Trujillo v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicants in this matter are a husband and wife and their three children. The parents are Colombian nationals. The applicant daughters were born in 1988 and 1991 in the USA and are US citizens. The applicant son was born in Cali in 1996 and is a Colombian citizen. The family was issued with Australian visas on 30 October 1998 and left Colombia legally about six weeks later. They arrived in Australia on 10 December 1998. On 24 February 1999, they lodged an application for protection visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act") on the basis that they were refugees within the meaning of Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. 2 On 3 April 2001, the Refugee Review Tribunal ("the RRT") affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant protection visas. An application for judicial review of that decision was made to this Court. 3 The applicants claim that they have a well-founded fear of being persecuted for reasons of religion if returned to Colombia because they are members of a religious group known as Eklesia. The parents and children were closely connected with the Eklesia community in Colombia. They attended meetings and raised funds, and the applicant daughters attended a school conducted by that community. The applicants claim that there was persecution of the Eklesia community which started in the late 1980s and lead to the 1995 killing of a church leader ("Pastor R") who had spoken out against drug trafficking. 4 Apart from their membership and involvement with Eklesia, the applicants also claim to fear harm on the basis that their two daughters are American citizens. The RRT accepted that the applicants are evangelical Christians and that they were actively involved in the Eklesia community until they came to Australia in December 1998. 5 In its findings and reasons, the RRT expressed concerns about the credibility of some of the applicant parents' evidence because of changes over time and perceived exaggerations and falsities. However, the RRT accepted that the brother of the applicant husband, who was a member of Eklesia, was killed in February 1989 and that the family moved around from then until they went to the USA for a second time in September 1990. The applicants returned to Colombia in April 1991 and the RRT concluded that this indicated that they did not have a subjective fear of persecution at that time. 6 The RRT did not accept that the Eklesia community was seriously threatened for years. It accepted that a prominent pastor of the church, Pastor R, was killed in December 1995 and that, prior to his death, he was a high profile and outspoken church leader and was instrumental in 1995 in trying to unify Christians against drug trafficking. The RRT accepted that the applicants attended mass prayer meetings organised by Pastor R in 1995 against drugs and that the replacement pastor and his wife may have been threatened because they had associations with the USA and that they left Cali. However, the RRT pointed out that another pastor took over in 1997 and is still in Cali. 7 The RRT accepted that two incidents occurred which involved the applicant daughters and the parents respectively. The first was when a school group, which included the applicant daughters, was threatened by unknown armed men at a sports ground in early 1997. However, the RRT was not satisfied that the incident was so serious as to amount to persecution within the Convention meaning. It referred to the fact that nothing had happened to the group or the applicant daughters either then or subsequently, and that the daughters continued to attend the Eklesia school until they came to Australia in late 1998. The RRT accepted that the armed men in 1997 told the school group that Americans must leave the country. However, it was not satisfied that this was directed at the applicant daughters because there was no evidence to suggest that the armed men knew where the daughters were born, that they had any interest in finding out where they were born, or that there were any informants in the school. 8 A second incident was accepted by the RRT as having occurred at the end of September or early October 1998 when two unknown men, whom the RRT appears to have accepted may have been police, said to the applicant parents, as they dropped their children at the Eklesia school, that they would be the next to be killed. The RRT did not consider that the threat was so serious as to amount to persecution within the Convention meaning or that the parents were threatened for a Convention reason. It took the view that it was a "one-off opportunistic general remark, rather than a serious threat" and that no reason was given for the threat. There was no evidence to this effect. The applicant husband claimed that this incident triggered the family's departure from Colombia. However, the RRT decided that there was no evidence that any action was taken by the applicants in respect of the threat, that the daughters were not withdrawn from the school and that the applicants continued their involvement with Eklesia and nothing happened to them in the short period before they left for Australia. The RRT did not accept that the applicants were threatened because they were Colombian Christians or because they belonged to Eklesia. The RRT said that most of the country was Christian and Eklesia was the largest evangelical group in the country and that it has been well established for many years. The RRT relied on independent country information which, it said, did not suggest that ordinary people, as distinct from religious personnel, practising their religion in cities like Cali, were at risk of harm. 9 It is clear from the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 22 that factual error by the RRT will not provide a basis for review and an erroneous finding or a mistaken conclusion will not constitute an error of law. However, at that reference, the principal judgment reads: " … If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out."