Ramirez v Minister for Immigration and Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA

Ramirez v Minister for Immigration & Multicultural Affairs [2000] FCA 1000

MIGRATION – Refugee application – Review of decision of Refugee Review Tribunal – appellant claimed that he feared persecution for reason of his imputed political opinion – whether the Tribunal erred in law in its finding that the appellant’s resistance to criminality could not be construed as a political opinion – whether the Tribunal erred in not considering whether the appellant’s whole local community was being persecuted because it sought the protection of the army - whether the Tribunal erred in not considering whether the alleged persecution had more than one motivation.

Migration Act 1958 (Cth) ss 36, 430, 476

Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421 referred to
Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560 referred to
Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906 referred to
Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908 referred to
V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355 followed
Sarrazola v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 641 followed
Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 followed
Minister for Immigration and Multicultural Affairs v Y (Davies J, 15 May 1998, unreported) followed
Canada (Attorney-General) v Ward (1993) 103 DLR (4th) 1 approved

GERMAN DARIO AGUDELO RAMIREZ v MINISTER FOR IMMIGRATION AND MULTICULTRUAL AFFAIRS

N 94 OF 2000

HILL, MATHEWS & LINDGREN JJ
2 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 94 OF 2000

On appeal from a judge of the Court

BETWEEN:

GERMAN DARIO AGUDELO RAMIREZ
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTRUAL AFFAIRS
RESPONDENT

JUDGE:

HILL, MATHEWS & LINDGREN JJ

DATE OF ORDER:

2 AUGUST 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The applicant pay the respondent’s 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

N 94 OF 2000

On appeal from a judge of the Court

BETWEEN:

GERMAN DARIO AGUDELO RAMIREZ
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HILL, MATHEWS & LINDGREN JJ

DATE:

2 AUGUST 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. This is an appeal from the judgment of a judge of this Court (Whitlam J) dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) brought by the appellant under s 476 of the Migration Act 1958 (Cth) (“the Act”). The decision of the Tribunal, made on 24 February 1999, had affirmed a decision of the respondent’s delegate to refuse the appellant a protection visa.

  2. The criterion for the grant of a protection visa, under s 36 of the Act, is that the applicant for it be a non-citizen in Australia to whom Australia has protection obligations under the

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Details
Case
[2000] FCA 1000
Decision Date

CaseChat Overview and Summary

In the case of Ramirez v Minister for Immigration and Multicultural Affairs, the appellant, a Colombian national, sought a protection visa on the basis that he was being persecuted by the ELN for his political activities and refusal to pay extortion money. The Tribunal found that the appellant's fears were not based on persecution for a Convention reason but rather on criminal extortion. The appellant appealed this decision to the Federal Court of Australia, which considered the evidence and arguments put forward by the appellant.

The court had to decide whether the appellant's fears were based on persecution for a Convention reason or whether they were based on criminal extortion. The court considered the evidence and arguments put forward by the appellant, including his statutory declaration and country information reports. The court found that the evidence suggested that the ELN was not persecuting the local community for its perceived political opinion but rather for financial gain.

The court held that the Tribunal's finding that the ELN's motive was a financial one was supported by the evidence before it. The court noted that the appellant had received individual demands for money from the ELN and had been threatened with violence if he did not comply. The court found that the appellant's claims of political persecution were not supported by the evidence and that the Tribunal was correct to reject the appellant's application for a protection visa.

The appeal was dismissed, and the applicant was ordered to pay the respondent's costs. The court found that the Tribunal's decision was reasonable and based on the evidence before it. The court held that the appellant's fears were not based on persecution for a Convention reason but rather on criminal extortion, and that the Tribunal was correct to reject the appellant's application for a protection visa.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs.

