NAEY v Minister for Immigration & Multicultural & Indigenous Affairs

The Tribunal's findings 5 The Tribunal appeared to accept that the applicant was a credible witness and, having accepted his evidence proceeded to determine if it showed that there was a Convention reason for granting a protection visa.

Membership of the Liberal Party 6 In assessing the applicant's claim to fear harm in Colombia because of his membership of and involvement with the Liberal Party (including his association with his wife's uncle) the Tribunal observed, 'independent evidence available to the Tribunal suggests that identification with factions of the major parties, Liberals and Conservadores, is absolutely standard in Colombian political life'. 7 The Tribunal accepted that the FARC is noted for committing various atrocities, including 'massacres, kidnappings, rape, murder, and extortion' and that it is 'well armed and ruthless'. However it rejected the claim that association with the Liberal Party was (any longer) sufficient to lead to target individuals adversely. The Tribunal found that if the FARC had intended to target the applicant or his family on the basis of their political opposition it 'would have no hesitation in doing so'. It was not satisfied that the applicant's fear of harm for reason of his political opinion or membership of a particular social group (his family) is well founded.

8 The Tribunal considered whether by refusing to submit to the FARC's demands regarding his daughter the applicant might be persecuted for being politically opposed to them. The Tribunal was not satisfied that the applicant's fear in this regard was 'well founded'. The Tribunal considered independent country information to the effect that the FARC forcibly recruits juveniles and that around one third of its combatants are under 18 years of age. The Tribunal stated:

'Regarding the type of minor the guerrillas forcibly recruit, the independent evidence suggests that many of the young FARC recruits are plucked from the poor countryside where rebels control Colombia's cocaine and heroin trade. They are lured by the romance of the leftist cause, intrigued by the sense of adventure and enticed by the offer to escape poverty. The independent evidence goes on to note that FARC see no gain in pressuring educated urban teens.'

9 The Tribunal found that the applicant's daughter did not fit this profile having been born and raised in Bogota and being, by the applicant's own description, of the upper-middle class. The Tribunal accordingly found that, even accepting the applicant's evidence about his contact with FARC guerrillas, it could not be satisfied that,

'the FARC guerrillas had any genuine intention of forcibly recruiting the applicant's daughter because if they did so, they would have made more strenuous efforts to do so apart from one telephone call, and they would have actually carried out their threat. The Tribunal is satisfied that given the fact that the FARC did not carry out their threat suggests that it was just that - a threat.' (original emphasis)

10 The Tribunal went on to state that the family's absence of five years from Colombia would have been sufficient to dissipate any interest the FARC had in the applicant's daughter. When the applicant stated that his son was now of an age to be of interest to the FARC the Tribunal once again relied on the independent country information that indicated that the applicant's children do not fit the demographic targeted for recruitment as guerrillas.

Assault on the applicant's father-in-law 11 The Tribunal also rejected the applicant's claim arising from the FARC's assault on his father-in-law. The Tribunal found that the reason the applicant's father-in-law was assaulted, 'was not for one of the five Convention reasons, namely, race, religion, nationality, membership of a particular social group or political opinion. But rather because he stood in their way of acquiring land for the illegal production of coca and, thereby affecting their narcotics business… a person who… fears harm because he or she is a relative of a person who is targeted for a non-Convention reason does not fall within the grounds for persecution covered in the Convention. In this particular case the Tribunal is satisfied that the reason the applicant's father-in-law was targeted by the FARC [was] for criminal gain, and not for a Convention reason, and therefore under Section 91S, the Tribunal is required to disregard the applicant's fear of persecution arising from the harm undergone by his father-in-law. Pursuant to Section 91S of the Migration Act, the Tribunal cannot be satisfied that the applicant has a well founded fear of harm in the reasonably foreseeable future in Colombia in relation to his father-in-law and his father-in-law's land.' 12 Section 91S of the Migration Act 1958 (Cth) ('Migration Act') applies where an applicant claims to have a well-founded fear of persecution by reason of family membership. In such a case the Tribunal must disregard any persecution or any fear of persecution that the applicant or any other member of the family (alive or dead, present or former) has ever experienced where: (a) that persecution was not for a Convention reason; and (b) where it is reasonable to assume that the persecution or the fear would not exist if it were assumed that the persecution or fear of persecution referred to in (a) had never existed.

