S262 of 2003 v Minister for Immigration
[2005] FMCA 938
•13 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S262 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 938 |
| MIGRATION – Refugee – member of social group and political party – “singled out” for extortion – relocation. |
| Migration Act 1958, ss.477, 477(1A), 91R, 65, 36(2) Federal Magistrate Court Rules 2001, r. 21.02(2)(a) |
| Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71 Minister for Immigration Multicultural and Indigenous Affairs v Khawar and Ors [2002] HCA 14 Dranichnikov vMinister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 Bhupinder Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1014 Al-Amidi v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 177 ALR 506 Randhawa v Minister for Immigration (1994) 124 ALR 265 |
| Applicant: | APPLICANT S262 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1580 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 20 December 2004 |
| Date of Last Submission: | 20 December 2004 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. I. Archibald |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondent: | Mr. M. Wigney |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application is dismissed.
Applicant to pay the respondent’s costs set in the amount of $4500 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1580 of 2004
| APPLICANT S262 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 27 May 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 April 2001 and handed down on 8 May 2001 to affirm the decision of a delegate of the respondent Minister notified to the applicant by letter dated 1 April 1999 to refuse a protection visa to the applicant.
The applicant is a citizen of Colombia, who arrived in Australia on
13 February 1999. His claims centre around fear of harm from a guerrilla group in Colombia who sought to extort money from him, who threatened his life, and the failure of the authorities to provide adequate protection.By an amended application filed on 29 September 2004 the applicant asserts four grounds:
“1. The Tribunal erred in law in the exercise of its jurisdiction in that:
a. The Tribunal made a finding that the applicant was targeted because he was in possession of cash as a result of his business and the guerrillas therefore believed that he would have cash available to meet their demands.
b. Instead of determining the claim of the applicant as being a member of the social group comprising those business persons the nature of whose business generated significant quantities of cash, which thereby exposed them to an increased risk of extortion, the Tribunal incorrectly determined the claim on the basis that the particular social group of which the applicant claimed to be a member was victims of guerrilla groups. This was a jurisdictional error by the Tribunal.
2. The Tribunal fell into jurisdictional error in that:
a. The Tribunal made a finding that the applicant was not “singled out” for extortion by reason of his involvement with the Conservative party.
b. The Tribunal failed to consider that the applicant's involvement with the Conservative Party, being the political opponent of the guerrilla group, accentuated the risk of persecution, once his membership of the social group on which the claim was based became known to the guerrillas.
c. The Tribunal failed to consider whether the applicant's involvement with the Conservative Party increased or accentuated the risk of persecution, even if the applicant were to relocate within Colombia.
3. The Tribunal made a finding that the applicant would be able to find “peaceful residence” and “safety” elsewhere within Colombia. The Tribunal fell into jurisdictional error in failing to consider in the context of relocation the other elements of persecution and serious harm within the meaning of s.91R of the Migration Act 1958. In particular the Tribunal failed to take into [account?] the country conditions for displaced persons as described in the Independent Country Information elsewhere referred to by the Tribunal including US Committee for Refugees Country Report 2000.
4. The country information relied on by the Tribunal to make the relocation finding did not provide a probative basis for the finding.”
At the hearing before me the applicant was represented by Mr I. Archibald and the respondent was represented by Mr. M. Wigney.
I also have before me for the applicant:1)An affidavit sworn by the applicant on 21 September 2004. The affidavit goes to matters arising from previous litigation in respect of the same Tribunal decision.
2)A Notice to Admit Facts (and Authenticity of Documents) relating to a purported transcript of the hearing before the Tribunal. Mr. Wigney objected to the form by which this material was put before the Court. This was subsequently addressed by the applicant.
3)The affidavit of Susan Archer affirmed on 17 December 2004 annexing a true copy of the transcription of the tape of the hearing before the Tribunal. This was read into evidence at the hearing before me.
4)Written submissions filed on behalf of the applicant on 15 December 2004.
In addition to the Court Book, the respondent filed:
1) A Notice of Objection to Competency.
2) Outline of Submissions.
The applicant's first complaint is that the Tribunal characterised the applicant's membership of a particular social group for the purposes of the Convention, as those who are victims of guerrilla groups. The applicant's complaint is that the Tribunal relied on the applicant's initial characterisation of his claim going back to his original statement and did not go through the necessary legal analysis to ascertain the particular social group on the real basis on which the persecution was feared. Mr. Archibald submitted that the Tribunal has a duty to go through the material presented to it, and to identify the characteristics of the relevant group that applies to the applicant's circumstances. The applicant says that had the Tribunal correctly analysed the evidence before it, in relation to membership of a social group, it would have found that the applicant was a member of a social group, being businessmen with cash producing businesses which generated significant quantities of cash thereby exposing them to an increased risk of extortion. The applicant asserts that the Tribunal's determination that the relevant particular social group was “victims of guerrilla groups” was an incorrect determination and amounted to jurisdictional error by the Tribunal.
