Applicant S262 of 2003 v Minister for Immigration, Multicultural and Indigenous Affairs

Introduction 1 This is an appeal from a decision of Federal Magistrate Nicholls, given on 13 July 2005, dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 8 May 2001. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.

Background 2 The appellant is a citizen of Colombia whose claim centres around a fear of harm from the Fourth Front of the Revolutionary Armed Forces of Colombia (FARC), one of the two main guerrilla groups active in Colombia. The appellant claims that on three occasions in 1998, members of FARC came to his house and sought to extort money from him and threatened his life. He claims that the guerrilla group targeted him because he and a friend conducted a profitable business selling the coffee produced on his father's farm. He also claims that the guerrilla group indicated that their threats against him and attempts of extortion were because he was a member of the Conservative Party. That claim is not pursued on the appeal. 3 The appellant claims that when he reported these threats to the authorities, they refused to provide protection. Their view was that the guerrilla group was too large for the police to be able to provide enough officers to protect the appellant and his family. 4 In his statement in support of his application for review, the appellant stated that: "…I belong to a particular social group, those who are victims of 'guerrilla' groups; the Columbian authorities attribute special characteristics to victims of guerrilla groups, such that we could be said to be a cognisable group in society. Our most relevant feature is that the authorities are unable to give us protection, given the amount of violence we are subjected to. … I am also being persecuted because I belong to a particular political group. I was an active member of the Conservative Party and 'guerrilla' groups particularly target individuals who belong to this political party, which supports the government. My life was threatened and the Colombian State is not able to protect me, it is powerless with respect to 'guerrilla groups' violence, evidence of this are the day to day killings in the hands of guerrilla groups, being for political or other reasons. … As Justice McHugh said in A& B v MIEA, judgment that has been cited in the Department of Immigration's decision at page 3, I suffer intentional discrimination as I belong to a particular social group, those who are the victims of guerrilla groups, and that discrimination is translated into persecution and constant threats, and the State cannot offer me protection. Therefore, my case falls within the object of the Convention, which is 'to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality'. It is clear that the Colombian government is not implicated in the persecution of individuals targeted by guerrillas… nor that it condones this kind of violence. In my case, when the police said that they could not protect me, they were recognising that I belong to a social group, those who are victims of guerrilla groups, and the authorities cannot effectively protect any of them, including myself. I was denied protection from the authorities for lack of resources and because I am considered a member of a social group to whom effective State protection is unavailable. The mechanisms for protection are there, but they are not sufficient. The issue of relocation is not a solution in my case, I will be persecuted anywhere I go within the country, the guerrilla groups are an umbrella organisation that has members all over the country." (emphasis added) 5 In its reasons for decision, the Tribunal noted that the appellant claims to have been a member of the Conservative Party for many years, but that FARC only made threats against him after he established his coffee business in January 1998. The Tribunal did not accept the appellant's claim to have been threatened by reason of his involvement with the Conservative Party. 6 The Tribunal found that the appellant was targeted because the coffee business was a cash business and the guerrillas believed he had cash to meet their demands. 7 The Tribunal referred to the appellant's claim in the statement accompanying his application for review, which states that the appellant is a member of a particular social group, being 'victims of guerrilla groups'. 8 The Tribunal came to the view that the suggested group uses the persecution feared, ie victimisation by guerrillas, to define the group, and that this was not permissible; reference was made to Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 ("Applicant A") per Dawson J at 242, McHugh J at 263-4 and Gummow J at 285-6. 9 The Tribunal observed that there was nothing in the evidence to suggest that the appellant feared persecution by reason of his membership of any other "particular social group". The Tribunal did not accept that the persecution which the appellant fears, being "extortion by guerrillas" bears the requisite connection with one of the five Convention reasons. The Tribunal considered the appellant was targeted because he had a lot of money, so was perceived by guerrillas as a "suitable victim", citing Burchett J, with whom O'Loughlin and RD Nicholson JJ agreed, in Ram vMinister for Immigration and Ethnic Affairs (1995) 57 FCR 565 ("Ram")at 569. 10 Furthermore, the Tribunal observed that even if it were satisfied that the appellant had a well founded fear of persecution in his local area, it considered he could relocate to somewhere else in Colombia. The Tribunal noted that the appellant had done so in September 1998 and remained in this new location until February 1999, when he left the country. The Tribunal concluded that it would be reasonable in all the circumstances to expect the appellant to relocate elsewhere in Columbia, as there were no language or other practical barriers preventing the appellant from doing so, if he considered he could not continue to live safely in his local area: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440 - 443. 11 The Tribunal concluded that the appellant did not have a well founded fear of persecution for a Convention reason.