Ramirez v Minister for Immigration & Multicultural Affairs

Introduction 1 This is an appeal from the judgment of a judge of this Court (Whitlam J) dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") brought by the appellant under s 476 of the Migration Act 1958 (Cth) ("the Act"). The decision of the Tribunal, made on 24 February 1999, had affirmed a decision of the respondent's delegate to refuse the appellant a protection visa. 2 The criterion for the grant of a protection visa, under s 36 of the Act, is that the applicant for it be a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees as amended by the Refugees Protocol (compendiously, "the Convention"). 3 Article 1A(2) of the Convention provides that a refugee is 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 and being outside the country of his former habitual residence, is unable, or owing to such fear, is unwilling to return to it."

Background 4 The appellant, a Colombian national, was born in Anserma in the Department of Caldas on 20 August 1957. After completing his schooling he worked in a supermarket in Anserma, where he remained until 1994. In 1992 he bought a small farm, of 5,000 square metres, about ten minutes drive from Anserma. In 1994 he retired as a supermarket administrator in order to devote all his time to his farm. In November of that year, in circumstances we shall describe shortly, he left the farm and the Anserma area and moved to Pereira approximately 200 kilometres away. On 22 October 1995 he left Colombia for Australia, where he arrived on 24 October. 5 On 22 August 1996 the appellant applied for a protection visa. His application contained brief handwritten statements to the effect that he feared that the guerilla group Ejercito de Liberacion Nacional (ELN) would kill him if he returned to Colombia. They had threatened to kill him if he did not make regular payments to them. They had increased their demands to amounts which he could not afford, so they had attacked him on his farm and he feared further attacks. As part of his response to some of the questions in the standard form of visa application the appellant stated "More information will be provided later". He did provide some information in the form in answer to those questions but did not provide any further information before the delegate made his decision. No issue arises as to the validity of the application for review or as to the Tribunal's jurisdiction to review the delegate's decision. It has not been suggested that the visa application was not valid: cf Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421; Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560; but now Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906 (FC) and Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908. On 10 July 1997 the visa application was rejected on the basis that the appellant's fears related to criminal extortion rather than persecution for a Convention reason. 6 On 7 August 1997 the appellant applied to the Tribunal for review of the delegate's decision. A statutory declaration of the appellant, dated 22 September 1997, was later forwarded by his solicitors to the Tribunal together with other supporting documentation. The statutory declaration contained details of the appellant's background and claimed that he and his family had connections with the Liberal Party. The Liberal Party is the ruling party in Colombia and was said to be strongly opposed by the ELN. The appellant said that he was also involved with the communal action group of the district of Campo Alegre where his farm was. This group sought government assistance in community projects such as building roads and providing health services. He was treasurer of this group. The statutory declaration gave details of the ELN's demands for money from him and other farmers in the area. He and the others agreed to meet a request for money made in May 1994 which, in the appellant's case, was for 500,000 pesos. In oral evidence before the Tribunal, the appellant said that this initial approach was only in the nature of a request and was not accompanied by a threat. He and others thought that payment would buy them some peace. However about three months later, in July 1994, the guerillas made increased demands (700,000 pesos in his case) which the appellant and others decided not to pay. The appellant had also been asked by the guerillas to pay them an amount of 10 million pesos which the government had granted to the local group for the building of a clinic. The appellant refused, saying that he was unable to obtain access to these funds. What happened afterwards is described in the statutory declaration as follows: "24. With my neighbours of the communal action group we organised a delegation to go to Manizales with petitions from everyone in the town and ask for help and protection from the army. As a result of out [sic] petition, the army established its presence in the area including mounting a mobile military post, which patrolled the area day and night. They had confrontations with the guerillas in the neighbouring mountainous region and after this the guerilla's presence was not felt in the region. 25. But after a few weeks, the army left, and we were once again alone and unprotected. From that moment on the written threats started again. A few people around the area started receiving notes saying that we had to pay double the quota because our area supported the government. News about the notes spread but it was different from before when people had received individual demands about the amount we had to pay. The notes said that if we did not comply we would pay with out [sic] lives. 