Mr. Archibald for the applicant referred to the Tribunal finding at CB 75.1:
“I note for the sake of completeness that there is nothing in the evidence before me to suggest, nor was it submitted, that the Applicant fears being persecuted by reason of his membership of any other ‘particular social group’ for the purposes of the Convention, such as his family. Indeed the applicant said at the hearing before me that he had been targeted because his business meant that he had a lot of money in cash rather than because his father had a farm.”
Mr. Archibald's position is that the Tribunal should have gone through the material before it, and had it done so in the way set out by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71, it would have found sufficient evidence to justify a finding that there was another particular social group, and that the applicant was a member of such a group. Mr. Archibald relied on the transcript (“T”) of the hearing before the Tribunal and submitted that the applicant, on more than one occasion, said that he was being persecuted because of his business and this meant that he had a lot of money in cash, and that he was perceived by the guerrillas as having a lot of cash available. Mr. Archibald’s submissions are to the effect that the Tribunal seized on one part of that, namely ‘victim of a guerrilla group’ and did not look at the applicant's claims in their totality. Further, Mr. Archibald relied on the cases of:
1)Minister for Immigration and Multicultural and Indigenous Affairs v Khawar and Ors [2002] HCA 14. He argued that there were some similarities to the case before this Court in that the Khawar case involved private persecution, and a failure by the State to protect or to be willing to protect, after complaints were made to the police. This he argued “resonated” with the case before me.
2)Dranichnikov vMinister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26, which is authority for the proposition that the proper task of the Tribunal is to determine whether the group or class to which an applicant belongs is capable of constituting a social group for the purposes of the Convention. The Tribunal then needs to determine whether the applicant is a member of that class. Mr. Archibald argued that the Tribunal failed to address the first question, that is, to look at the circumstances as presented by the applicant and arising from the applicant's case and to determine whether there was a social group, being the businessmen with cash who attracted the attention of guerrilla groups. It was the failure to do this that was an error on the part of the Tribunal. Mr. Archibald submits that the Tribunal addressed this issue as to the question to be followed in terms of the case of “Ram” (Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565) and not “Dranichnikov”.
The position put by Mr. Wigney for the respondent in relation to this ground is:
1)That the applicant had only ever expressly put the claim to the Tribunal, in relation to membership of a social group, that he was a member of the group that were “victims of guerrilla groups”.
2)That the Minister accepted that if an applicant fairly puts facts before the Tribunal that could reasonably give rise to relevantly a different social group the Tribunal is obliged to consider that.
3)That the applicant never put before the Tribunal, nor were there facts in this case that could give rise to, a claim that he was a member of the social group that the applicant now puts forward.
4)That the Tribunal most importantly did consider the case put on the basis as claimed by the applicant and that it disposed of it in the same way as Burchett J did, when sitting in the Full Federal Court in “Ram’s” case.
It is clear that the parties do not dispute that if there are circumstances in an applicant's case that give rise to the possibility of the applicant being a member of a social group that the Tribunal needs to ask the question as to whether there is such a group, and secondly, whether the applicant is a member of this group. The issue therefore for this Court to determine is what were the applicant's claims in this regard, and how were they dealt with by the Tribunal. The applicant's claims before the Tribunal as they go to membership of a social group, are set out in a number of places:
1)The accompanying statement made by the applicant lodged with his protection visa application. A translation is at CB 25 to 28. While this statement makes reference to a guerrilla group seeking to extort money from the applicant and his family, it is clear that there is no express reference in that document to any persecution feared by the applicant by reason of his membership of the social group now put forward. The only relevant link that the applicant makes is that the guerrillas said that they knew that he belonged to the Conservative Party. Further at CB 28.2, the applicant states that one of the leaders of the Conservative Party said that the guerrillas already knew of his involvement with the Conservative Party. While there is a reference to a coffee business and to “very good” profits, this was linked to his family:
“In January 1998 we started the business, which was very successful, and we made very good profits, as well as my father, because we bought the coffee from his farm.” (CB 25.9)
The applicant continues in the statement to refer to the guerrillas coming to “our home” and his “father’s farm” (CB 26.3). The Tribunal dealt with these claims. At CB 74.3 it identified the claims as threat of extortion because he was handling money for the purchase of coffee in the coffee business and because he was in the Conservative Party. Even on the most beneficial reading for the applicant, it is clear that this document by itself does not give rise to the need for the Tribunal to consider the existence of the social group as now put forward by the applicant.