Background

Background to the litigation

Article 1A(2) of the Convention provides that a refugee is 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; 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.”Background The appellant, a Colombian national, was born in Anserma in the Department of Caldas on 20 August 1957. After completing his schooling he worked in a supermarket in Anserma, where he remained until 1994. In 1992 he bought a small farm, of 5,000 square metres, about ten minutes drive from Anserma. In 1994 he retired as a supermarket administrator in order to devote all his time to his farm. In November of that year, in circumstances we shall describe shortly, he left the farm and the Anserma area and moved to Pereira approximately 200 kilometres away. On 22 October 1995 he left Colombia for Australia, where he arrived on 24 October. On 22 August 1996 the appellant applied for a protection visa. His application contained brief handwritten statements to the effect that he feared that the guerilla group Ejercito de Liberacion Nacional (ELN) would kill him if he returned to Colombia. They had threatened to kill him if he did not make regular payments to them. They had increased their demands to amounts which he could not afford, so they had attacked him on his farm and he feared further attacks. As part of his response to some of the questions in the standard form of visa application the appellant stated “More information will be provided later”. He did provide some information in the form in answer to those questions but did not provide any further information before the delegate made his decision. No issue arises as to the validity of the application for review or as to the Tribunal’s jurisdiction to review the delegate’s decision. It has not been suggested that the visa application was not valid: cf Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421; Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560; but now Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906 (FC) and Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908. On 10 July 1997 the visa application was rejected on the basis that the appellant’s fears related to criminal extortion rather than persecution for a Convention reason. On 7 August 1997 the appellant applied to the Tribunal for review of the delegate’s decision. A statutory declaration of the appellant, dated 22 September 1997, was later forwarded by his solicitors to the Tribunal together with other supporting documentation. The statutory declaration contained details of the appellant’s background and claimed that he and his family had connections with the Liberal Party. The Liberal Party is the ruling party in Colombia and was said to be strongly opposed by the ELN. The appellant said that he was also involved with the communal action group of the district of Campo Alegre where his farm was. This group sought government assistance in community projects such as building roads and providing health services. He was treasurer of this group. The statutory declaration gave details of the ELN’s demands for money from him and other farmers in the area. He and the others agreed to meet a request for money made in May 1994 which, in the appellant’s case, was for 500,000 pesos. In oral evidence before the Tribunal, the appellant said that this initial approach was only in the nature of a request and was not accompanied by a threat. He and others thought that payment would buy them some peace. However about three months later, in July 1994, the guerillas made increased demands (700,000 pesos in his case) which the appellant and others decided not to pay. The appellant had also been asked by the guerillas to pay them an amount of 10 million pesos which the government had granted to the local group for the building of a clinic. The appellant refused, saying that he was unable to obtain access to these funds. What happened afterwards is described in the statutory declaration as follows:“24. With my neighbours of the communal action group we organised a delegation to go to Manizales with petitions from everyone in the town and ask for help and protection from the army. As a result of out [sic] petition, the army established its presence in the area including mounting a mobile military post, which patrolled the area day and night. They had confrontations with the guerillas in the neighbouring mountainous region and after this the guerilla’s presence was not felt in the region.25. But after a few weeks, the army left, and we were once again alone and unprotected. From that moment on the written threats started again. A few people around the area started receiving notes saying that we had to pay double the quota because our area supported the government. News about the notes spread but it was different from before when people had received individual demands about the amount we had to pay. The notes said that if we did not comply we would pay with out [sic] lives.26. For us there then began a terrible time of fear. As strangers arrived in the region for the start of the harvest we suspected that they were guerillas. Because of this many friends from the region went to the cities Pereira, Medellin, Cali etc leaving their farms in the hands of caretakers.27. At the end of August an unexpected violence was unleashed in the Anserma region. Several farmers were assassinated on their farms by the guerillas. The army returned to the region and there were several confrontations in the areas close to Campo Alegre.28. The Communal Action Group had continued to meet but with less enthusiasm than before. People had started to withdraw from the group and to leave the district because they were frightened of the guerillas. I stopped going in around August 1994.29. In October one night I heard a noise in the middle of the night and went out to investigate I did not find anyone. However the next day I found a note. This note said that I had to pay double the previous quota of 700,000 pesos. This was because I was an ‘enemy’. I had collaborated with the army by asking them in to the area and I was a delegate of the Liberal Party. The note also said that I had to leave the farm because I was a member of the Liberal Party. The guerillas again demanded that I find the 10,000,000 pesos which had been the amount of the grant from the government. The note said that if I did not pay I would pay with my life.30. As far as I know I was the only person in the communal action group who received an individual note. The other people in the region who received individual notes were the more wealthy owners of the haciendas.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 15 December 1998 the appellant’s solicitor wrote to the Tribunal setting out reasons why it was submitted that it would not be reasonable for the appellant to live anywhere in Colombia. The letter enclosed a further statutory declaration of the appellant, made on 15 December 1998, and a lengthy report from the US Department of State on human rights practices in Colombia in 1996. In his statutory declaration the appellant took issue with the proposition that the ELN guerillas were no longer politically motivated. He made the following observations:“7. As a Colombian, I feel that the guerilla groups have a good chance of overthrowing the government, as stated in page 1 of the RRT letter, they control 57% of the country’s 1,071 municipalities. Also, the money they bring in through drugs trafficking, extortion, kidnapping, protection rackets and other activities is very large. I know from the RRT letter that they are better equipped than the Colombian Army itself. Given time, they will not even need to ask for support from the urban areas, whoever has the most guns, has the power. Who can argue with that?8. The ultimate aim of these guerilla groups is to take over power from the government. Why else would they bother to sabotage the oil pipelines? While people say they are only ‘narcoguerillas’, once they have the money and have consolidated their power, I feel that they will overthrow the government much like the communists did in China in 1949.9. I am a member of the Liberal Party and also one of the influential members of the Communal Action Group in my district, Campo Alegre. We had been successful in getting local development grants from the government to build a clinic. Our aim is clear: to limit ELN’s efforts to recruit the local people in my district to the ELN’s cause by getting the government to show support for the local people. The clinic is a way for the government to gain the support of the people.10. I know that it is due to my political activities and opinion that the ELN has targeted me. They are angry I called in the army twice and also that I told them I could not hand over the money for the clinic to them. I did not have the money, the municipality had the money, but they did not believe me.11. I would like to tell the Tribunal that I am one of the local civic leaders targeted by the ELN as what the US State Department said in their Country Report on Colombia 1997 on page 2 of the RRT letter.”The Tribunal’s Decision The Tribunal’s decision took the familiar course of describing the legislation and the requirements of the Refugees Convention before turning to deal with the claims and evidence in the immediate case and ultimately the Tribunal’s findings and reasons. In the “claims and evidence” section the Tribunal set out the appellant’s claims, and quoted “country information” including some of the reports submitted by him. Under the heading “findings and reasons” the Tribunal made the following primary finding:“The Tribunal accepts that the events the applicant claimed took place in Colombia may have taken place but does not accept that the threats, and hence his fears, are for reason of his political opinion, real or imputed. The Tribunal finds that there was a shift in emphasis in the applicant’s evidence that sought to give his claims a Convention nexus. The Tribunal has considered the evidence and arguments put forward by the applicant but, is unable to accept that the ELN were politically motivated in their actions against him and finds that the ELN’s motive was a financial one.”

