FEDERAL COURT OF AUSTRALIA

Applicants S266/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 313 

MIGRATION – application for judicial review – protection visa – where Tribunal not satisfied that there was a well-founded fear of persecution within the meaning of the Convention – where no jurisdictional error established – application dismissed.

NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297 referred to

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112 referred to

APPLICANTS S266/2002 V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 376 OF 2003

BEAUMONT J

15 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed, with costs.

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

REASONS FOR JUDGMENT

(ON APPLICATION FOR ORDER ABSOLUTE)

Beaumont j:

Introduction

1                     This proceeding was commenced by the filing of a draft order nisi in the High Court on 16 August 2002.  In February 2003, Gaudron J, without granting the order nisi, remitted the application to this Court, and further ordered that leave be granted to the applicants to amend the draft order nisi.

2                     By their second amended draft order nisi (which, by consent, is now to be treated as an application for an order absolute, without any necessity to consider whether nisi was appropriate (cf. NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297), the applicants seek, by way of judicial review, the following relief: 

‘1.        A writ of certiorari directed to the second respondents removing the decision of the [Refugee Review Tribunal] dated 15 February 2002 into this court to be quashed.

2.         A writ of Mandamus directed to the second respondent directing them to hear and determine the applicant/prosecutor’s protection visa application according to law.’

3                     The grounds of review relied upon are stated by the applicants as follows:

‘Grounds of Review

1.                  Jurisdictional error by the second respondent in relation to the decision on the Applicants’ and the Australian born child Applicant’s protection visa

2.                  A constructive failure to exercise jurisdiction by the second respondent in relation to the decision on the Applicants’ and the Australian born child Applicant’s protection visa

3.                  Denial of Natural Justice by the second respondent in relation to the decision on the Applicants’ and the Australian born child Applicant’s protection visa

4.         Failure to take into account relevant consideration/take account of irrelevant considerations in the decision of the second respondent in relation to the decision on the Applicants’ and the Australian born child Applicant’s protection visa’.

BACKGROUND

4                     The background to the application was (properly) summarised by Mr Lloyd, of counsel for the respondent, as follows.

·                    In August 1998, the first applicant (hereafter ‘the applicant’) (the first applicant is the husband of the second applicant and the father of the other applicants), the second applicant and the third applicant arrived in Australia from Columbia.

·                    On 25 September 1998, an application for protection visas was filed by the first three applicants.  The second and third applicants did not have their own claims to be a refugee.  The applicant claimed to have left Colombia following the receipt of threats said to be as a consequence of his membership of a political party known as the Union Patriotica (‘UP’).

·                    On 19 October 1998, the applicant sent to the Department a more detailed statement setting out his responses to questions asked in the protection visa application form.

·                    On 20 October 1998, an officer of the Department invited the applicant to attend an interview, which was accepted.

·                    On 13 November 1998, the Minister’s delegate wrote to the applicant informing him that his application for a protection visa had been refused.  Annexed to that letter was a decision record explaining the reasons for the decision.

·                    On 23 November 1998, the first, second and third applicants lodged an application for review with the Refugee Review Tribunal (‘the Tribunal’).

·                    On 1 October 1999, the fourth applicant, who was born in Australia, lodged an application for a protection visa with the Department.

·                    On 18 January 2000, the delegate refused the fourth applicant’s application.

·                    On 16 February 2000, the fourth applicant lodged an application for review with the Tribunal.

·                    On 4 January 2002, the Tribunal invited the first to the fourth applicants to attend a hearing to be held on 7 February 2002.  At that hearing, evidence was given by the applicant.

·                    On 13 March 2002, the Tribunal handed down a decision affirming the delegate’s decisions not to grant to the applicants protection visas.  The Tribunal’s decision was to the following effect:

(1)               The Tribunal had concerns about the applicant’s credibility.

(2)               The Tribunal was prepared to accept that the applicant was a member of the UP in Cali from about 1990 until August 1997.  He was not an office holder but was just one of some hundreds of active members there.

(3)               The Tribunal did not accept that the applicant had received any threats as a consequence of his membership of that political party or at all.

(4)               The Tribunal considered that, even if the applicant did receive threats as he claimed and assuming they occurred for the reasons claimed by the applicant, it was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the 1951 Convention Relating to the Status of Refugees (‘the Convention’) if he returned to Colombia now.  This was essentially because the Tribunal considered that it was implausible that paramilitary groups would retain any ongoing interest in the applicant.