2)The applicant further clarified and expanded his claims in a statement to the Tribunal. An English translation of the statement is at CB 52 to CB 54. It is with this document that the applicant makes specific reference to a particular social group. In fact this document can be seen as a submission or supporting argument that the applicant is a member of a social group for the purposes of the Convention, in contrast to the earlier statement which was very much a presentation of circumstances and incidents which the applicant claimed had occurred to him. At CB 52.3 the applicant says:
“My fear of persecution is well founded, if I return to Columbia I will be killed. I have a real chance to be persecuted for a Convention reason if I return to Columbia. I am being persecuted for a Convention reason, I belong to a particular social group, those who are the victims of “guerrilla” groups; the Colombian authorities attribute special characteristics to victims of guerrilla groups, such that we could be said to be a cognisable group in society. Our most relevant feature is that the authorities are unable to give us protection, given the amount of violence that we are being subjected to.”
The applicant reinforces this at CB 53.3:
“I suffer intentional discrimination as I belong to a particular social group, those who are the victims of guerrilla groups, and that discrimination is translated into persecution and constant threats, and the State cannot offer me protection. There, my case falls within the object of the Convention, which is “to provide refuge for those groups who, having lost the de jure or de facto protection of their government, are unwilling to return to the countries of their nationality.”
At CB 52.8 the applicant also says:
“I am also being persecuted because I belong to a particular political group I was an active member of the Conservative Party, and “guerrilla” groups particularly target individuals who belong to this political party, which supports the government.”
This document is very strongly focused on membership of a social group for the purposes of the Convention. As the applicant also states at CB 53.7:
“In my case, when the police said they could not protect me, they were recognising that I belong to a social group, those who are victims of these guerrilla groups, and the authorities cannot effectively protect any of them, including myself.”
While this document is strongly focussed on “social group”, there is nothing in the document itself to suggest a social group of the type now put forward. The applicant’s own description of the relevant group is “victims of guerrilla groups”, and then a reference to a particular political group – the Conservative Party. The Tribunal deals with each of these issues. But even when the two documents are put together the references to “coffee”, “profits” and “extortion” in the first statement do not obviously, with the matters raised in the second, give rise to the existence of the social group as now put forward. The applicant himself in the second statement says “victims of guerrilla groups” and “active member” of the Conservative Party. The references to “coffee”, “profits” and “extortion” in the first statement are clearly an explanation of why the applicant was a victim of the guerrillas. Other than the reference to the friend and partner, there is nothing in the two statements to suggest that there were other businesspersons the nature of whose business generated significant amounts of cash, which increased the risk of extortion. The Tribunal dealt with these circumstances as they arose. How the Tribunal dealt with the claims needs to also be seen in the context of what the applicant said at the hearing before it. I will also deal with that aspect below. But as to the two statements, while the elements of coffee, profits, guerrillas and extortion are mentioned when combining the two statements, there are no circumstances which could be said to give rise to any other social group as now suggested. There is nothing in the documents to suggest that these elements are combined such that there is a commonality with others who were also targeted, as now put forward. The plain reading is that these were individual circumstances relative to the applicant.
1)Relevant to the issue of membership of a social group, the transcript of the hearing before the Tribunal shows:
(i)At T4.8 the applicant said that he went into the coffee business with a friend and that he and the friend were threatened and had to leave the country.
(ii)At T6.4 the applicant said that he was targeted by the guerrillas because of his business, and this business “was moving cash money”.
(iii)At T9.1 the applicant, in explaining why the guerrillas did not kill him on subsequent visits to his house, said that they did not kill him because they wanted money. He explained that “to buy the coffee you have to have cash money” and they wanted the money.
(iv)At T9.8 the applicant says that he was threatened in two ways. The first way, was because he was handling money for purchasing coffee in relation to his coffee business, and secondly, that he was also threatened because he was in the Conservative Party and was helping in the local municipality. That these were the two reasons that the guerrillas were against him. He said:
“I was a member of the Conservative party and I was trying to help the municipality and the community through my membership of the Conservative Party, but it was also because I was in the coffee business, because the coffee business is the business where you are always handling cash money. That is the way that business is done, and therefore the guerrillas who always need money, that is the reason why they were after me.”