26. For us there then began a terrible time of fear. As strangers arrived in the region for the start of the harvest we suspected that they were guerillas. Because of this many friends from the region went to the cities Pereira, Medellin, Cali etc leaving their farms in the hands of caretakers. 27. At the end of August an unexpected violence was unleashed in the Anserma region. Several farmers were assassinated on their farms by the guerillas. The army returned to the region and there were several confrontations in the areas close to Campo Alegre. 28. The Communal Action Group had continued to meet but with less enthusiasm than before. People had started to withdraw from the group and to leave the district because they were frightened of the guerillas. I stopped going in around August 1994. 29. In October one night I heard a noise in the middle of the night and went out to investigate I did not find anyone. However the next day I found a note. This note said that I had to pay double the previous quota of 700,000 pesos. This was because I was an 'enemy'. I had collaborated with the army by asking them in to the area and I was a delegate of the Liberal Party. The note also said that I had to leave the farm because I was a member of the Liberal Party. The guerillas again demanded that I find the 10,000,000 pesos which had been the amount of the grant from the government. The note said that if I did not pay I would pay with my life. 30. As far as I know I was the only person in the communal action group who received an individual note. The other people in the region who received individual notes were the more wealthy owners of the haciendas." 7 The appellant went on to describe what may have been an attempt on his life which took place on 30 October 1994, two days after the receipt of this note. He was at his farm when a number of shots were fired in his direction. He reported the incident to the police who told him that the cartridges found at the farm indicated that the weapons were of the type used by the guerillas. Not long afterwards he received a telephone call telling him that the previous attempt was only designed to frighten him, and on the next occasion they would not miss. 8 In November 1994, as a result of these events, the appellant moved with his wife and son to Pereira where he worked as a kitchen assistant at a hotel. However about six months later he received another threatening letter, addressed to him at the Pereira Hotel. The statutory declaration described this letter, and the appellant's reaction to it, in the following terms: "37. In May 1995 the guerillas sent another threatening letter to me at the Hotel Melia. They said that I had to pay 500,000 pesos immediately or 1,000,000 in October. This letter again mentioned my being an enemy because of my membership of the Liberal Party, because I had brought in the army against them and I was refusing to give them the money from the action group. They said that I was not giving this money to them as I was collaborating with the government. The note then said that I was the principal enemy of theirs and that in the end all of their enemies would be finished off. 38. The tone of this note was different to all the others I had received. I felt that the demand for money was not the purpose and that now I was to be killed because of how the guerillas were interpreting my actions. I had always been a member of the Liberal party (the party in government), I had been an executive member of the communal action group which had called in the army against the guerillas, and I had refused to give them the money from the action group. This refusal in their eyes was a further and final indication of my allegiance with the government and opposition to them. 39. After receiving this note I was certain that they would kill me. I sent my son to study in Manizales and to stay at an uncle's house. I sent my wife to La Paila in the Vale dell Cuica. I applied for my visa and travelled to Australia, arriving on 24 October 1995." 9 On 31 August 1998 the appellant's solicitor forwarded a submission to the Tribunal together with other supporting material including a number of articles relating to the activities of the ELN. The submission contained an account of the appellant's background similar to that contained in the earlier statutory declaration. It referred to a number of reports, including a US State Department report for 1996, which described the ELN as exacting reprisals from people suspected of collaborating with the army. The submission contained the following statement: "Those suspected of collaboration with the army and those involved in certain municipal activities are particularly at risk of being targeted by the ELN. Mr Agudelo falls into both of these high risk categories. As Treasurer of the Community Action Group and a known member of the Liberal Party, he was repeatedly approached to obtain funds for the ELN and was threatened should he decline to do so. His eventual refusal to cooperate was explicitly interpreted as hostile towards the ELN and, given his known membership of the Liberal Party, as pro-government. More importantly, however, was his key role in bringing the army into the local area. This was seen by the ELN as direct evidence of his collaboration with the ruling