Applicant A v Minister for Immigration & Ethnic Affairs

The applicant's brother, Miguel, travelled to Panama to try to comprehend the full circumstances of Arturo's death. He was arrested apparently by the Ecuadoran authorities on or outside the Ecuadoran border and detained for 27 months. He seems to have been gaoled for an extended period. The brother-in-law who had been arrested was located by the family in May of 1988 when the Cordero government was approaching the end of its term. Apparently he was in a filthy, unkempt state, and almost blind, having been kept in an underground cell. The applicant said that during this period she and her husband were tortured and detained. In the late 1980s the Cordero government was apparently succeeded by a leftist party headed by President Cavallos. In 1989 the Cavallos Government signed some kind of peace agreement with the AVC and subsequently, in October 1991, the AVC was, except for a minute ultra-militant faction, absorbed into Cavallos' apparently democratic left-wing party. Human rights abuses have reduced in Ecuador but it would seem are not entirely a thing of the past. The U.S. State Department, whose assessment the Tribunal relied on, took the view that in 1993 to 1994 most fundamental human rights abuses stemmed from: "shortcomings in the politicised and inefficient legal and judicial system. People are subject to arbitrary arrest; once incarcerated, they may wait years before coming to trial unless they resort to paying bribes." The only material to suggest that by 1994 the applicants had any well-founded fear of prosecution was their own evidence and what was provided by a committee known as CEDHU, an ecumenical organisation concerned for human rights and operating under the auspices of elements of the Catholic Church. CEDHU referred to an incident where a young man who had been "formerly accused of belonging to the group AVC" was detained and held incommunicado. A witness to his kidnapping was detained at the same time for about 10 hours and was tortured during her detention.

The young man concerned was set free two days later: "after a ceremony of the surrender of arms to the Ministry of Defence and their re-incorporation into society. This incident was never clarified as those who surrendered the arms were supposedly members of Sol Rojo, a group criticised for its doubtful origins and objectives. As far as we know these people have not had problems since that time." CEDHU's silence on the applicant's claimed detention for four months in 1994 was truly deafening. This is because CEDHU advised: "Mrs Beatriz Jarrin is the mother of Arturo and is very active in the Comitč de Familiares en Contra de la Impunidad. "This Comitč, collaborates very closely with the CEDHU, but is not a member as such." The Tribunal member drew the inference, which one would think overwhelming, that if the applicant was politically detained or even, having regard to her history, detained for no reason for a longish period in 1994, CEDHU would have known about it and would have advised the Tribunal. CEDHU has certainly confirmed the murder of Arturo. The applicant and her husband gave evidence that the applicant was detained as alleged in 1994 and of other detentions. There were inconsistencies in the accounts given at various times of matters which the Tribunal thought were material and which the Tribunal member might reasonably have thought so. The more objective material gathered by the Tribunal implicitly contradicted this claim. Late in the piece, the applicant (contradicting an earlier account) said that she had been released because of the intervention of a court and with the assistance of a lawyer. She believed she was charged with some offence against the government and was due for trial six months later but instead fled the country. In addition to this matter of the supposed 1994 detention, the applicant claimed before the Tribunal that in October 1997 members of her and her brother's family had commenced legal action against the now ex-president Cordero alleging that he was involved in her brother's death. The applicant stated that Cordero remained a powerful figure though not formally occupying political office and, in effect, was a puppet-master in relation to the present centre-right government. She fears that if returned to Ecuador, Cordero would harm her as a revenge for the action of her family in suing him and because he feared exposure of his alleged role in relation to Arturo's death. The Tribunal member expressly directed herself in unimpeachable respects as to aspects of the law and practice. She adopted an extract from the United Nations High Commission as to refugees "Handbook on Procedures and Criteria for Determining Refugee Status", Geneva, 1992, which: "recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible should, unless there are good reasons, otherwise be given the benefit of the doubt. Given the particular problems of proof faced by applicants, a liberal attitude on the part of the decision-maker is called for in assessing refugee status." In the light of this, it is clear that the applicants fail, not only because the Tribunal disbelieved them, but because it disbelieved them to an extent that the Tribunal member obviously felt that there was no real chance that they were telling the truth. Before me, Mr Diab, the solicitor for the applicants - who, it should be recorded, conducted the applicants' case for them though their circumstances had not permitted them to put him in funds - raised a number of matters. In the first place, it was suggested that the Tribunal may have misunderstood some of the evidence about why the applicant may not have told CEDHU of her detention. I do not think that there is anything in this. The various references of the Tribunal to the matter show that the Tribunal member had a clear understanding of the nuances of what the applicant had said. That the Tribunal member failed expressly to refer to one matter does not show that her understanding of that matter was incomplete. In any case, if there was an error it would be a minor factual one, not touching the central proposition that it is scarcely credible that CEDHU would not know if the applicant had been arbitrarily detained for a lengthy period in 1994. The next argument was that the Tribunal member should have made inquiries in relation to the detention of the applicant in 1994 through official channels and as to the nature of the 1997 legal proceedings concerning Arturo's death. I accept for the purposes of this submission that there may well be cases in which it is appropriate for the Refugee Review