(v)At T10.8 in response to the Tribunal's question about needing to come within the definition of refugee, the applicant answered that the Conservative Party is a social group.
(vi)In response to a question from the Tribunal at T11.1, confirming that he feared persecution by reason of his membership of a social group, who were the victims of guerrilla groups, the applicant responded that the Conservative Party is a group dedicated to see that people can progress.
The Tribunal saw the combination of the applicant's claims as fearing extortion by one of the major guerrilla groups active in Columbia, and that in particular he was threatened with extortion because he was handling money for the purchase of coffee in the running of his coffee business, and because he was in the Conservative Party and had been helping in his local municipality. The relevant findings of the Tribunal are:
1)It did not accept that he was threatened by reason of his involvement in the Conservative Party (CB 74.5). It considered that the applicant was targeted because the coffee business was a cash business and the guerrillas therefore believed that he would have cash available to meet their demands (CB 74.8).
2)In relation to membership of a social group, the Tribunal saw this as stated by the applicant himself, as those who are “victims of guerrilla groups”, but found that this was not a particular social group for the purposes of the Refugees Convention, because this group used the fear of persecution, namely the victimisation by guerrillas, to define the group. It relied on the authority of the High Court in the case of Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 242, 263 and 285.
Up to this point there does not appear to be any real dispute between the two parties. Mr. Wigney at the hearing before me made reference to paragraph 18 of the applicant's written submissions and what he described as a “glancing” reference that there was no such ‘Applicant A’ type situation before the Tribunal. It is clear that this reference is in the context of the alleged failure of the Tribunal to look at the real nature of the group that could be said to arise out of the circumstances presented by the applicant. The applicant's position was that the suggested group did not use the persecution feared to define the group, rather it was the shared characteristic of cash producing businesses which defined the group. I will pursue this point below.
Where the parties take issue is with the Tribunal’s statement at CB 75.1 where the Tribunal said:
“I note for the sake of completeness that there is nothing in the evidence before me to suggest, nor was it submitted, that the Applicant fears being persecuted by reason of his membership or any other ‘particular social group’ of the purposes of the Convention such as his family.”
The applicant's position is that the social group which should have been considered, and which arose out of the circumstances presented by the applicant, was that the applicant was a member of a social group comprising those business persons the nature of whose business generated significant quantities of cash which thereby exposed them to an increased risk of extortion. As I have already said, there is no express statement to this effect, nor are there any circumstances presented in the applicant's accompanying statement to his application for a protection visa that would cause the Tribunal to look at membership of a particular social group in this way. While the statement accompanying the application to the Tribunal made specific references to a particular social group, again there is nothing in that statement that should have caused the Tribunal to characterise the social group in the way suggested now by the applicant. There is nothing in that statement that talks about the “cash” or “business” or extortion by the guerrilla group. It is clear that to this point the only possible groups arising from what the applicant has said is, firstly, the group characterised as those who are victims of guerrilla groups, and secondly (“I am also being persecuted” CB 52.9) members of the particular political group, namely the Conservative Party and that guerrilla groups target particular individuals who belong to this political party. The Tribunal clearly dealt with both these issues in its “Findings and Reasons” for its decision. The Tribunal found that it did not accept that the applicant would have been singled out for extortion by reason of his involvement in the Conservative Party. In relation to membership of the particular social group, being the social group as identified by the applicant himself, those who are the victims of guerrilla groups, and in relation to which up until the hearing before the Tribunal was the only possible group that could arise from the circumstances presented by the applicant, the Tribunal found that this group did not bear the requisite connection with one of the five Convention reasons.
Having found that the group as proposed by the applicant, that is those who are victims of guerrilla groups, was not permissible in accordance with the decision of the High Court in ‘Applicant A’, the Tribunal then looked at the applicant's claims in light of the necessary connection that needed to be made with one of the five Convention reasons. The Tribunal considered at CB 75.3 that the applicant was targeted because he had a lot of money in cash as a result of his business and in following “Ram”, that the applicant was therefore perceived by the guerrillas as a “suitable victim”. The Tribunal considered that this was the motivation of the guerrillas in singling out the applicant, and not his political opinion, that is involvement in the Conservative Party, or his membership of any particular social group for the purposes of the Convention, or any other Convention reason. The applicant now argues that in relying on the case of “Ram”, the Tribunal limited the way it looked at the relevant question, and did not answer the relevant question in the terms indicated by the High Court in “Dranichnikov”. I will return to this issue below.