(5)               The Tribunal noted that the applicant had ceased supporting the UP in any way since he left Colombia notwithstanding that he was safe in Australia.  In these circumstances, the Tribunal concluded that the applicant would not rejoin the UP if he returned to Colombia.

(6)               In any event, the Tribunal considered that, even if the applicant had a subjective fear of harm in his home area of Cali, the applicant was able to relocate elsewhere within Colombia.

THE APPLICANTS’ CASE

5                     In their application, the applicants provided the following particulars of their grounds of review. 

‘Particulars

(a)               Error of law in relation to political opinion by creating a false dichotomy between political and imputed political opinion and by failing to consider the political opinion imputed to the applicant.

(b)               The [Tribunal] erred in treating its finding that the Applicant “had not supported the UP in any way since he left Colombia, including being safe in Australia.” ... as inconsistent or mutually exclusive with a well founded fear of persecution on the ground of political opinion adverse to the government and paramilitaries being imputed to him because of his former membership of the UP political party.

(c)        The [Tribunal] erred by imposing a requirement of discretion on the Applicant in its finding “Furthermore, he fled the country in August 1998 rather than stay and support the UP in a more discreet manner or relocate and support the UP elsewhere in Colombia, which according to the UP is possible in many cases.” ...

(d)       Error of law in relation [to] relocation and the reasonableness of relocation including:

(i)                 Relying upon outdated information - a 1998 Report from Goran Larsson (Swedish Refugee Authority CX 29601) (SRD-5) as authority on which to base findings on relocation for a hearing conducted in February 2002.  ...

and by failing to take into account relevant considerations including;

(ii)        the independent country information about the risk to the civilian population of Colombia as a result of the armed conflict and civil unrest, particularly the forced displacement of persons.  ...

(iii)       the state of commotion declared in Colombia in August 2002, which does not any longer guarantee fundamental rights (a state of siege) and is strong evidence of risk of persecution to the civilian population of Colombia.

(iv)       “Indiscriminate attacks” which may result in civilian casualties and direct attacks on the civilian population a clear violation of international humanitarian law.

(e)               The true and current risk of persecution by ordinary members and sympathizers of the UP.

(f)                Error of law in respect to the claim by the Applicant to be a member of a social group. ...

“In his protection visa application the Applicant claimed inter alia, to be a refugee for reason of his membership of a particular social group but no further detail was provided until the Tribunal asked him about his claim in the hearing.  In response the Applicant merely referred to the Colombian people in one of two “social” groups and he then referred to the UP members, which from the context he seems to regard as a subset of “the rest”.  The Tribunal has already dealt with the Applicant’s claims as a UP member and the Tribunal does not accept that the extremely diverse “rest” of the Colombian population...’

The [Tribunal’s] reasoning in relation to this claim indicates that it misunderstood the applicant’s case and consequently failed to address the applicant’s case.  The [Tribunal] misconceived the applicant’s claim by mis­stating and/or failing to identify the proper social group, and therefore it failed to apply itself to the real question to be decided by ignoring relevant considerations.

(g)       The structure of the [Tribunal’s] reasoning on this issue of defining the social group indicates that it approached the question of the social group claim before it without a proper appreciation of the law to be applied.  It was incumbent on the RRT to attempt to identify any social group of which the applicant might be a member prior to any conclusion it might reach concerning the validity^, of his claims to persecution by virtue of that membership.

The [Tribunal] firstly determined whether the applicant had a well-founded fear of persecution before considering whether the grounds claimed by the applicant came within a Convention ground claimed (i.e. political opinion and membership of a particular social group).  This disclosed constructive jurisdictional error in that the [Tribunal] misunderstood the law and the facts to be applied to the law.

“It is only after the relevant social group, if any, has been identified that a decision maker can sensibly give consideration to the question whether the applicant has a well founded fear of persecution for reason of his or her membership of that particular social group”

Khawar v MIMA (1999) 168 ALR 190, 197 [31], Branson J

(h)       The [Tribunal] failed to consider the following particular social group,

“business owners in Colombia”

that formed a social group under the Convention’.

