Perez, Rony Alberto Diaz v Minister for Immigration & Multicultural Affairs

[1998] FCA 1753

RONY ALBERTO DIAZ PEREZ v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. NG 797 of 1998
FED No. 1753/98
Number of pages - 5

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

TAMBERLIN J

SYDNEY, 15 December 1998 (hearing), 24 December 1998 (decision)

#DATE 24:12:1998

Counsel for the Applicant: Mr D Jordan

Solicitor for the Applicant: Kessels & Associates

Counsel for the Respondent: Miss R M Henderson

Solicitor for the Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

The application is dismissed with costs.

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

TAMBERLIN J

Mr Perez is a citizen of Peru, who arrived in Australia on 16 December 1996. On 11 March 1997, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 14 June 1997, a delegate acting on behalf of the Minister refused to grant the visa. On 18 July 1997, the applicant sought review of that decision by the Refugee Review Tribunal ("the RRT"). The RRT, on 8 July 1998, delivered reasons for its decision, which affirmed the delegate's decision not to grant a protection visa.

A criterion for the grant of a protection visa is that, at the time of the decision, the applicant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. Article 1A(2) of the Convention defines a "refugee" as 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; ..." (Emphasis added)

Mr Perez stated that he was at school from 1978 to 1989. From January 1990 to December 1996 he worked at a restaurant as a manager.

The applicant's claim for refugee status was made on the basis of political opinion. He said that his father, a prosperous businessman, who owns some businesses in Peru, received extortion threats from the Shining Path Revolutionary Movement ("the Shining Path"). In order to avoid paying these demands, his father distributed some of his assets to the applicant and his sister. He said that when his sister took over his father's clothing shop, the Shining Path attacked the clothing business. At the time of the attack, the Attackers said it was not theft but taking possession of wealth to finance the popular fight. In October 1994, the restaurant, which the applicant's father owned and the applicant managed, was attacked and the applicant was assaulted and shot. During the attack, a bullet perforated the applicant's lung and liver. Both before and after the assault in the restaurant the attackers said they belonged to the Shining Path and shouted "death to traitors and enemies of the popular fight." The applicant said during the hearing before the RRT, the extortion threats had stopped after this attack on him and the only visits thereafter by the Shining Path were to ask where the applicant was.

The RRT accepted that the applicant was manager of the restaurant "El Galeon" owned by his father and that he became the manager of the business. The RRT accepted that in the course of the extortion attempt in 1994 the applicant was shot and that this had traumatised him and left him with lingering disabilities both physical and mental. The RRT also accepted that the applicant was involved in a minor way with the MIO, a political group opposed to the ideals of the Shining Path.

In relation to the applicant's claims that the authorities could not protect him against the Shining Path if he returned to Peru, the RRT noted the country intelligence to that effect. It accepted that if it could be established that the applicant faced a real chance of harm from the Shining Path for a political reason, this could constitute "persecution" within the Convention meaning. However, it found that the threat of harm was not for a political reason but was because the applicant did not meet the extortion demands. The RRT also concluded that there was no evidence before it to establish a Convention link.

The RRT accepted that the Shining Path itself had a political motive for the extortion demands in the sense that they aimed to extract the money for their political objectives rather than extorting money like common criminals for personal purposes. However, it concluded that simply because the Group extorts money to further political aims, it did not automatically follow that they choose their victims on the basis of the victim's political opinions. The finding was, in substance, that the applicant was targeted as a source of funds and not by reason of political opinion. It considered that the evidence before it indicated the threat to the applicant was part of the extortion pattern against one of the father's businesses. Other members of the family who worked in the father's businesses had also been targeted for extortion. The RRT noted that the applicant had not been threatened by the Shining Path before 1992 when he started to manage the restaurant. Therefore, it rejected the claim that the harassment was for a Convention reason but concluded it was for a financial reason.

As a second and alternative reason for affirming the decision under review, the RRT found that even if the applicant had been targeted because of political opinion, there was no well-founded fear in relation to Peru as a country (as opposed to the restaurant and surrounding areas) because it was safe and reasonable for him to relocate elsewhere in Peru. It was, therefore, possible for him to avail himself of the protection in Peru: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440-441. The RRT took into account the fact that the relocation principle only applies to people who can genuinely access domestic protection and for whom the reality of protection is meaningful. It considered that if relocation was not a reasonable option in the particular circumstances, it may be said that a person's fear of persecution in relation to the country as a whole is well-founded.

The RRT accepted that the applicant had been traumatised by the 1994 attack and that it therefore would, be unreasonable to expect him to live without strong family emotional support. Nevertheless, the RRT formed the view on the material before it that his mother had moved to North Peru and that the applicant could get proper support from her. He also had an uncle who lived away from the restaurant area. The applicant had previously lived with his mother in Peru and there was no indication that the relationship with his mother was not strong or affectionate or supportive. It concluded that the applicant would be able to live with his mother or uncle as he did when he was previously in Peru.

The RRT was not satisfied, therefore, that the applicant was a person to whom Australia has protection obligations under the Convention.

Persecution for reasons of political opinion

While the RRT accepted that the ground for harassment does not have to be solely or mainly for a Convention reason, nevertheless it found in this case that it was not for a Convention reason at all. It accepted that if it could be shown that political reasons were a significant cause of the harassment, the requisite link would be made out. However, the RRT found that there was "no evidence before it to establish a Convention link" and that the retribution feared by the applicant from the Shining Path for not paying their extortion demands was because he failed to pay extortion money.