Ratio Decidendi

Legal Principle Established

The evidence before the Tribunal which the appellant says suggested that the ELN was persecuting the local community for its perceived political opinion was as follows:1. Appellant’s statutory declaration dated 22 September 1997“But after a few weeks, the army left, and we were once again alone and unprotected. From that moment on the written threats started again. A few people around the area started receiving notes saying that we had to pay double the quota because our area supported the government. News about the notes spread but it was different from before when people had received individual demands about the amount we had to pay. The notes said that if we did not comply we would pay with our lives. [emphasis added]For us there then began a terrible time of fear. As strangers arrived in the region for the start of the harvest we suspected that they were guerillas. Because of this many friends from the region went to the cities Pereira, Medelin, Cali etc leaving their farms in the hands of caretakers.At the end of August an unexpected violence was unleashed in the Anserma region. Several farmers were assassinated on their farms by the guerillas. The army returned to the region and there were several confrontations in the areas close to Campo Alegre”2. Submission to Tribunal by appellant’s solicitor, dated 31 August 1998“After paying their quotas, a larger demand for money soon followed. This time the Communal Action Group decided not to pay, but to approach the authorities in Manizales for protection. As a result, the army established its presence in the area, and the guerilla presence seemed to disappear. Yet once the army left, the written threats started again, this time demanding more money as a consequence of having supported the government. [emphasis added]In this climate of fear, people started to flee the area, leaving their farms in the hands of caretakers. People also started to withdraw from the Communal Action Group. Mr Agudelo stopped attending meetings in around August 1994, and resigned in October 1994. That was this was done under duress is verified in a letter of reference signed by the Secretary of the Association of Communal Groups of the Municipality of Anserma (enclosed).At the end of August 1994, several farmers were assassinated. The army returned and there were several confrontations with the ELN in the area close to Campo Alegre.In October 1994 Mr Agudelo received a demand for double the quota asked for the year before. The reason given was his collaboration with the army and his involvement in the Liberal Party. As a result, the threat declared that he had become an ‘enemy’ of the ELN. The note also again demanded that the 10,000,000 pesos be handed over from the Communal Action Group fund. His life was threatened should he not pay.”3. The appellant’s evidence before the TribunalAfter giving evidence that he had travelled to Manizales and spoken to an army commander there the evidence as recorded in the transcript continued:“Q224: Ah hmm. What did he say?A(INTPRTR) We told him the problem that we had and he said that he would, he promised that he would assist, and some eight days later the military post was established, and the soldiers patrolled day and night, and in fact there were encounters between these troops and the guerrillas in the region next door.Q225 OK. So what, did the problem stop?A(INTPRTR) At that time we had no more problem, but later on there was a resurgence of guerrilla activity all over the country and that mobilised also our region, and in August these people re-appeared.Q226 So how long were the troops there for?A(INTPRTR) One month, the army was there for one month.Q227 OK. So what happened?A(INTPRTR) They were, they began to make trouble for people.Q228 How?A(INTPRTR) They were, we got notes we were saying we were collaborators with the army and that we were helping the government.[emphasis added]Q229 Anything else?A(INTPRTR) And that now our contributions would have to be paid double, that otherwise they would convert the region into one, that otherwise they would make the region like another part of the country, which is a guerrilla region.”