Londono-Castaneda v Minister For Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application by Jairo Londono-Castaneda ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 1 September 1998. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa. The 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"). 2 The applicant is a citizen of Colombia who arrived in Australia in 1997. On 24 July 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 17 November 1997 the application was refused by a delegate of the Minister. Both the delegate and the Tribunal considered the circumstances of the applicant and whether the applicant was 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; … (2) 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. 3 The substance of the applicant's case before the Tribunal was that he feared persecution if returned to Colombia because of his political opinion. The Tribunal found that the applicant's account of his past experiences in Colombia, to the extent they might give rise to a well founded fear of persecution were he to return, was not credible and did not accord with independent evidence. The Tribunal's reasons 4 The Tribunal commenced its reasons by considering the material presented by the applicant in written submissions to the Department and to the Tribunal, as well as oral evidence given before the Tribunal. The Tribunal noted that during 1997 the applicant had appointed an adviser to act as his agent who submitted various documents to the Department on the applicant's behalf. The Tribunal observed that there were numerous internal inconsistencies between the submissions provided by the applicant and those prepared on his behalf by the adviser. The Tribunal considered each version of events in turn. 5 The applicant's account in his initial application for a protection visa was that he had lived his whole life in Risaralda, Colombia and from 1992 to 1997 had run his own transport business in that area. He had had eleven years of schooling and had a command of written and spoken Spanish and English. The information said to support the application was summarised by the Tribunal as follows: · the applicant had started working with the Colombian Liberal Party in 1992; · his problems had begun in 1996 when "people had started to push [him] to go out of the community" because he was a community leader; · in 1996 his problems had peaked and he had asked for police protection but had been told that the police could not protect everyone; · if he were to return to Colombia he would be killed "because I'm the party of them"; · his enemies were "anti-government forces". 6 The statement prepared with the assistance of the applicant's adviser was summarised by the Tribunal as follows: · he had been working for the Liberal Party; · in 1996, when the election campaign had begun, he had decided to switch his loyalties to the Patriotic Union ("UP") (also known as the Communist Party) · in 1997 he had organised a large rally with a banner reading: "UP - Support Us", at which he had publicly spoken of his disenchantment with the Liberal Party; · in 1997 he had received a telephone call in which he had been threatened with death for supporting the UP. He had initially treated this as a joke; · he had begun noticing that municipal government officials had begun treating him with reserve and not helping him as they once would have because of his decision to switch parties; · in 1997 he had received a further death threat; his mother had become worried; he had received another telephoned message that he would be killed if within two months he had not stopped his UP work; graffiti signifying his death had been painted on a wall; · he had then decided to come to the police and ask for help; · his enemies might have been "the political leaders [I] helped in the past or persons from the Government or someone who bears resentment towards the UP". 7 The Tribunal noted that it had asked the applicant at the hearing why there was such a difference between the statement he had written and that written with the aid of an agent. The Tribunal put to the applicant that given his later evidence, the UP would have been uppermost in his mind and its omission from the first statement was curious. The applicant responded that the statement had been made in a rush and that he had only written down facts "about the people who were working with me". 8 The applicant gave evidence to the Tribunal that he had decided to leave the Liberal Party in 1996 for the UP because there had been little prospect of him being able to get a government job as there were many others ahead of him in the race for such positions. The Tribunal indicated it understood this evidence to mean that the reason for changing parties was that the applicant wanted a seat on the city council, more money and status. The Tribunal also asked the applicant who his enemies were and he responded that "we suspect it's the Government". The Tribunal put it to the applicant that his first statement indicated that his enemies were "anti-government" forces, to which he responded that his command of English was faulty and he had in fact been referring to the paramilitary forces commonly seen as agents of the Colombian Government. 9 The applicant told the Tribunal that in 1996 he had become the second-ranking UP candidate for the local council and had been hoping to get a seat in the next nationwide council elections, which he said were held in May 1998. When the Tribunal suggested that the local and municipal elections had in fact been held in October 1997, the applicant disagreed. 10 The Tribunal asked the applicant what he knew about the UP itself. The applicant was unable to name any of the party's leaders, stating that there were no leaders because everyone had been killed. The Tribunal noted that although the deaths of several prominent party members had been widely reported, the applicant was able to name only one presidential candidate that had been killed. He could not say when the UP had been founded or by whom. The applicant told the Tribunal that he did not have any knowledge of the UP because he had not really been involved with it, his priority being only to gain a council seat and its benefits. The Tribunal quotes the applicant as saying that: "My intention was to be an important Council member and I saw this as a possible [way to gain] access [to such a position] … I don't consider the party too much." 11 In the section of its reasons titled "Findings and Reasons" the Tribunal said it believed the applicant had fabricated significant aspects of some claims in order to ensure the success of his application for a protection visa. The Tribunal said that it did not accept the explanation given by the applicant at the hearing about why his first statement mentioned his Liberal Party membership only. The Tribunal said that it could not understand why the applicant had not stated at the outset that his claimed UP membership had caused death threats, given that