The grounds for review 13 The applicants identified the following four points of claim: '1. The Tribunal failed to address a claim raised by the evidence and material before it, that being whether the second applicant's father was killed because of motives that were at least partly political. 2. The Tribunal failed to take into account a relevant consideration, that being that criminal and political motives are not mutually exclusive. 3. Having erred in these ways the Tribunal erred further in purporting to apply s 91S Migration Act in assessing whether the applicants had a well founded fear of persecution for membership of a particular social group consisting of the second applicant's father's family. 4. The Tribunal failed to address a claim raised by the Tribunal's findings to the effect that threats made against the applicant's children were themselves persecutory of the applicant.' 14 The applicants say that these points indicate that the Tribunal made two jurisdictional errors. The first is that the Tribunal failed to address the possibility that the father-in-law's resistance to the FARC could be interpreted as attributable, at least in part, to his political opinion. In other words the Tribunal appeared to assume that resistance based on political opinion and resistance because of the criminal appropriation of his land are mutually exclusive. It is contended that these motivations are not mutually exclusive and it is possible that the father-in-law's resistance could be interpreted as partly motivated by resistance to the political aims of the FARC. Such an interpretation would put the persecution outside s 91S of the Act. The applicants submit that the Tribunal's failure to address this issue amounts to jurisdictional error. 15 The second error is said to be that the Tribunal didn't address the consequences of its own finding that the FARC made threats to abduct the applicants' daughter. It is submitted that these threats were themselves directly persecutory of the applicants.

The threats to abduct the applicants' daughter 16 I will deal firstly with the second alleged error which is, to my mind, the least contentious. The Tribunal found that FARC's threat to abduct the applicants' daughter was not genuine and that as such any fear that the family would suffer harm for this reason was not 'well founded'. The applicants submit that, notwithstanding the Tribunal's finding that the threat was not genuine the psychological harm to the applicants caused by even a hollow threat may itself amount to persecution, and that in failing to address this claim the Tribunal committed jurisdictional error. 17 It is trite to say that normal parents, threatened with the abduction of their child by a guerrilla organisation in circumstances where they subjectively believe that the threat might be carried out would be fearful. It is difficult not to sympathise with parents having a continuing fear for their children's safety irrespective of whether this fear is soundly based. Accepting for the moment however, that this psychological harm amounts to persecution, it is still necessary to meet the requirement that the fear be 'well founded'. 18 This requirement imports an objective element to the fear of persecution that must be established. If the applicants' argument were to succeed the distinction between objective and subjective fear would no longer apply. It would always be the case that an applicant who had been threatened with persecution could say of even patently hollow threats, 'It is an objective fact that I was genuinely in fear and that fear is itself persecution.' I cannot accept this submission. Although the Tribunal analysed the issue by assessing the probability of the daughter's abduction, rather than the effect of the threat upon the parents, to my mind the Tribunal's unreviewable finding that the fear of abduction was not objectively well founded is fatal to the applicant's claim.

