application for an order nisi in terms of the draft before me is dismissed.  The applicants must pay the respondents’ costs on the basis outlined in paragraph 5 of the order of Justice Gaudron.

Associate:

Dated:              18 September 2003