P38/2003 v Refugee Review Tribunal

REASONS FOR JUDGMENT Introduction 1 The applicant, who is a citizen of Colombia, seeks to set aside a decision of the Refugee Review Tribunal ('the Tribunal') affirming the refusal by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, to grant him a protection visa. He claimed the visa on the basis of fear of persecution by guerrilla groups in Colombia. He had challenged the decision of the Tribunal under the judicial review provisions of the Migration Act 1958 (Cth) as they stood prior to 2001, but that challenge was dismissed by Einfeld J on 27 January 1999. Subsequently, he commenced proceedings in the High Court as part of a class action and his application in that Court was remitted to this Court. In substance he complains of breaches of procedural fairness by the Tribunal in the hearing and determination of his application. 2 For the reasons that follow, none of the claimed breaches is made out and the application is dismissed with costs. Arrival in Australia and Application for a Protection Visa 3 The applicant, who is a citizen of Colombia, born on 7 September 1974, arrived in Australia on 26 July 1997. He was the holder of a visitor's visa, issued on 17 July 1997 at New York in the United States. On 20 October 1997, he lodged an application for a protection visa. The application was lodged on the basis that he had a well-founded fear of persecution arising from the persecution of his father by guerrillas in Colombia which was also directed to the applicant and members of his family. He obtained a bridging visa on 24 October 1997 to enable him to remain in Australia while his application was processed. His application disclosed that his parents and a brother live in Colombia. 4 In a handwritten statement in answer to questions in the application form about his reasons for leaving Colombia the applicant referred generally to the history of violence, corruption and guerrilla insurgency in that country and its impact upon him and his family. He explained that his father, who was an electrical engineer, had worked for the Colombian government for more than 20 years. He carried out public works contracts. From time to time he had to go to rural localities to oversee the construction of hospitals. At one stage members of a guerrilla group or groups told the applicant's father that he shouldn't work for the government. However the work had to continue. In mid 1995 guerrillas started asking his father to pay a special tax to support their war effort. He was threatened with harassment and the kidnapping of a family member if he did not comply. 5 The applicant himself was working at the International Airport as a translator at that time. On one occasion in 1995 he was confronted at a bus stop near his place of work by two men who told him that his father had sent him a message. They told the applicant that he and his family would have to support their war and pay their special tax. He did not have with him the amount of money they were asking for. They asked him to steal a walkie-talkie from the surveillance equipment at his place of work. He did so, but in the end paid the company for what he had taken. 6 By the end of the first or second month of 1996, according to the applicant's statement, he seemed to be just working for the guerrillas. Everyday they asked for more money. They threatened him by phone. They left messages with his mother. They started to visit him at his place of work or to wait for him on his way home. It was impossible for him to keep up his studies. 7 Following his final exams in a computer studies course at University in Bogota four or five men got out of a car in a quiet part of the main street and assaulted him. They told him that he had been sentenced to death, that he was worthless, that he should have paid more attention and that he had to do what he was told. He was taken to hospital by a police officer. The police officer told the applicant that he could provide security for him but he would have to pay for it. Ultimately, by arrangement with his father, the applicant left Colombia for New York in January 1997. He didn't ask for protection in the United States because of what he perceived as racism against Colombians. 8 Asked in the application form whether he thought the Colombian authorities would protect him if he went back, he said they wouldn't. He said the security forces and the government were too weak to deal with the total 'alarm and chaos' in the country. He said Colombia was living on the edge of a civil war. The Delegate's Decision Refusing a Protection Visa 9 The application for a protection visa was considered and refused by a delegate of the Minister on 28 November 1997. The delegate was prepared to find that the fact that the applicant's father had refused to stop working in his job with the Health Department and that both he and the applicant had resisted co-operating with the guerrillas by joining them or paying their taxes, supported a conclusion that the guerrillas were persecuting the applicant because of his imputed political opinion. The delegate said, however, that left wing guerrilla groups in Colombia were neither the legitimate government nor the illegitimate government in that country. A legitimate government existed with functioning police and a judicial apparatus and the guerrillas were not linked with it either directly or indirectly. The delegate said: 'Given that the State is not implicated in the feared persecution, the applicant's unwillingness to approach the authorities cannot be regarded as owing to fear of persecution. Also there cannot be said to be a failure of State protection where the State has not been given an opportunity to assist.' The delegate concluded that the State had not failed in its basic duty to protect the applicant and that he was able to avail himself of the State protection. 