Hincapie v Minister for Immigration and Multicultural Affairs

[1999] FCA 1526

FEDERAL COURT OF AUSTRALIA

Hincapie v Minister for Immigration & Multicultural Affairs [1999] FCA 1526

DAGOBERTO HINCAPIE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 609 OF 1999

JUDGE:  SACKVILLE J
PLACE:  SYDNEY

DATE:  4 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 609 OF 1999

BETWEEN:	DAGOBERTO HINCAPIE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	4 NOVEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed. 

2.The applicant pay the respondent’s costs of the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 609 OF 1999

BETWEEN:	DAGOBERTO HINCAPIE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	SACKVILLE J
DATE:	4 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Application

1. This is an application to review a decision of the Refugee Review Tribunal (“RRT”) made on 31 May 1999.  The RRT affirmed a decision made by a delegate of the Minister on 8 January 1998, refusing to grant the applicant a protection visa. 

2. At the conclusion of the hearing I indicated that I intended to make orders dismissing the application with costs and that I would provide written reasons.  The following are the reasons.

   Legislation

3. Under s 65(1) of the Migration Act 1958 (Cth) (“Migration Act”), the Minister may grant a visa only if satisfied that the criteria prescribed by the Migration Act or the Migration Regulations have been satisfied.  A criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (“the Convention”): Migration Act, s 36(2).  That criterion for a protection visa is fulfilled where, at the time of the decision, the Minister “is satisfied that the applicant is a person to whom Australia has protection obligations under the [Convention]”: Migration Regulations 1994 (Cth), Sch 2, reg 866.221.

4. Article 1A(2) of the Convention defines a refugee as a person who

   “owing to 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.”

   The Applicant’s Claims

5. The applicant is a citizen of Colombia.  He and his de facto partner, Ms Ramirez, arrived in Australia on 30 June 1997.  On 7 July 1997, they lodged a combined application for a protection visa.  The Minister’s delegate refused this application on 8 January 1998.  The applicant and Ms Ramirez then sought review of the delegate’s decision by the RRT.  However, as the RRT noted, only the applicant made claims under the Convention. 

6. The applicant was not legally represented before the RRT.  He appeared and gave evidence at a hearing on 25 May 1999.  He did so without the assistance of an interpreter, his English being adequate for the purpose.  Ms Ramirez also attended the hearing, as did the applicant’s sister and niece (both of whom are residents of the United States). 

7. The applicant claimed that he had been a permanent resident of the United States since 1981, but that his residency had been revoked in October 1996 when he was deported after serving part of an eight year sentence for drug trafficking.  The applicant said that a relative had introduced him to a Colombian “drug lord” in the United States, in 1992.  The applicant and his then wife began working for the drug lord in March 1992, using their house as a storage centre for drugs smuggled from Mexico.  The applicant also helped to distribute the drugs. 

8. The applicant had been arrested in June 1992, only three months after commencing work for the drug lord.  On 18 November 1992, he was sentenced to eight years’ imprisonment, but was released in 1996, presumably in order to enable his deportation to Colombia.  Following his deportation, the applicant lived with his uncle in Pereira, Colombia, and was supported by his brothers who were resident in the United States.

9. According to the applicant, in January 1997, two members of the cartel for which he had worked had come to his uncle’s house and demanded that the applicant attend a meeting with the drug lord.  He did so, and was told to return to the United States in order to resume his drug related activities.  The applicant was to use a different name and to operate from a different area of the United States.  The applicant’s account was that he was told to await further instructions which would be given to him in March 1997. 

10. The applicant said that he was frightened by these events and so pretended to agree to follow instructions.  However, in March 1997, he fled to Ms Ramirez’s home town, Apia.  In Apia, he and Ms Ramirez applied for Colombian passports and also for visas to enable them to visit Australia. 

11. In all, the applicant claimed to have remained in Apia for three months before he and Ms Ramirez departed for Australia.  According to the applicant, prior to leaving Colombia, he reported the cartel’s visit to the Colombian police.  However, he had been unable to supply the name of the cartel members because they used nicknames.  He said that, in any event, the Colombian police were corrupt and were “not disposed to help people like him”. 

12. According to the applicant, while he was staying in Apia, the cartel operatives had visited his uncle’s home in Pereira in order to find him.  The operatives were told that the applicant had gone to Costa Rica.  The applicant claimed that the operatives had threatened his uncle, stating that they would keep searching for the applicant until they found him. 

13. The applicant told the RRT that he could not have continued living safely in Apia, as the cartel eventually would have found him.  He also said that he had not considered relocating elsewhere in Colombia, since he was unfamiliar with this country and his immediate family did not live there.  He asserted that, in any event, the cartel would continue to search for him throughout Colombia.

14. In response to questioning by the RRT, the applicant stated that the drug lord was particularly interested in him because he was a trusted former worker of the cartel.  Somewhat inconsistently (as the RRT observed) the applicant also claimed that the cartel was concerned that he would pass on information to rival cartels such as the names of contacts he had established while in the United States.  The applicant stated that he did not wish to return to Colombia as he feared the cartel would kill him because of his disinclination to work for it.

    The RRT Decision

15. The RRT accepted that the applicant had worked for a drugs cartel and that he had been deported to Colombia after serving a drug-related sentence in the US.  The RRT also accepted that the cartel “might have asked him to work for it again in a minor way in Colombia”.  However, it expressed doubts about the credibility of the applicant’s claim that the cartel was insistent that he work for it and that it wanted him to return to the United States. 