The critical question for this Court then is whether the applicant in the hearing before the Tribunal raised matters, whether in the context of his earlier written statements or beyond these statements, that would give rise to the need for the Tribunal to consider whether there was a social group, namely businesspersons whose businesses generated significant quantities of cash which exposed them to an increased risk of extortion, and to then consider whether the applicant was a member of such a social group. In the hearing before the Tribunal the applicant clearly expanded and explained the matters raised in his earlier statements. Relevantly, the applicant explained his involvement with the family business and the contact with guerrillas who threatened extortion, his going into the coffee business with a friend, and at T6 that the guerrillas were against him because of that business and that this business involved moving cash money. At T9.1 he further explained that to buy coffee you needed to have cash money and that the guerrillas wanted to get that money. Significantly, the applicant's presentation at the hearing before the Tribunal in relation to the cash money, the business, the reference to guerrilla group and extortion, were all presented in the context of the individual harm that he feared and the harm that he feared as impacting on him individually and not as any member of any wider social group. Other than the reference to his friend, who was also involved in the coffee business with him, there is no reference by the applicant, nor is there any other circumstance before the Tribunal to suggest that others were being targeted because they were businessmen in the coffee business with cash.
It is significant that at the hearing before the Tribunal when the Tribunal specifically at T10.3 asked the applicant about the particular social group which he had mentioned in his statement accompanying the application for review as being those who are victims of guerrilla groups, the applicant answers by saying he was sympathising with the Conservative Party and that he was collaborating with the Conservative Party in many meetings. The Tribunal persists with trying to focus the applicant on the membership of the particular social group and asks a question which invites the applicant to comment on his claim to be a member of the particular social group, in addition to his claim of political persecution on the basis of his membership of the Conservative Party. Again the applicant responds that the social group that he belonged to was the Conservative Party. The Tribunal then presses a third question and says:
“In this statement you suggested that the social group you belonged to was those who are victims of guerrilla groups.”
The applicant answers:
“I belonged to the Conservative Party. I sympathised with the Conservative Party and I collaborated and helped the Conservative Party.”
The Tribunal again persists and refers the applicant to the explanation that it gave at the beginning of the hearing about the requirement to come within the definition of refugee and the reference to a membership of the particular social group. Again the applicant's response is revealing:
“The Conservative Party is a social group. The Conservative Party was in Colombia. The Conservative Party is a Party.”
The Tribunal continues to persist with this line of questioning and the references by the applicant again are to the Conservative Party as a group. Finally the Tribunal at T11.2 puts to the applicant that the Australian Courts have said that the persecution which a person fears cannot be used to define a particular social group for the purposes of the Convention and explains that a group which is defined as those who are “victims of guerrilla groups” is being defined by the persecution which is feared. The applicant's response is again that he was afraid because he was persecuted by the guerrillas for the purpose of getting money from him. Again importantly, at about T11.7 in explaining the fear from the guerrillas the applicant says that when the guerrillas threaten, and they do not achieve their objective which is to obtain the payment of the money, then they would kill. The applicant's response clearly suggests that the fear is in terms of those who have fallen victim to the guerrillas as being threatened with death if they did not pay the money. Clearly the group suggested now was never expressly stated or suggested by the applicant, even when specifically invited by the Tribunal to focus on the claimed membership of the claimed social group. Nor significantly, is there any other reference other than the passing reference to the friend who was in the business with him, to any other businessmen in the coffee or other businesses who have lots of cash as a result of that business and therefore became targets of the guerrillas because of that reason. The circumstances stated by the applicant very clearly, and the circumstances arising from his claims, are as the Tribunal found, that he was targeted specifically because he had a lot of money in cash as a result of his business.
The elements and characteristics that distinguish a particular social group for the purposes of the Convention were addressed by the High Court in “Applicant A”. Essentially a particular social group is a collection of persons recognisable as a group in society because the group shares a certain characteristic or element which unites them. Importantly such persons must not only show some common element, the element must unite them, and that is what would lead to them being seen as recognisable group within their society. Dawson J at 241 in “Applicant A” said:
“The adjoining of “social” to “group” suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. The word “particular” in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group. A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart form society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.”
Mc Hugh J at 264-265 said:
“The use of [the term “membership”] in conjunction with “particular social group” connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest, or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular social group. Those immediately killed or robbed by guerrillas, for example, are not a particular social group.”