10 The delegate also dealt with the issue of relocation. He did not consider that there was any evidence to indicate that it would be unreasonable for the applicant to relocate in order to attempt to avoid the perceived risk. 11 By a letter dated 28 November 1997, the delegate advised the applicant of the outcome of his application. He pointed out that the bridging visa which he held allowed him to remain in Australia lawfully for a period of 28 days measured from the date upon which he was taken to have received the letter of advice, namely seven days after its date. He advised the applicant that he could apply to the Tribunal for review. He would have to apply within 28 days. The letter attached his 'decision record' which was, in effect, a statement of the delegate's reasons for decision. There was nowhere in the decision record a discrete list of documents referred to by the delegate in coming to his decision. He did however refer in the body of the text, in Part B of the reasons, to the following documents containing relevant country information: 1. United States Department Country Reports on Human Rights Practices 1996, Chapter on Colombia. 2. A release by Associated Press on 24 April 1997. These were the only such documents referred to in Part B of the delegate's reasons for decision. Application to the Tribunal and Correspondence from the Tribunal 12 On 24 December 1997, the applicant lodged an application for review of the delegate's decision with the Tribunal. In the course of that application, in a handwritten statement of his reasons for bringing it, he said: 'I disagree with the Department's decision because the facts of reason on which they based their decision are a contradiction of the real situation. My situation as I said before has sufficient gravity that not only the personal persecution stays no matter If my father and I are not persons who are legitimate power with the government or state; In Colombia it does not matter who you are; when it comes for Hostility; threats and killing.' (sic) 13 He referred to the guerrilla contacts with his father and then went on to say that the State of Colombia was powerless to act against private persecution. He also said: 'The information reports; that you have; about the general situation in Colombia seems to be very few. there Is a situation on which the state is about to show a total breakdown; and it has been powerless for my private situation; my father has Informed about the guerrilla harrassments for him and my persecution to prevent them. and the authorities has not presented any good on the problem.' (sic) 14 A Deputy Registrar of the Tribunal sent the applicant a letter dated 2 January 1998 acknowledging receipt of the application for review and informing him that the Tribunal had asked the department to send a copy of its documents about his case to the Tribunal. The letter went on: 'When we receive the Department's documents, the Tribunal will look at them along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately. This is known as "review on the papers". If the initial "review on the papers" does not result in a decision in your favour, you will be offered an opportunity to attend a hearing to give oral evidence to the Tribunal. Some hearings are conducted by video or telephone conference. Please note that you may send any documents or written evidence at any stage of the case.' The letter also said: 'You should not send any documents or written arguments which you have already given to the Tribunal or the Department about your refugee status application.' 15 In a further letter dated 7 August 1998, a Deputy Registrar again wrote to the applicant on behalf of the Tribunal stating, inter alia: 'The Tribunal has looked at all the papers relating to your application but it is not prepared to make a favourable decision on this information alone. You now have an opportunity to come to a hearing of the Tribunal to give oral evidence in support of your claims.' The letter set out time limits for communication with the Tribunal. It went on to say: 'You must send any new documents or written arguments to support your application to the Tribunal immediately. If they are not in English they must be translated into English by an accredited interpreter or recognised translation authority.' 16 A form called 'Response to Hearing Offer' was attached to the letter. The applicant filled it out and said that he wanted to call a witness, a person called Mary who could give a verbal statement of what she heard and had been informed about his situation in the years since he had been in Colombia. The Tribunal Hearing 17 The Tribunal held a hearing on 31 August 1998. The applicant was assisted by an interpreter but was otherwise unrepresented. There was some discussion at the outset about evidence that might be given by the applicant's witness, who was his cousin. The applicant was asked whether his cousin had any personal experience of his experiences. He said 'No, just regarding the death of an aunt'. Asked by the Tribunal member if she would be able to tell him anything more than the applicant could tell him, the applicant conceded that his cousin could not add anything. The Tribunal member then said: 'Her evidence will only be of value to you in this proceeding - and to me - if she were able to have some personal experience of what you went through in Colombia or, because she was there at the time, be able to provide actual eye witness of what happened to you. Seeing as that is not the case, I don't think I need to take evidence from her.' The applicant said he understood and the hearing then proceeded. 