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 approvedGERMAN 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
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTRUAL AFFAIRS
RESPONDENTJUDGE:
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
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
HILL, MATHEWS & LINDGREN JJ
DATE:
2 AUGUST 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
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.
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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- Case
- [2000] FCA 1000
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.”