Castro v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|1999-12-01|Before: Moore J

REASONS FOR JUDGMENT 1 This is an application by Raul Castro ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 13 July 1999. The applicant is a 35 year old citizen of Colombia who arrived in Australia on 25 July 1997. On 1 September 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department"). A criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"): see s 36 of the Migration Act 1958 (Cth)("the Act"). On 22 October 1997 a delegate of the Minister refused to grant a protection visa and on 27 October 1997 the applicant sought review of that decision by the Tribunal. After considering the circumstances of the applicant, the Tribunal affirmed the delegate's decision that the applicant was not a refugee. Art 1A(2) of the Convention contains, for present purposes, the definition of refugee. It provides:

"… the term 'refugee' shall apply to any person who; … owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it." 2 The applicant was not legally represented in these proceedings. However he was assisted by an adviser at the hearing before the Tribunal. The application for an order of review filed by the applicant in this Court appears also to have been prepared with the assistance of an adviser. That application identifies one ground as the basis for judicial review under the heading "error of law", namely that "the Tribunal's Member applied an authority of common law not applicable to the Applicant's case". I proceed on the basis that this amounts to an assertion of error of law within the meaning of the ground of review identified in s 476(1)(e) of the Act. 3 The substance of the applicant's case before the Tribunal was that he had suffered persecution, injustice, torture, mistreatment and human rights violations from both government and rebel forces in Colombia. He told the Tribunal that he feared persecution if returned to Colombia because of constant threats of harm he had been subjected to by guerilla forces in that country. The threats arose from his refusal to pay large sums of money and also from a perception held by the guerilla forces that he is a government sympathiser. The applicant also claimed fear of persecution at the hands of government agents by reason of their belief that he is a guerilla sympathiser. The applicant's adviser submitted to the Tribunal that these circumstances placed the applicant within the protection of the Refugee Convention because of his membership of a particular social group. The particular social group identified was that of "innocent persons accused of collaborating with the guerillas and the government forces and who are unable to defend themselves." The Tribunal noted that the applicant also implied in his evidence that he feared harm for reasons of political opinion. 4 What follows is a summary of the applicant's evidence considered by the Tribunal derived from his written submissions to the Department, oral evidence given at the Department interview, written submissions to the Tribunal, and oral evidence given at the Tribunal hearing.