The assault on the applicant's father-in-law 19 The Tribunal summarised its findings and conclusion on this issue as set out in paragraph [11] above. 20 The applicant alleges that the Tribunal, in finding that his father-in-law 'was targeted by the FARC for criminal gain, and not for a Convention reason' (emphasis added) failed to consider the possibility that the father-in-law was persecuted at least partly for political reasons and failed to apprehend that criminal and political motives could be mixed. The respondent submits that any such failure occurred because, on the facts, this possibility simply did not arise. In any event, the respondent points to the Tribunal's comment that the persecution of the applicant's father-in-law 'was not for one of the five Convention reasons' as indicating that the possibility was specifically considered and rejected by the Tribunal. 21 It is not disputed that the applicant's father-in-law was assaulted and consequently died of his injuries because he resisted the guerrillas taking over his land. The question that arises is whether the Tribunal considered the possibility that the FARC may have interpreted the father-in-law's resistance as springing at least in part from his political opinion. 22 The possible motives of the father-in-law could have included, separately or in combination, (a) the normal resistance of any property owner to someone illegally appropriating their land for any reason; (b) resistance to the appropriation of the land for growing drug crops; and (c) resistance to the appropriation of the land specifically by the FARC because of opposition to the political aims of that organisation. 23 The parties rightly do not dispute that the Tribunal's categorisation of the FARC's conduct in relation to the father-in-law as criminal does not preclude it also being, at least in part, politically motivated; see the comments of Kirby J in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 315 where his Honour commented that 'Human conduct is rarely, if ever, uni-dimensional'. See also V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355 at 367 per Hill J. 24 Similarly they have not disputed that a particular family or extended family is capable of forming a particular social group for purposes of the Convention; Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517. Unless, however, the assault on the father-in-law is attributable to a Convention reason, s 91S would prevent the Tribunal taking it into account. 25 It is well established that all substantive issues raised by the evidence before the Tribunal must be considered even if not an applicant does not articulate all such claims; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 at [24]. I am satisfied that the issue of the father-in-law's imputed political opinion was sufficiently raised by the material before the Tribunal as to impose an obligation on the Tribunal to consider this issue. 26 The only indication that the Tribunal did consider the issue of political opinion imputed to the father-in-law is in the context of the reference to the FARC's motivation quoted at [11] above. There are a number of ways that the Tribunal's comments on the point can be interpreted:

(a) the Tribunal dismissed the possibility of there being a Convention reason for the FARC harming the father-in-law without actually adverting to the possibility of there being an argument for imputed political opinion;

(b) the Tribunal, having considered the possibility that the FARC's motivation for harming the father-in-law might involve imputed political opinion, dismissed this possibility because it has found that the motivation was criminal gain. Implicit in such an interpretation is the proposition that the two motivations could not co-exist;

(c) the Tribunal made two express findings, namely that the FARC was not motivated by a Convention reason (imputed political opinion) and that it was motivated by criminal gain. 27 Both (a) and (b) above would involve an error on the part of the Tribunal; (c) would not. The issue is which is the correct interpretation. 28 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 the majority of the High Court quoted with approval observations of the Full Federal Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 that the judicial review of administrative decision making should not be carried out 'with an eye keenly attuned to the perception of error'. Their Honours (Brennan CJ, Toohey, McHugh and Gummow JJ) stated at 272 that the propositions enunciated there, 'recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. …any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.'

In the same case Kirby J (at 291) cautioned against, 'combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.'

29 It seems to me that the applicant in this case is inviting me to do exactly what the High Court has warned against. The respondent says that there is nothing to suggest that the Tribunal 'failed to appreciate that the FARC guerrillas could have had mixed motives; it simply found as a matter of fact that they did not.' In my opinion this is a fair interpretation of what the Tribunal said. To the extent that I am tempted by interpretations (a) and (b) (see [26] above) it is because I am sceptical that motivation of a highly political and ruthless group such as the FARC could ever be said to be devoid of a political motive. However to give vent to that scepticism would be to stray into the forbidden territory of merits review. For this reason I do not accept the applicant's allegation that the Tribunal erred in considering the implications of the FARC's treatment of his father-in-law.

30 In the absence of error on the part of the Tribunal it is not necessary for me to consider what role is left to s 474 of the Migration Act following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; see in particular the comments of Gyles J in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144 at [11] to [16]. 31 For these reasons the application must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Solicitor for the Respondent: Australian Government Solicitor