16. The RRT pointed out that because the applicant was known to law enforcement authorities in the United States, he stood next to no chance of being allowed to re-enter the United States, or to operate successfully as a cartel operative.  The RRT considered it implausible that the cartel would be willing to invest in giving the applicant a new identity, as it could easy have found someone else to do their work in the United States.  The applicant, on his own description, had been “just one cog in the vast machinery of cartel work” and therefore easily replaceable.  Moreover, he would have been seen as a “bad bet” by the cartel.  In these circumstances, his claim of being forced to go back to the United States to work for the cartel was not credible.

17. The RRT said that this finding was also supported by the fact that, on his own evidence, the applicant was unenthusiastic to carry out the task suggested by the cartel.  In these circumstances, it was “extremely implausible” that he would be seen as a trustworthy operative.  This provided an additional reason for not accepting that the drug lord was pressing the applicant to work for him. 

18. The applicant’s claim that the cartel pursued him because it did not wish the applicant to divulge information to rival cartels was plausible in itself.  However, the RRT considered that the claim sat uncomfortably with the applicant’s contention that the cartel was seeking him because it trusted him.  The RRT was therefore not satisfied that his claim was credible and concluded that the applicant had

    “fabricated this claim, at a late stage in the hearing, in order to bolster his application for a protection visa.”

19. Having reached this conclusion on the facts, the RRT nonetheless proceeded to consider what the position would have been had it accepted that the cartel had actively sought the applicant, either to prevent him working for rival cartels or because it wanted to engage him in its operations.  On these assumptions, the RRT was not satisfied that the harm allegedly feared by the applicant could constitute persecution for a Convention reason.  It was evident that the past and suggested current connection between the applicant and the cartel was for a “criminal reason only, that of drug peddling”.

20. The RRT thought that the applicant might fit the Convention definition of “particular social group” because, on his account, the cartel was seeking to re-employ him since he was one of a group of people who had worked for them in the past.  This claim was flawed because the RRT did not consider it credible that the cartel would see the applicant as a trustworthy worker and therefore it would not have sought to re-engage him.  In any event, it could not be said that the applicant had a well-founded fear of persecution because the cartel would not have been seeking to harm him, but simply to re-employ him because his services were considered valuable.

21. The RRT then addressed the possibility that the applicant could fit the Convention category of “particular social group” because the cartel was seeking to silence him in order to eliminate the possibility that he would divulge secrets to rival cartels.  This claim could not be sustained because, as the RRT had already stated, the factual foundation for it lacked credibility.  The applicant was merely a cog in the large drug-trafficking operation and, in any event, would not have amassed any more information than other cartel workers.

22. The RRT went on to say that, even if it accepted the claim that the cartel wished to silence the applicant, he could have found protection within Colombia.  His reasons for not considering internal relocation did not bring him within the ambit of the Convention.  He had some relatives, including those who had previously given him shelter and protected him from the cartel.  Both he and Ms Ramirez were familiar with the national culture and language.  Any problems he might have in finding employment and settling in a new area of Colombia would be no different to the problems he would encounter in Australia.  Moreover, the RRT rejected the applicant’s claim that the cartel would comb the country in order to find him.  If, as he claimed, he lived unnoticed and in safety in Apia for three months while the cartel was looking for him, he could have gone on living in safety there or in another area.  This view was supported by a report from the United States Bureau of Democracy, Human Rights and Labor which the RRT considered applied both to guerillas and to drug cartels.

23. The RRT summarised its conclusions as follows:

    “I find that the applicant’s claims lack credibility and therefore I am not satisfied that he has a well-founded fear of persecution under the Convention in Colombia.  Even if his claim of being pursued by a cartel is true, I consider that he could find protection within Colombia by relocating to another area of the country.  Therefore, I find that Australia is [not] obliged to offer him protection under its Convention obligations.”

    The RRT accordingly affirmed the decision not to grant the applicant a protection visa.

    Proceedings in this Court

24. The applicant filed an application on 22 June 1999.  The application was defective because it did not identify the decision in respect of which review was sought and identified the Department of Immigration and Multicultural Affairs, rather than the Minister, as the respondent.  The application asserted that, if the applicant were to return to Colombia, his life would be in great danger from the cartel.  However, the application did not identify any ground of review available under the Migration Act.

25. At a directions hearing on 29 July 1999, the applicant was directed to file an amended application within seven days specifying the Minister as the respondent and identifying the decision to be challenged as that of the RRT, made on 31 May 1999.  The applicant was directed to file and serve affidavits by 26 August 1999 and the matter was listed for hearing on 3 November 1999.  Both parties were directed to file and serve written submissions in advance of the hearing.

26. On 29 July 1999, the applicant filed a further application for an order of review. It substituted the Minister as the respondent in place of the Department and, indirectly at least, identified the decision under challenge as that of the RRT made on 31 May 1999. However, the application did not identify any grounds of review by reference to those available under s 476 of the Migration Act. Nor did the applicant file any written submissions.

27. At the hearing, the applicant indicated that he wished to put forward a claim on humanitarian grounds.  It was explained that the powers of the Court are limited to those specified in the Migration Act and that it is the Minister who has power to address a claim made on humanitarian grounds.  The applicant did not advance any arguments that would justify setting aside the decision of the RRT.  Nor does a reading of the RRT’s reasons suggest any basis for intervention by the Court.

28. In these circumstances, the application must be dismissed.  The applicant must pay the Minister’s costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             4 November 1999

Counsel for the Applicant:	Unrepresented
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 November 1999
Date of Judgment:	4 November 1999