18 The applicant was sworn in and told the Tribunal member that when he first applied for a protection visa he had sent 'papers' to the Department. He had thought these would automatically be transferred to the Tribunal. He said to the member: 'When I was aware that I would be having this interview and I made an inquiry regarding where the papers were at the RRT regarding my case I realised that those papers that were forwarded to DIMA were not here amongst the papers of the RRT, and those papers got very important information regarding my case.' (sic) The applicant identified only one of the 'papers' which he described as a report he had made to police in 1995. He also referred to other papers he was awaiting which would help with his case. Among them he was expecting letters from his father's colleagues. He asked for an adjournment of 7 to 15 days to give him time to get the papers from DIMA and also the further papers from witnesses in Colombia. His request was refused by the Tribunal member who said that she would decide whether she needed to delay a decision in order to allow the applicant time to get the papers. The applicant also evidently produced human rights reports from the United Nations and a report he made to the police relating to the assault he had suffered at the hands of four or five men when he was leaving the university in 1996. When the Tribunal member asked to see the documents the applicant said that his cousin, who had been going to be his witness, had some of the reports but she had taken them with her. These were the United Nations' reports about human rights in Colombia. The Tribunal member then said: 'That's all right, because the tribunal has a whole library of reference material on Colombia, and we're quite aware of the violations of human rights and so on that happen there, so I don't need any other evidence on that point.' 19 In the course of the hearing the Tribunal member put to the applicant that the threats against him came principally because of his connection with his father. The applicant agreed that that was correct. The applicant explained to the Tribunal that his father worked for the Department of Health, on one of his jobs he went to a place called Mitu where there were hospitals to be erected. This was an area once considered normal, with very little guerrilla activity. That had changed and it was considered a red zone. When his father was working there in 1995 the guerrillas were trying to take over the town and to spread their ideology among the people. They tried to stop government activities in the town, even the hospital. They wanted electricians to assist with their cocaine producing activity. They proposed to the applicant's father and another engineer that they should help out. His father did not cooperate and was harassed by the guerrillas. He was reluctant to attend a meeting which they requested he have with their commander. Eventually he departed from Mitu where he had been working and went back to Bogota. In mid 1996 his father returned to the Mitu area. It was then considered a 'red area'. But according to the applicant it didn't matter where his father went. Wherever he went the guerrillas would find him because they knew his movements. 20 The Tribunal member asked why the guerrillas were so intent on finding his father. The applicant said it was because his father had rejected the proposal and fled the area where he had been working. 21 The applicant said he had come to the attention of the guerrillas because he was his father's son. He referred to the demands for money which guerrillas made to him in Bogota. He thought that he was the only person at the airport where he worked who had been the subject of these demands. He said the guerrillas were trying to prove to his father that they were serious in their intent and that they would do something to his father or to a member of his family. In December 1996, after the applicant had been assaulted by the group of four or five guerrillas near the university, his father was in Mitu. He had gone back to Mitu to see if he could find a quiet place where they could live in peace. 22 The applicant described the death of his aunt who lived in Villavicencio. He said to the Tribunal: 'She had a confrontation with the guerillas, which was a physical confrontation. They were armed and they went to the farm where she was. That's after we had left. This was two days after we left. The guerillas went to my aunt's place and she was so fed up with the situation we've been going through she had an argument with the guerillas and one of them shot her and killed her. He shot her six times.' 