Agudelo v Minister For Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 24 February 1999. 2 The applicant is a Colombian national who arrived in Australia on 24 October 1995. He applied for a protection visa on 22 August 1996. 3 Colombia is a country wracked by internal armed conflict. The applicant owns a farm there in the department of Caldas. He claimed to be a victim of extortion and attempted extortion by a guerrilla group, the Ejército de Liberación Nacional ("ELN"). On 10 July 1997 a delegate of the respondent ("the Minister") refused to grant the visa. He stated that "the applicant's fear is not related to any of the five reasons set down in the refugees convention". 4 On 7 August 1997 the applicant applied to the Tribunal for review of the delegate's decision. He engaged a solicitor who was a migration agent and, in a statutory declaration later given to the Tribunal, claimed that he feared being killed by the ELN for his "political activities and opinion". The Tribunal conducted an extensive review, which included taking evidence from the applicant, and on 24 February 1999 it affirmed the delegate's decision. 5 The grounds specified in the further amended application before the Court are as follows: "1. The Tribunal erred in its interpretation of the law and/or in its application of the law to the facts as found, in holding that the actions of a terrorist group in targetting [sic] the applicant for extortion partly because he assisted in alerting the army to their actions could not be persecution for reason of political opinion. 2. The Tribunal erred in its interpretation of the law in that it considered that resistance to criminality cannot be construed as a political opinion. 3. The Tribunal erred in law, failed to observe procedures required by the Act to be observed and/or made a decision not authorised by the Act, in that it did not deal with all relevant issues arising on the material before it. 4. The Tribunal erred in its interpretation of the law in its consideration of the issue of internal relocation. 5. The Tribunal failed to observe procedures that it was required by law to observe, in that it failed to give proper reasons in regard to its finding that an option of internal relocation was available to the applicant." 6 The first three grounds relate to the third element of the Convention definition of "refugee" identified in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570. An applicant for a protection visa who has established a fear of persecution must also show that the persecution which he fears is for one of the reasons enumerated in Art 1A(2) of the Convention. The remaining grounds rely upon the so-called principle of "internal flight" discussed in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437. Mr Karp, who appeared for the applicant, submitted that, in the respects indicated in those grounds, the decision of the Tribunal involved an error of law of the type referred to in s 476(1)(e) of the Act. 7 The Tribunal prepared a comprehensive statement under s 430(1) of the Act, referring (at pp 5-18) to the claims made and the evidence submitted by and on behalf of the applicant. Separate sub-headings in its statement introduce such topics as the applicant's membership of the Liberal Party, his membership of a community action group, threats to him by the ELN, his seeking protection from the army, his reporting an apparent murder attempt to the police and further threats to him from the ELN after relocating to the neighbouring department of Risaralda. The Tribunal referred specifically (at p 14) to evidence given by the applicant at the hearing: "… the applicant told the Tribunal that his problem was not because of money. He said that the guerrillas only demand more money from those in larger farms but the demands against him related to their perception of his role in representing the voice of the people and involving the army. He said that all extortion is political in rural Colombia and said that his role as treasurer of the local committee made him a good target, …" 8 The Tribunal also noted (at p 16) a further submission from the applicant's solicitor that the guerrillas target civilians and community leaders like the applicant. It stated (at p 16): "In relation to the issue of the guerrillas' motivation in targeting the applicant, the submissions advanced that the criminal activities of the guerrillas do not mean that they have given up their political beliefs nor their wish to overthrow the central government; the reasons for the targeting of the applicant have not just been for economic motives as he is not a wealthy man. The submissions also argue that the guerrillas' preparedness to extort money from, not only people as individuals but, the municipality as a whole indicates that the guerrillas motives were not only of an economic nature. In terms of the specific motivation of the guerrillas towards the applicant, the submissions argued that he was targeted as a member of the Liberal Party and the communal action group; stood up to the ELN by asking for help from the army; refused to hand in the grant moneys; and that 'small' people like the applicant are targeted to set an example to their close friends, relatives and fellow villagers to get the village to cow into submission." 9 Having referred to what it described as "Further Country Information", the Tribunal set out its findings and reasons. The Tribunal accepted that the events the applicant claimed took place in Colombia may have taken place, but it did "not accept that the threats, and hence his fears, are for reason of his political opinion, real or imputed" (p.23). The Tribunal was "unable to accept that the ELN were politically motivated in their actions against him" and found that "the ELN's motive was a financial one". The Tribunal set out (at pp 23-28) reasons for these conclusions. Finally, the Tribunal dealt (at pp 28-29) with the issue of relocation. 10 Mr Karp's primary submission is that the Tribunal erred in failing to recognize that the applicant's "resistance" to the ELN could have resulted in the imputation of a political opinion. (As explained in Guo at 571, it is sufficient that a political opinion is imputed to an asylum claimant by his persecutor.) Mr Karp also complains that the finding about the ELN's "financial" motivation was not to the point and obscured consideration of the real issue, namely, whether a political opinion contrary to that of the ELN was imputed to the applicant. 11 This case was heard only a few days after the decision of the High Court in Minister for Immigration and Ethnic Affairs v Eshetu (1999) 73 ALJR 746. What Gaudron and Kirby JJ said in that case about imputed political opinion (at 761-762) may have inspired the submissions of the applicant in the present case. However that may be, it is obvious from the way in which the Tribunal expressed its findings and from the excerpts set out above that it gave careful consideration to the question whether a political opinion which might result in persecution was likely to be attributed to the applicant. 12 Mr Karp cited the decision in Voitenko v Minister for Immigration and Multicultural Affairs [1999] FCA 428 in support of the proposition that an action, such as being involved in calling in the army in response to the ELN's threats, may give rise to an imputed political opinion. But, as counsel for the Minister correctly points out, Voitenko was a case where the Tribunal had failed entirely to deal with the refugee claimant's investigation into government corruption and its possible implications. In the present case the Tribunal clearly turned its mind to the likely consequences of the applicant's role in securing protection from the army. A fair reading of the Tribunal's reasons does not show that its assessment of the ELN's motivation in threatening the applicant distracted it from considering whether "the problems that the applicant had with the ELN were for reason of his political opinion" (p 28). 13 Mr Karp also submitted that, in the present case, there had not been a real, as distinct from a purported, exercise of power by the Tribunal: see Guo per Kirby J at 598. In support of that submission, he relies upon what is said about political killings in the 1996 and 1997 country reports on human rights practices for Colombia prepared by the United States Department of State. The Tribunal did, in fact, refer to these reports in its statement. The use that the Tribunal made of such information was a matter for it, and Mr Karp's submissions serve only to illustrate that he is really contesting the facts found by the Tribunal. 14 The applicant has failed to demonstrate any error of law in the Tribunal's finding that he does not have a well-founded fear of persecution for a Convention reason. The relocation issue thus does not arise. The Tribunal did consider the availability of State protection for the applicant but that was in the context of a fear different to that with which the Refugees Convention is concerned. The application will accordingly be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.