The applicant's evidence as detailed by the Tribunal 5 The applicant comes from Cali, Colombia, and his father and sister continue to reside in that area of the country. The family previously lived in Acevedo Huila, and most of his relatives living in that area have money, houses and coffee and cattle farms. Guerilla forces came to members of his family many times and ordered them to pay large sums of money. His family did not agree with giving the fruits of their labour to those who did not work, nor did they wish to support a cause with which they did not agree. However initially the guerillas had sought smaller sums of money and the family had acceded to those demands. The sums of money demanded soon became larger and the family were eventually unable to pay the large amounts of money demanded. When they refused to pay, the guerillas threatened the applicant and his family with death. The applicant's mother, uncle and cousin have been assassinated and his father had been wounded in an assassination attempt. The applicant himself also narrowly escaped assassination on one occasion. 6 When the guerillas came to his family they would take all the food they could find and would ask the family to prepare food for them. If their demands were refused the guerillas would mistreat the family. The guerillas would also warn the family not to talk to government forces. However the government forces themselves would sometimes come to the home and ask for food. Often by the time the government forces arrived, the guerillas had already been and taken everything. The applicant and his family would then be accused of cooperating with the guerillas. The government forces branded the applicant a guerilla collaborator, and asked him for information about the guerillas that he did not have. When the family could not give such information they would be verbally abused and on one occasion were locked in a room in the house. 7 The applicant's father had been wounded at a time when the applicant was serving in the army as part of his compulsory military service. The applicant had asked the army for leave to attend to his father and this was refused. The army told him that his father was well and accused the applicant of lying. The applicant then attempted to escape from the army but was caught and imprisoned for 30 days. The applicant's mother had been assassinated in 1990 because she could not pay money to the rebel forces. This occurred at the family farm in Huila. When the Tribunal inquired whether the guerillas may have been interested in his mother for some other reason, the applicant stated that his mother had supported one of the two major traditional political parties in Colombia but to his knowledge had never expressed any particular political view in opposition to the guerillas. The applicant's cousin had been killed in an attack in 1992. 8 In 1994 the applicant and his uncle were attacked at a roadblock near their family farm. The applicant thought the roadblock had been set up by the guerillas for the purpose of catching him and his uncle because they had not paid the money demanded of them. When they turned around to avoid the roadblock the guerillas began shooting at them and in the course of the attack the applicant's uncle was killed but the applicant managed to escape. After this incident, the applicant moved with his father and sister to Cali, thinking it would be a safer place than Acevedo Huila. From that point however the applicant began to receive threats by telephone which continued up until his departure for Australia in 1997. About three months after moving to Cali, the applicant was shot at when walking alone one evening. The attackers were in a car and he was unable to identify them in the dark. The applicant believed the attackers were the same guerilla group who had threatened him in the past because after the shooting he received telephone calls indicating the guerillas knew he had escaped and threatening that "next time" he would not escape. These threats continued after the applicant tried to change his telephone number, and the caller, who knew the applicant's name, told him that because he did not pay the money previously demanded of him, they would come after him in "some other way". 9 The applicant had reported the extortion threats to the police but believed the police never acted on them because the situation was not unusual and was in fact common to many people in the area. When the Tribunal asked why the applicant had waited for two and a half months after his visa was issued before leaving the country, the applicant responded that he did not want the guerillas to know he was leaving and claimed he had in fact made a couple of false bookings before he actually left in order to keep the guerillas guessing about his movements. The applicant's father and sister had not yet considered leaving Colombia, although the telephone calls continue. He said that his father lives on his accumulated wealth and through buying and selling cars, and his sister and her husband are in a stable economic situation. Neither had been subjected to any attempts to kill them, but his sister had received telephone calls from the guerillas saying they were aware the applicant had escaped and would wait for him to return. 10 When asked whether the he knew of any other people who experienced similar problems with the guerillas the applicant said that he knew of many people who have farms in Acevedo Huila who had been threatened and assassinated. The guerillas had on occasions asked him to provide information believing that as a former member of the armed forces he may be able to infiltrate those forces. The applicant had steadfastly refused to do this for them. These demands were made around 1988 which was about five years after completion of his military service. When he refused to accede to the demands he was accused of not wanting to cooperate with the guerillas. 11 The applicant provided the Tribunal with a range of additional documentary material in support of his claims. The Tribunal also had before it independent country information on the political and military situation from a number of sources and on guerilla activity in Colombia. In relation to the issue of whether the applicant might be able to safely relocate to another part of Colombia, the applicant told the Tribunal that he believed there was no place in Colombia where a person could find safety and security or could live with dignity and peace.