CONCLUSIONS ON THE ORDER ABSOLUTE

6                     As mentioned, this is a claim for final relief, in the form of an order absolute for the writs mentioned. 

7                     It will be convenient to consider the several arguments advanced by the applicants separately. 

8                     As to par (a), in my opinion, there is no substance in the applicants’ ‘false dichotomy’ argument (cf. Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112). 

9                     In this connection, the Tribunal said (at Court Book 148 – 149):

‘In any case, even if the Applicant did receive threats as claimed and the incident on 10 August 1997 did occur as claimed in the Tribunal hearing and assuming they occurred for the reason claimed by the Applicant, that is, his UP membership and activity, the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention if he returns to Colombia now.  This is because the Tribunal finds it implausible that paramilitaries would retain any interest in the Applicant after he left Cali, especially if as the Applicant claimed at one point UP members were targeted to destroy the UP in Cali.  Also there is no evidence to suggest that the paramilitaries retained any interest in him in Cali after the 10 August 1997 shooting incident, or after a threat was made in Bogota in July 1998.  Furthermore, the Tribunal accepts independent country information to the effect that the UP is no longer a threat to the two main traditional political parties or to the Government and it was almost defunct in 1999.  Presumably because the UP is no longer a threat, there have been relatively few reports of deaths of UP members in the last few years.’

10                  As to par (b), in my view, there was no jurisdictional error here. 

11                  With respect to par (c), the Tribunal was not imposing upon the applicant any requirement to be ‘discreet’, as appears from the context of the Tribunal’s paragraph (appearing at Court Book 149):

‘The Applicant does not claim that he would rejoin the UP if he returned to Colombia and there is nothing in his evidence to suggest that he would do this; although he claimed that he went to some local UP meetings in Bogota, the Tribunal is not satisfied on this point given that his oral evidence at first had been that he ceased his UP activities in August 1997, and in any case, the Applicant has not supported the UP in any way since he left Colombia, including despite being safe in Australia.  Furthermore, he fled the country in August 1998 rather than stay and support the UP in a more discreet manner or relocate and support the UP elsewhere in Colombia, which according to the UP is possible in many cases.  In addition, the Tribunal accepts independent country information to the effect that the UP was almost defunct by 1999 and more recently it says that it is not even recruiting.’

12                  It appears that the Tribunal is here doing no more than describing the history.  In any event, the Tribunal has found that the UP is no longer a threat. 

13                  The ‘relocation’ issue raised in par (d) discloses, in my view, no jurisdictional error. 

14                  Paragraph (e) is in the same position for judicial review purposes. 

15                  With respect to par (f), the Tribunal said: 

‘In his protection visa application the Applicant claimed inter alia, to be a refugee for reason of his membership of a particular social group but no further detail was provided until the Tribunal asked him about this claim in the hearing.  In response the Applicant merely referred to the Colombian people being in one of two “social” groups and he then referred to the UP members which from the context he seems to regard as a subset of “the rest”.  The Tribunal has already dealt with the Applicant’s claims as a UP member and the Tribunal does not accept that the extremely diverse “rest” of the Colombian population (ie those not in the bureaucracy/oligarchy/imperialists group) which for example, lack a common unifying characteristic (Applicant A’s case) are a particular social group within the meaning of the Convention.’

16                  Earlier in its reasons, the Tribunal had said (at Court Book 146):

 ‘The Tribunal asked the Applicant about his claim that he was a refugee for reason of his membership of an unspecified particular social group.  He replied that there were two social groups in Colombia the bureaucracy/oligarchy/imperialists and the rest ie the mass of the Colombian people, and as UP members, they oppose the Government and anyone who does that is the Government’s enemy.’

17                  Given that finding, and the absence of any evidence to contradict it, there was, in my opinion, no jurisdictional error here.  

18                  As to par (g), the applicant here did attempt to define a particular social group, but the Tribunal did not accept his contention, as has been noted (at Court Book 150). 

19                  With respect to par (h), there was, in my opinion, no jurisdictional error here because the applicant did not seek to make a case that he feared persecution by virtue of his being a ‘business owner’ in Colombia.

Orders

20                  Accordingly, the application for an order absolute must fail.

21                  I make these orders:

1.         The application is dismissed, with costs.

2.         Direct that the time for filing any appeal from this judgment shall not commence to run until 23 March 2004.

Associate:

Dated:              24 March 2004