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[2001] FCA 1452
Federal Court of Australia
2001-10-18
Tamberlin J
Original judgment source is linked above.
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."
Reasoning 10 The concept of "persecution" was recently reconsidered by McHugh J in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585. Although his Honour dissented in that case, his observations are pertinent to the present case. His Honour observed at [65] that: "Framing an exhaustive definition of persecution for the purpose of the Convention is probably impossible. Ordinarily, however, given the rationale of the Convention, persecution for that purpose is: · unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason · which constitutes an interference with the basic human rights or dignity of that person or the persons in the group · which the country of nationality authorises or does not stop, and · which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned." 11 At [99] his Honour said: "… The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person." 12 These principles were recently applied by Kenny J in Roguinski v Minister for Immigration and Multicultural Affairs [2001] FCA 1327 at [25] and [26]. The judgment in that case contains a helpful review of recent authorities on the meaning of "persecution" for the purposes of the Refugee Convention. 13 Although the threat made in 1998 in the present case involved a single incident, it was in terms a threat which, taken in context, was of such a serious or oppressive nature that the applicants could not be expected to "tolerate" it. In my view, the decision of the RRT discloses an error of law in relation to its consideration of the September/October 1998 incident at the Eklesia school. The RRT accepted that there had been an earlier threat to an Eklesia school group, which included the applicant daughters, by armed men in early 1997. It also accepted that the later incident in September/early October 1998 occurred and that a threat was made to kill the applicant parents when they were dropping their children at the Eklesia school. The RRT proceeded to its conclusion on this aspect of the applicants' case on the basis that the September/October 1998 threat was made by police. However, notwithstanding these considerations, it found that neither threat was "so serious" as to amount to "persecution" within the meaning of the Convention. The decision states that the evidence "suggests that it was one-off opportunistic general remark". This is not a finding of fact in any proper terms nor is there any proper basis in the evidence or inference given for this conclusion. It is simply a suggestion or impression. Indeed, having regard to the context and history of the Eklesia church, whose religious tenets were publicly expressed against drug trafficking, such a view indicates, in my view, a misunderstanding of the expression "persecution" in the Convention. A death threat made to parents, in the presence of their children, at a religious school, made by police, is clearly a serious matter capable of amounting to persecution. There is no reason to believe such threatening conduct would not be repeated if the applicants were returned to Colombia. To use the language of McHugh J in Ibrahim, the decision of the applicant parents to refuse to return to Colombia is an "understandable choice". 14 It is apparent that the applicant parents in fact took the threat seriously because, within about two weeks of the 1998 threat, their passports were renewed and, within about four weeks, they had obtained Australian visas. They arrived in Australia in December 1998. This strongly indicates an understanding of the threat by the applicants as being sufficiently serious to cause them to leave their country. It is wrong to suggest that their behaviour after the September/October 1998 threat was inconsistent with the threat having been taken seriously or with the existence of a real threat. Their conduct is inconsistent with the RRT's suggestion that the threat was simply an "one-off opportunistic general remark". It clearly was not understood by the applicants as such. There is no evidence for this important conclusion of the RRT and the threat itself in terms has an imminence and context which must be taken seriously. I say "imminence" because the threat was to kill them "next". The above view is reinforced by the fact that threats directed at Americans had been previously made by armed men to the Eklesia school group. The then pastor's wife was an American and, according to the applicant wife, she fled along with her husband and an American Eklesia missionary at the end of 1997 in fear of her life after they were directly threatened. The end of 1997 was little more than twelve months after Pastor R, a prominent church figure, had been assassinated in December 1995. 15 There is no suggestion in the evidence or the decision of any other reason for the 1997 and 1998 threatening incidents except the perceived nexus with the Eklesia church. The fact is that the Eklesia church had been associated with teachings against the Cali drug group in a prominent and public manner. No consideration is given in the decision to the issue whether the perceived anti-drug trafficking beliefs of the church which operated the school could be regarded as a religious belief within the Convention definition. 16 Although generalised country information did not suggest that ordinary people practising their religion were at risk of harm, this "absence of suggestion" is not to be taken as a substitute for proper and specific conclusions from specific accepted facts. 17 In the particular circumstances of this case, which involves a specific accepted threat in serious terms by police officers made to parents at the Eklesia church school, I consider that the RRT has erred in law in reaching its conclusion that there was no real chance of harm sufficient to constitute "persecution" within the Convention if the applicants are sent back to Colombia. The conclusion indicates a misunderstanding of what in law can amount to "persecution". Moreover, the accepted facts demonstrate that there was an association between the Eklesia church and the threats. 18 Accordingly, my conclusion is that the RRT decision should be set aside, the matter remitted to the RRT, differently constituted, for decision in accordance with these reasons. The respondent should pay the applicants' costs of this application.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.
Associate: Dated: 18 October 2001 The applicants appeared in person
Trujillo
Minister for Immigration & Multicultural Affairs