Hernandez v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-06-14|Before: Beaumont J, Hernandez P

INTRODUCTION 1 This is an application under the Migration Act 1958 (Cth) ("the Act") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 28 March 2001. That decision affirmed a decision made by a delegate of the Minister not to grant the applicant a protection visa. 2 The applicant, a citizen of Colombia, arrived in Australia on 28 February 1999. On 15 January 2001, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Act. He claimed to fear persecution in Colombia on the basis that his father, a landowner and businessman in Colombia, had been the target of attempts to extort money by a guerilla organisation, known as the 53rd Front of FARC (Revolutionary Armed Forces of Colombia) ("FARC"). 3 The applicant had previously had the benefit of some legal assistance from a solicitor in drafting an amended application. However, at the hearing, the applicant was unrepresented, and appeared with the assistance of an interpreter. 4 By his amended application, the applicant stated the grounds of his claim for judicial review as follows: "1. The applicant is not in agreement with the decision of the Tribunal because it is only by the grace of God that the applicant and his family have not suffered so far. It is easy to say from outside Colombia that there is safety but the fact is that there is a lot of danger in that country. 2. The documents provided to the Tribunal clearly show that the applicant's father faced a risk of persecution for political reasons. The Anti-Kidnap Group is the highest authority on these matters and it would not have issued the documents if it had not investigated the case and come to the firm conclusion that the applicant's father had a fear of persecution because of political opposition to the FARC. 3. The Tribunal should have investigated the matter further through the website of the Anti-Kidnap Group which would show that the applicant's fears are well-founded". 5 The applicant did not file written submissions but made some oral submissions during the hearing, which essentially repeated the claims made in the amended application. The respondent made some oral submissions based on written submissions which had previously been provided to the Court.

THE TRIBUNAL'S REASONS 6 The Tribunal affirmed the decision not to grant a protection visa on the basis that it was not satisfied that "the applicant's claim to fear harm now because of his father's repeated refusal to pay extortion demanded by the FARC is true". It found the applicant's evidence to be unsatisfactory and the applicant's claims to be implausible. The oral evidence given by the applicant was found to be "evasive", "irrelevant" or "extremely confused". Some aspects of the applicant's evidence was inconsistent - for example, the evidence about the applicant's father's recent or current business activities. 7 The Tribunal further doubted the applicant's credibility because he increasingly tried to attribute the guerilla's interest in his father to his father's politics. The Tribunal found claims that the applicant's father was targeted because he did not agree with the guerillas' ideals or with extortion and that the applicant's father is a "political actor" to be vague and unsubstantiated. In any event, the Tribunal did not accept that the applicant's father's involvement in politics would have been a cause of interest in him by the FARC. 8 The Tribunal also found documentation submitted by the applicant to be self-serving. The documents either came from the applicant's father or were based on what his father had told others. They contained inconsistencies and misrepresentations and were found to be "remarkably vague". 9 The Tribunal further noted that the applicant's father's first approach to the authorities was not until 20 December 2000, less than two weeks after the applicant was detained by the Immigration Department in Australia, and the day before the applicant lodged his protection visa application. It found this strongly indicated that the approach was purely for the purpose of obtaining documentation to support the applicant's protection visa application. The proposition that the applicant's father had been able to ignore or resist the FARC's demands with impunity for eight or nine years was, in light of independent information about the FARC, "completely implausible". 10 The Tribunal also found that even if the applicant's claims were true, it would not follow that the applicant had a well-founded fear of suffering harm from the FARC. No steps had ever been taken by the FARC to enforce its demands - no harm had befallen the applicant, the applicant's father or his family. No attempt (or anything that could even be a suspected attempt) had ever been made to carry out any of the threats against the applicant's family. No threats had been made to the applicant's father's business interests, and there was no evidence linking the death of the applicant's godfather to the extortion attempts or even to the FARC. 11 Moreover, the applicant's fear of suffering harm from the FARC had not been sufficient to prevent him from returning to Colombia from the United States of America in 1998 and to live there, without incident, for three months. The Tribunal found that, even if this level of safety had been achieved at the cost of living a quiet and careful life, this was not a burden which amounted to persecution within the meaning of the Convention. It was not unreasonable, if the applicant feared harm from the FARC and guerillas as claimed, to expect the applicant to settle elsewhere in Colombia, either in Bogota away from the family home or elsewhere in the country. The Tribunal rejected the applicant's assertions that the "guerillas are everywhere" and "have the technology and resources to find him" as the evidence did not support them. There was no evidence that the FARC is trying to find the applicant or that the applicant's whereabouts has been, or is, of interest to the guerillas. 12 As it did not accept that the applicant had a well-founded fear of persecution, the Tribunal did not find it necessary to consider submissions that the applicant's claim was within the Convention grounds.

CONCLUSIONS ON THE APPLICATION 13 The Tribunal did not accept the principal factual elements of the applicant's claims. Accordingly, in my view, there was no basis upon which it could have been satisfied that he had a well-founded fear of persecution if required to return to Colombia. As has been noted, the Tribunal gave full reasons for reaching this conclusion, which centred on the credibility of the applicant, the unconvincing nature of his documentary material, and a lack of consistency between some elements of his claims and the independent country information. I agree with the submission of counsel for the Minister that no reviewable error appears to have attended the formation of these views (see Bains v Minister for Immigration and Multicultural Affairs [2001] FCA 403 par 17). 14 In any event, on the applicant's own evidence, neither he nor any of his family members had actually been harmed: they were apparently not prevented from pursuing business or social interests in Bogota; and the applicant's parents had visited him in the United States of America and then voluntarily moved to Colombia. In the light of these factors it was open to the Tribunal, as the Minister submitted, to conclude that, even if the applicant's evidence were accepted, he would not have a well-founded fear of suffering harm which would amount to persecution. 15 The Tribunal's discussion of relocation is, in effect, a further alternative (it arises if the applicant's evidence were accepted and if returning to live with his family would involve a real chance of persecution). To the extent that the issue arises, the Tribunal, in my opinion, properly applied the test articulated in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. 16 Turning to the specific grounds mentioned in the amended application, no basis for judicial review emerges. Ground 1 seeks to take issue with a purely factual inference drawn by, and open to, the Tribunal. Ground 2 takes issue with the Tribunal's reasons for not attaching weight to the documents provided by the applicant. Both of these points are questions of fact where the Tribunal formed a conclusion on the basis of probative material. No reviewable error would have occurred even if those conclusions were factually incorrect. Ground 3 alleges that the Tribunal erred by failing to make a further investigation. Whilst ss 424(1) and 427(1)(d) of the Act empower the Tribunal to make such inquiries, there is no implied duty to do so. Nor does a failure to consider whether to make such inquiries constitute a reviewable error: Ahmed v Minister for Immigration and Multicultural Affairs [2001] FCA 506at pars 35 - 39. 17 The application should be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate: Dated: 14 June 2001 Solicitor for the Applicant: The applicant appeared in person

Solicitor for the Respondent: Blake Dawson Waldron

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