23 The Tribunal member referred to a letter which the applicant's father had sent to the Department dated 12 December 1997. In the course of the letter his father said: 'In relation with the State protection, It is logical that I have asked for their assistance, since the very beginning of the hostility and threats towards my son and I. If it is said that Authorities and Judicial apparatus and Its system is able to protect us, then why the hostility for more than 2 years? It does not matter the security sources, functioning Police and Judicial apparatus. they are unable to stop the threaten of Kidnapping and death of my son. no matter the methods of protection Its been reported and investigated but the hostility still remains.' (sic) Further: 'The situation and circumstances are worse than the ones exposed to the media and the Information that you receive from the US Department, It is different from the circumstances that we have to deal everyday. As I claimed before We have tried in anyway or alternative of changing the way it is. but It has been more than 2 black years. My family and I found ourselves obliged to look for my son's protection and his escape. My family and I, feel tranquillity. this way I can do quietly my work. now days I am working on the (Mitu) Hospital in Vaupez Department this is limit border and jungle of our country. Here the guerrilla commandant of the zone has ordered commerciants and contractors pay mercancy or financial contributions for the Revolutionary income I have not gone to any of these calls, and do not paying attention to their intimidations.' (sic) According to the father's letter he had been receiving blackmail threats and phone calls and that the guerrillas were after his son 'not to kidnap him but to killing him'. The Tribunal's Decision 24 In her findings and reasons for decision given on 9 September 1998, the Tribunal member accepted that the applicant's father had been working on a project in a remote location and had been pressured by guerrillas to assist them. She accepted that he had refused and had been made to pay money instead. He had tried to keep his workers in the remote location from deserting the project. The Tribunal member accepted that the guerrillas had been against the father for that reason. She also accepted that the father had fled to Bogota to escape the guerrillas. She was not satisfied that the rest of the applicant's evidence was credible because of the many inconsistencies and illogicalities it contained. 25 The Tribunal member gave the applicant the benefit of the doubt over his claims to have been a victim of extortion while he worked in Bogota. On the applicant's evidence the guerrillas wanted money and when he told them that he had little cash to give them, they demanded that he steal for them. There was nothing to show that the extortionists were unhappy with a status quo in which the applicant regularly gave them sums of money. This was regardless of their political background or his. The Tribunal member did not accept the applicant's claim that the extortionists were pursuing him because of his connection with his father. They knew where his father had been all the time. If they had wanted to harm the father they could have done so directly. The Tribunal member concluded that this pointed to ordinary extortion as the cause of the demands for money made on the applicant as an individual. The Tribunal member found it implausible that the guerrillas would take the trouble to trace all around the country an ordinary professional who had fled their attempts at extortion and the threats they had made against him over a project. 26 The Tribunal member referred to inconsistencies in the applicant's evidence about the course in computer studies which he attended in Bogota in 1996 and later evidence he gave of moving from town to town around the country during the same time period. His explanation that he could attend courses while travelling around was implausible and his other explanation that 'work and study do not matter when lives were in danger' did not address the inconsistency. 27 The Tribunal member did not accept the applicant's claim that his father had considered the Mitu location as a place to which he could retire safe from guerrilla harm. This was characterised as ludicrous. 28 The inconsistency between the applicant's claim that his father had never gone back to Mitu after 1996 and evidence in the father's letter that the father had been working at the same location in 1997 detracted greatly from the applicant's credibility. The Tribunal member observed, at the hearing, that the applicant was uneasy with the inconsistency. The Tribunal member said: 'His first explanation, that the father had been in Bogota working on the project, not in the remote location itself, is contradicted by the father's own statements which indicate by their phrasing that he was in the remote location, not Bogota.' The Tribunal member then said she had considered whether the applicant might fear persecution by reason of membership of a particular social group. While she accepted that a family could be considered a particular group under the Convention, she went on to say: 'However, given the evidence in the applicant's father's letter that "the family and I are living in tranquillity", I find little reason to consider that the family is being persecuted. Given this, I find that there is no basis [to] consider the applicant to be at risk of persecution on account of membership of a familial particular social group.' 29 As to the claim that the applicant's aunt had been killed by guerrillas, the Tribunal member regarded this as open to doubt given the lack of credibility in the rest of the applicant's evidence. Even had she been killed, it was implausible that it would have been because of her relationship to the applicant's father. The Tribunal member concluded: 'In sum, I find that the applicant's evidence is riddled with inconsistencies and implausibilities which significantly diminish the credibility of much of his evidence. For this reason, and the fact that those claims which I do accept relate to extortion that is not motivated by a Convention reason, I am not satisfied that the applicant has a well-founded fear of persecution under the Convention.' The Tribunal member affirmed the refusal of a protection visa to the applicant.