Tribunal to use its considerable resources to seek to shed light on matters in relation to which it is not reasonable to expect of an applicant that he or she might do this. But no such circumstance appears here. It would be shutting one's eyes to realities not to understand that in Sydney there are large emigre communities, and networks of emigres, from various Latin-American countries, and that there are community organisations which lean to the left as well as those of different orientations. The applicants would appear to have been tertiary-educated. They made no request of the Tribunal for assistance. There is no reason to think that they could not have provided, had they thought it appropriate, some documentation or further information to support their claims. It was next submitted that the Tribunal had considered the matter entirely as one of possible persecution in relation to actual or perceived political opinion and had failed to realise that this might be a case of persecution on account of the applicants' membership of a particular social group. That social group is said to be those members of Arturo Jarrin's family who were attempting to establish the facts about his death. There is, in my view, nothing about such a collection of people which would have identified them as a particular social group within any ordinary meaning of those words, other than, as asserted, that in pursuing such activities they might face the risk of harm orchestrated by Senor Cordero. The only thing that might constitute them as "a particular social group" would be the fact of persecution and Applicant A v Minister for Immigration & Ethnic Affairs (1997) 142 ALR 331 is decisive authority that that is not enough. Finally, it was submitted that the Tribunal member, despite her stated recognition that one should not cast an onus on the applicants had, in fact, done so and had indeed cast a fairly high onus on them. The submission was that these were people, a member of whose family had been politically murdered and who had, along with other members of their family, been subjected to arbitrary detention for political reasons and gross maltreatment while imprisoned and that this had occurred not so long ago that it could fail to be of pressing concern to them. The mere fact of rejection of belief of the applicants' claims did not exhaust the obligation of the Tribunal to consider the prospect that they might nevertheless be telling the truth and, in the context of a fear of great harm, the Tribunal should have gone on to consider overall whether there was a real chance of their being persecuted for political reasons, notwithstanding that their account of matters had been rejected. Reliance was placed on what was said by six members of the High Court in Guo's case at 579-80. The members of the Court said: "It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred, or have or have not occurred for particular reasons in the past, is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution." However, the Court went on tho say: "In the present case, however, the tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the tribunal was not then bound to consider whether its findings might be wrong." The Tribunal did not doubt the pre-1994 sufferings of the family or their motivation, but it is clear that the Tribunal member considered that there had been a dramatic change in the political and human rights landscape in Ecuador and that, apart from what the possible events of 1994 might show, there was no currently real prospect of further persecution of this family on a political basis. In that sense, then, whether there was a real chance that Mrs Jarrin had been arbitrarily imprisoned and maltreated in 1994 became the crucial question. It is quite clear from the whole of the reasons of the Tribunal member that she considered that question and decisively negatived it. There was material available in relation to which it cannot be said that this approach by the Tribunal member was unreasonable. The final suggestion was that the harm feared by the family in relation to the institution of proceedings against Senor Cordero was harm on account of their imputed political opinion. I agree, with respect, with the reasoning of the Tribunal for the rejection of this argument. To a greater or lesser extent, powerful figures in any country, including our own, may from time to time be able to move governments to act in spiteful ways against citizens who have angered those powerful figures or whom the powerful figures fear. The same sorts of powerful figures may be able to induce governments to act with less than propriety in protecting such citizens when the powerful figures seek directly to do them some harm. Even if the reason for anger and fear on the part of the powerful figure has connotations which include the actual or imputed political opinions of such citizens, in my view, it cannot be said that the reason for such persecution is their political opinion, unless it is such political opinion which excites the hatred or fear of the powerful figure. In this case, that which might excite Cordero directly or indirectly to act against the Jarrin family would hardly be whether or not they shared in part or in whole the views of the deceased Arturo but that they very humanly sought to know the truth and bring his murderers to book. That is why Cordero might wish to persecute them. That is not for a reason of political opinion. It will be apparent that I have taken a broad view of the grounds that might be available to the applicants. Some of the criticisms which in the end I have negatived probably would not have sounded in available relief under the Migration Act in any event. Unless there is anything which, under Australian law, would be seriously adverse to Mrs Jarrin in connection with the proceedings that it would seem were instituted against her in 1994 (and that would be a matter that could be tolerably easily and discreetly established by the Australian government), it does seem to me that these are people who have suffered enormously and, if they can fit within some compassionate guidelines that permit them to stay here, I think there are few Australians who would want to drive them away. However the application must be dismissed and there is no reason in law why the applicants ought not be ordered to pay the costs of the proceedings. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate: Dated: 25 June 1998 Solicitor for the Applicant: John Maait & Co Counsel for the Respondent: F Bachman Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 June 1998 Date of Judgment: 25 June 1998