For the applicant, it is submitted that there was sufficient evidence to support a conclusion that the attack in the restaurant, considered in the light of other events, was for a political purpose and that to assert that there was no evidence before the RRT to establish a political link was clearly erroneous. However, the reasons of the RRT are not to be read in an unduly critical manner in search of error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

The language used by the RRT on a proper construction, in my view, does not indicate any statement that there was no evidence to support a Convention link, but rather that its ultimate conclusion on the whole of the evidence was that there was no link to a political opinion. There are references in the reasons to other matters which give a faint political flavour to the threats and the attack. For example, in relation to the October 1994 attack, the RRT referred to the fact that the attackers called him a traitor to their people's cause. When the reasons referred to the absence of evidence to establish a Convention link, in my view, the decision-maker is saying in substance that there was not sufficient evidence to persuade the RRT that there was a political link. That determination is a question of fact and degree for the decision-maker.

Having regard to the above considerations, I am not satisfied that the applicant has made out a case that the RRT erred in failing to find that the persecution was for a Convention reason. The application must, therefore, be dismissed.

Relocation

The applicant points to evidence provided by Gabriela Salabert, a consulting psychologist, that the applicant suffers from Chronic Post Traumatic Stress Disorder and that he requires substantial emotional and family support in order to overcome this chronic stress disorder. The applicant submits that there would be no such family support available to him if returned to Peru and that there is strong family support for him here in Australia.

After the hearing had been completed, a letter was submitted to the RRT indicating that the family of the applicant had disintegrated owing to the fear of persecution by the Shining Path and that the applicant's mother had been forced to move to the north of Peru; that his father had been constantly moving around Peru, never staying in a particular place for too long, and that his step brother was living in Bolivia. The applicant's family business had been left in the care of a manager. The RRT adverted to this letter in its reasons, noting that his mother had moved to the north of Peru but concluded that it would still be open to him to live with his uncle The material before the RRT indicates a history of a strong supportive relationship between the applicant and his mother. It noted that his mother had recently moved to North Peru but it concluded that if he felt he needed family support he would find this with his mother.

In my view, it cannot be said that the finding in relation to relocation was without foundation in the evidence. There was sufficient material to enable the RRT to reach the conclusion that it was reasonable for the applicant to relocate.

Procedural fairness

The applicant submits that in order to provide substantial fairness and act according to the merits of the case, it was essential that the RRT should signal to the applicant that it proposed to form a view based on the letter furnished by the applicant's solicitor dated 11 May 1998, which referred to the disintegration of the family to the effect that he could reasonably relocate. In my view, there was no denial of any opportunity to the applicant to address this question. The information was proffered on behalf of the applicant himself and the RRT was entitled to act on it as it saw appropriate without re-opening the proceedings or inviting further submissions on the point. This is not a case where some material or a submission is given to the RRT, of which an applicant is unaware. In such a case, it may be incumbent on the RRT to disclose the material and allow further submissions. However, in this case the RRT reached a conclusion on the material which the applicant produced.

In relation to the question of relocation the applicant submitted that there was no evidence to support a conclusion that the applicant could relocate and still receive family emotional support by moving to live with his mother or uncle. In order to support that conclusion, the applicant relies on further evidence sought to be filed on the hearing before me, which was not before the RRT. In my view, such evidence is admissible to show that a fact on which the RRT relied; namely, the existence of emotional support and the reasonableness of relocation in Peru, did not exist. Evidence which goes to establish the existence or non existence of this fact is material which can be looked at by a Court on an application for review under the Migration Act. However, while the evidence in the present case does provide some support for the view that it would be unlikely that the uncle would be able, because of his financial circumstances and family commitments, to provide emotional support. Nevertheless the affidavit supports the view that there is emotional support available from his mother. This is shown by regular communications up to October 1998. There is nothing in the additional material to indicate that his mother would be unwilling or unable to provide the emotional support required by the applicant in his distress.

There was also evidence before the RRT that the applicant had lived with his mother for some time until he left Peru. There is no indication from the evidence that the area where his mother lives would be unsafe for the applicant. Accordingly, I do not accept the submission that the decision of the RRT disclosed an error of law on the ground that it relied on a particular fact which did not exist.

Error of law

The error of law is said to be that the RRT did not consider whether the applicant's fear of persecution arose by way of imputed political opinion on the part of the Shining Path so, that even if he did not, in fact, hold a political opinion adverse to the Shining Path, nevertheless he was perceived by them to hold such an opinion. In my view, the RRT reasons do not indicate that it failed to consider whether the applicant might be perceived by the Shining Path to have views contrary to their own. It specifically referred to the evidence that he had been called a traitor and concluded that this did not give rise to a political ground. There is no substance in this submission.

Irrationality - misconception of inferences

It is said by Counsel for the applicant that the finding that there was no evidence to establish a Convention link to the persecution demonstrated a failure to rationally consider the whole of the evidence. In my view, this is not so. It is really a question of construction to be decided by the RRT and, in my view, as mentioned above, when reference is made to the fact that there was no evidence to establish a link, the RRT is really saying that it was not satisfied that the evidence, read as a whole, did establish such a link. This is apparent from the following discussion in the reasons. The conclusion reached by the RRT was open to it on this matter.

Conclusion

The application should be dismissed with costs.