The Tribunal's findings and reasons 12 The Tribunal found the applicant to be a credible witness and believed his evidence was both internally consistent and consistent with independent information about guerilla activity in Colombia. The Tribunal accepted the applicant's claims as credible and also accepted that he had a very strong subjective fear of returning to Colombia. The issue for the Tribunal to determine was whether the applicant's history and fear of returning to Colombia amounted to a fear of persecution for a Convention-related reason, in particular, for reasons of his membership of a particular social group. 13 The Tribunal noted that the particular social group posited by the applicant's adviser, "innocent persons accused of collaborating with the guerillas and the government forces and who are unable to defend themselves", was at least partly defined by the persecution itself. That is, a characteristic uniting the group was the persecutory conduct of being "accused of collaborating with the guerillas and government forces". The Tribunal cited passages from both Dawson and McHugh JJ in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 255 as settled authority for the proposition that the characteristic that unites a particular social group cannot normally be a common fear of persecution. The Tribunal noted that in certain circumstances a particular social group may exist notwithstanding that it has persecution as a common element. The issue to be resolved however is whether there is something, apart from the persecution itself, which makes the group cognisable within the relevant society. The question of whether a particular social group shares a unifying characteristic that makes them cognisable in society should be considered in isolation from whether its members share a common fear of persecution. The Tribunal referred to the Full Federal Court authority in Minister for Immigration and Multicultural Affairs v Zamora (1998) 51 ALD 1, also to this effect. 14 The Tribunal decided that the applicant was not a member of a particular social group which shares a characteristic in common other than the persecution feared at the hands of the guerillas. On the basis of the applicant's evidence and the independent information, it was clear, in the Tribunal's view, that many people in the areas of Acevedo Huila and Cali had been subjected to similar treatment as that suffered by the applicant. The Tribunal said: "The people who were targeted were targeted simply because they lived in the areas in which the guerillas were active and they were in a position to provide money, food and other necessities to the guerillas. There was no other common unifying element which set those who were harmed by the guerillas apart from the rest of society. Indeed it appears that virtually everyone in the whole of the society in the areas in which the applicant lived was equally likely to be targeted by the guerillas. The Tribunal finds that the applicant was not targeted by the guerillas for reasons of his membership of any particular social group within the meaning of the Convention." 15 In relation to the applicant's claims of persecution at the hands of government forces, the Tribunal was unable to find any evidence of persecution other that the fact the applicant had been branded a "traitor" by government forces because he had not been able to provide information about the guerillas. The Tribunal concluded that this could not be characterised as persecution. In relation to the possibility that the applicant had been subject to persecution by reason of his political opinion, the Tribunal noted that the applicant had not expressly claimed this ground. The Tribunal further observed that the fact an agent of harm has opposing political beliefs does not by itself render the persecution as being for reasons of political opinion, if what the agent of harm is seeking to gain is personal advantage or revenge. The Tribunal concluded it was clear that the extortion the applicant was subjected to was not directed at him because of his political opinion. The Tribunal said: "The Tribunal finds that the motivation of the guerillas in extorting money from the applicant and people in the region was to gain control of the region and to raise money to finance their efforts in this regard. The evidence before the Tribunal leads it to find that the harm which the applicant suffered following his failure to make payments required by the guerillas, including the shooting incident in Cali, was intended to punish him for not making the required payments. The motivation was revenge or punishment and has nothing to do with the applicant's political opinion." The Tribunal further noted: "However, there is no evidence to suggest that the applicant is a member of a persecuted group in Colombia. There is nothing in the applicant's evidence that suggests that he, as an individual or as a member of any particular social group, has been or is being targeted for reasons of his actual or imputed political opinion or any other reason." 16 In relation to the applicant's imprisonment for 30 days at the hands of the army, the Tribunal held there was no evidence to suggest the punishment suffered by the applicant was not within the bounds of the relevant law and, in any event, the incident did not give rise to a well-founded fear of persecution in Colombia now or in the foreseeable future. In conclusion, the Tribunal stated that despite the applicant's strong subjective fear of returning to Colombia, there was no real chance of him being persecuted for reasons of political opinion, membership of a particular social group, or for any other Convention reason if returned to that country.

Conclusion 17 As I noted earlier, the applicant is not represented. The only ground of appeal identified in the notice of appeal is, in terms, not a ground identified in s 476. Even if treated as raising an allegation of error of law, I can discern no legal error in the approach of the Tribunal. Given its acceptance of the applicant's account of his past experiences, the Tribunal correctly focused on the issue of whether the risk of harm to which the applicant might be exposed were he to return to Colombia, would be by reason of membership of a particular social group or political opinion. Its consideration of these matters is, in my opinion, unexceptionable. This is not a case where the motives of the guerillas in extorting money was or may have been multifaceted: see Chokov v Minister for Immigration and Multicultural Affairs [1999] FCA 823 and Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134. 18 In a letter declining legal aid which the applicant handed up in the proceedings, a solicitor from the Legal Aid Commission of New South Wales suggested the Tribunal may have failed to comply with s 430(1)(b) in that it gave no reasons why there is no evidence which suggests that there is a real chance in the reasonably foreseeable future (of persecution). However the passage of the Tribunal's decision referred to by the solicitor speaks of persecution for reasons of political opinion, membership of a particular social group or for any other Convention reason and is, in terms, directly linked to the evidence that had been given by the applicant which had been set out and analysed earlier by the Tribunal in its decision. There is, in my opinion, no failure to comply with s 430(1)(b). 19 I dismiss the application with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Counsel for the Applicant: The applicant appeared in person.

Solicitor/Advocate for the Respondent: Mr A Markus, Australian Government Solicitor

Date of Hearing: 11 November 1999

Date of Judgment: 1 December 1999

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