political structure, leading to his classification as an 'enemy' whose eventual elimination was assured." The Proceedings before the Tribunal 10 On 10 September 1998 the appellant attended at the Tribunal where, with the assistance of an interpreter, he answered questions put to him by the Tribunal member dealing with his case. A transcript of the proceedings was included in the appeal book. The appellant told the Tribunal member that he feared the ELN would kill him if he returned to Colombia. When asked why, he said that it was because of his close involvement with the Liberal Party. He also gave further details of his involvement with the local community group and their request for protection from the army. In that regard he said that a delegation of twelve people, including himself, went to Manizales where they spoke to a commander in the army who promised to provide assistance. Some days later a military post was established in the area. While the army remained, which was for a period of about one month, there were no further problems. But after they left there was a resurgence of guerilla activity. He and other farmers received notes saying that they were collaborators with the army and would now have to pay double. The transcript records the following exchange: "Q253 OK The next question that I have, Mr Agudelo, relates to the reason why the guerrillas want you. See, as I said to you at the very beginning, people who are, the definition of a refugee requires someone to have a well founded fear for one of the conventional [sic] reasons. And in looking at your case, one could think that the reason why the guerrillas want you is to extort money from you? A(INTPRTR)No, if it were about money it might be different because the sums they asked me for are only small sums as far as money is concerned. Why they ask for more serious money, where they can obtain larger sums is from people with larger farms, but why they look for me is because I'm a representative of the voice of the people. What they can't forgive me is that I involved the army, that I betrayed them to the army. …... out of this I am now regarded as a collaborator." 11 On 3 December 1998 the Tribunal wrote to the appellant seeking further submissions as to whether it would be reasonable for him to relocate within Colombia. In relation to the appellant's claim that he feared persecution for reason of his political opinion, the Tribunal's letter quoted various items of "country information" upon which the appellant was invited to comment. These items contained passages commenting on the strength of the guerilla movement in Colombia, which country was said to be in a state of permanent crisis. The sources generally attributed a profit motive to the guerillas' activities. The Marxist-Leninist ideologues of the past, it was said, were now largely devoted to money-making activities including "kidnapping, extortion and taxes on cocaine production". Much of their income, it was said, was derived from extortion and protection rackets in the countryside. 12 On 15 December 1998 the appellant's solicitor wrote to the Tribunal setting out reasons why it was submitted that it would not be reasonable for the appellant to live anywhere in Colombia. The letter enclosed a further statutory declaration of the appellant, made on 15 December 1998, and a lengthy report from the US Department of State on human rights practices in Colombia in 1996. In his statutory declaration the appellant took issue with the proposition that the ELN guerillas were no longer politically motivated. He made the following observations: "7. As a Colombian, I feel that the guerilla groups have a good chance of overthrowing the government, as stated in page 1 of the RRT letter, they control 57% of the country's 1,071 municipalities. Also, the money they bring in through drugs trafficking, extortion, kidnapping, protection rackets and other activities is very large. I know from the RRT letter that they are better equipped than the Colombian Army itself. Given time, they will not even need to ask for support from the urban areas, whoever has the most guns, has the power. Who can argue with that? 8. The ultimate aim of these guerilla groups is to take over power from the government. Why else would they bother to sabotage the oil pipelines? While people say they are only 'narcoguerillas', once they have the money and have consolidated their power, I feel that they will overthrow the government much like the communists did in China in 1949. 9. I am a member of the Liberal Party and also one of the influential members of the Communal Action Group in my district, Campo Alegre. We had been successful in getting local development grants from the government to build a clinic. Our aim is clear: to limit ELN's efforts to recruit the local people in my district to the ELN's cause by getting the government to show support for the local people. The clinic is a way for the government to gain the support of the people. 10. I know that it is due to my political activities and opinion that the ELN has targeted me. They are angry I called in the army twice and also that I told them I could not hand over the money for the clinic to them. I did not have the money, the municipality had the money, but they did not believe me. 11. I would like to tell the Tribunal that I am one of the local civic leaders targeted by the ELN as what the US State Department said in their Country Report on Colombia 1997 on page 2 of the RRT letter."