Minister for Immigration and Multicultural Affairs v Y

[1998] FCA 516

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Application for review of decision that applicant had refugee status - Brazil - Police corruption - whether threatened harm was persecution or individualised violence - whether exposure of corruption amounted to expression of political opinion - motivation behind harm - Is a State a political entity?

Minister for Immigration & Multicultural Affairs v Y & Ors (unreported, Davies J, 15 May 1998)

Migration Act 1958 (Cth), s 476(1)(e)

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v Z & ORS
NG 79 of 1998

DAVIES J
SYDNEY
15 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 79  of   1998

BETWEEN:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
APPLICANT

AND:

Z
FIRST RESPONDENT

IZ
SECOND RESPONDENT

TZ
THIRD RESPONDENT

JUDGE:

DAVIES J

DATE OF ORDER:

 15 MAY 1998

WHERE MADE:

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs.

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	NG 79 of 1998

BETWEEN:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
APPLICANT

AND:

Z
FIRST RESPONDENT

IZ
SECOND RESPONDENT

TZ
THIRD RESPONDENT

JUDGE:	DAVIES J
DATE:	15 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This application, brought by the Minister for Immigration & Multicultural Affairs, seeks orders of review with respect to a decision of a Refugee Review Tribunal ("the Tribunal") which remitted the matter to the primary decision-maker with the direction that the respondents were persons to whom Australia has Convention obligations under the Refugees' Convention.  The Tribunal accepted that the respondents were refugees within Article 1A(2) of the Refugees' Convention which defines a refugee as a person:

"... 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."

(Emphasis added.)

The application is brought under s 476 of the Migration Act 1958 (Cth) which provides, inter alia:

"476(1) Subject to subsection (2), application may be made for  review  by  the  Federal  Court of  a judicially-reviewable decision on  any  one  or  more  of  the  following  grounds. 

...

(e)  that  the  decision  involved  an  error  of  law,  being  an  error  involving  an  incorrect  interpretation  of  the  applicable  law  or  an  incorrect  application  of  the  law  to  the  facts  as  found  by  the  person  who  made  the  decision,  whether  or  not  the  error  appears  on  the  record  of  the  decision;  ..."

Although the facts of this case are different from those considered in the case of Minister for Immigration & Cultural Affairs v Y, the two matters were heard by the same Tribunal and the decisions were given on the same day.  In this Court, the present application for review was heard immediately following argument in Minister for Immigration & Multicultural Affairs v Y.   In the circumstances, as the basic reasoning of the Tribunal was similar and very much the same material was relied upon, it is unnecessary to restate the reasons which I expressed in Minister for Immigraion & Multicultural Affairs v Y.  for considering that no reviewable error in the Tribunal's decision has been established.  I adopt the reasoning there expressed.

In the present case, the facts were that the applicant, Z, had worked as a police officer in Rio de Janeiro, Brazil, for more than a decade.  He gave evidence to the Tribunal that he had witnessed widespread corruption throughout the Security Forces and that he had refused to participate in corrupt activities.  Z gave evidence that he had provided to authorities in Brazil information concerning the corrupt activities of senior police officers and that had he remained in Brazil, he would have continued to do so.  Z gave evidence that he and his family were at risk because of the attitude which he took.  Z's wife gave evidence that, in 1993, she was abducted and sexually assaulted by police officers and warned that it would happen again if her husband did not cooperate with them.  Fearful for their safety, Z resigned from the Police Force in March 1996 and, in April 1996, he decided to leave the country with his wife and daughter.

The facts were, of course, a matter for the Tribunal which accepted the substance of the evidence given to it by Z and his wife.  The Tribunal said:

"...  the Tribunal accepts the applicants' account as truthful and finds that they did suffer serious harm in Brazil because the applicant took action against the illegal and often criminal activities perpetrated by his colleagues in police force.  The Tribunal is satisfied that the applicant, his wife and their child, will be at risk of suffering similar circumstances in the future for the same reasons."

The Tribunal also found that Z's actions constituted an expression of political opinion in relation to the Government and its instruments exercising the State's power, including the Police Force.  The Tribunal said:

"In the present matter, the Tribunal has decided that the applicant's actions, associated with his opposition to criminal activity perpetrated by police officers, led to the persecution which he suffered.  It also finds that the applicant's activities were effectively the expression of a political opinion against a pervasive aspect of the Brazilian state."

It is unnecessary for me to again repeat the considerations which I have set out in my reasons for judgment in Minister for Immigration & Multicultural Affairs v Y as to why I consider that the decision to which the Tribunal came was open to it and that there was no error of law expressed in or to be implied from its approach.  In my opinion, the Tribunal clearly understood the distinction between the likelihood of harm from the acts of individual police officers and the likelihood of harm to Z and his family from an instrument of the State such as the Police Force in Brazil because Z’s activities could be seen as a threat to the way in which the power of the State was exercised in Brazil.

I see no reviewable error in the Tribunal's decision.

In this case, as with the case of Y, the Tribunal spoke of the position of Z's wife and daughter as if their application fell within the words "fear of being persecuted for reasons of .. membership of a particular social group".  However, it is clear from the Tribunal's reasons that the Tribunal concluded that Z's wife and daughter were at risk of harm because of the combination of their relationship with him and of his political opinion.  This would be sufficient to bring the matter within the rubric of political opinion, which would seem to be the better way of expressing the matter.  His wife and daughter were at risk because harm to them could dissuade Z from continuing to conduct his campaign in respect of corruption in the Police Force.  I do not imply any error of understanding of the applicable law from the expression used by the Tribunal.

For these reasons, the application for review must be dismissed with costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date:               15 May 1998

Counsel for the Applicant:		Mr Robert Beech-Jones
Solicitor for the Applicant:		Australian Government Solicitor
Counsel for the Respondent:		Mr J A Gibbons
Solicitor for the Respondent:		Mr James Coelho
Date of Hearing:		30 April 1998
Date of Judgment:		15 May 1998