Gleeson CJ, Gummow and Kirby JJ in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 after reviewing “Applicant A” stated at [36]:
“…the determination of whether a group falls within the definition of “particular social group” in Article 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.”
In the same case at [69] McHugh J said:
“To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim, or principal.”
Further, in “Applicant A”, Gummow J at 285, agreed with the statement in “Ram” [cited as (1995) 57 FCR 565 at 569]:
“There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group.”
It was in this context that the Tribunal, at CB 75.3 said:
“I consider that the Applicant was targeted because, as he said, he had a lot of money in cash as a result of his business. I consider that he was therefore perceived by the guerrillas as a “suitable victim”, to borrow the words used by Burchett J.”
The Tribunal considered that this was the motivation of the guerrillas in singling out the applicant, and not his political opinion (involvement in the Conservative Party) or his membership of any particular social group for the purposes of the Convention. It is clear that the relevant authorities establish that relevant to the group identified by the applicant before the Tribunal, persecutory conduct cannot define a particular social group, and relevant to the group now put forward by the applicant, that there is as stressed in the authorities the necessity of the group being cognisable within the society. That is, that members of the group claimed to be a particular social group must be recognised by some persons, at the very least by the persecutor or persecutors as sharing some kind of connection, or falling under some general classification. Burchett J. in “Ram” at 568-569, explained that if harmful acts are done purely on an individual basis because of what the individual has done or possesses, the application of the Convention is not attracted insofar as it depends upon membership of a particular social group. He referred in that case to the difficulty of seeing “wealthy Punjabis living in circumstances which make them vulnerable to extortion” as a sufficient group. [I should however note that while Nicholson J in that case agreed with Burchett J's reasons for judgement, his Honour observed that in some circumstances the possession of wealth is capable of creating a particular social group (at 570)].
The transcript of the hearing before the Tribunal, for the most part contains the explanation or the attempted explanation of the applicant’s circumstances and in particular the matters relied on by the applicant to assert now that the Tribunal failed to look at the social group of which he was a member arising from the circumstances of his case. Seeing this in the context of what he had earlier put to the Tribunal by way of written statements, it is clear that the applicant made statements that he went into the coffee business, that one needed to have cash money to buy coffee, that the guerrillas wanted to get the money, and that the guerrillas were interested in him to pay them the money. The applicant repeated on a number of occasions that he was afraid because he was persecuted by the guerrillas for the purpose of getting money from him. It is clearly not the role of the Tribunal to seek to make out the case for the applicant. The authorities as applied to the issues before me now, require relevantly that the Tribunal look at the claims as presented by the applicant, and also look at the circumstances that may arise from what is put by the applicant and to see whether a social group can be discerned from these circumstances. On the material before me I cannot see the need for the Tribunal to have proceeded in the way as is now asserted by the applicant. Putting to one side the fact that the applicant never expressly asserted membership of the social group now being advanced, and also putting to one side the applicant's own answers to questions designed to elucidate a social group of which he was a member, as being focused on a different formulation of social groups, what we are clearly left with is an applicant who has raised the fact of the coffee business, the fact of the coffee business requiring large amounts of cash, and the fact of the need of cash by the guerrillas as explaining the circumstances as to why the guerrillas showed an interest in him. There is nothing in the material before the Tribunal to suggest to the Tribunal, or that should have suggested to the Tribunal, that the guerrillas’ interest in the applicant was specifically because he was one of a group of business persons whose business generated significant quantities of cash. It is clear, as Mr. Wigney submitted for the respondent, that all that the applicant was saying at the hearing before the Tribunal was that personally as an individual he was being targeted because he had cash available as a result of his involvement in the coffee business. Clearly he was saying that he was targeted by the guerrillas because he had the cash. I cannot see that there is any implied presentation, or any circumstances arising from what the applicant put to the Tribunal, that would suggest that the guerrillas saw him as one of a number of business persons whose business generated significant quantities of cash. Clearly, as the Tribunal found, it was that this applicant had cash that was the attractor for the guerrillas. There is nothing to show that the attraction was because the applicant was a member of any wider group. It is this individual characteristic that was the basis for the guerrilla’s interest in him. The applicant’s presentation of his evidence at the hearing before the Tribunal, and the context in which the evidence was presented, and his response to the Tribunal's questions is added to this view, shows that this view was clearly open to the Tribunal.
Mr. Archibald also submitted that the Tribunal never asked the applicant whether there were other people in the same category as he was. He specifically referred me to T12 where he says that applicant did refer to others like him:
“Q. The U.S. State Department has said that the guerrilla movement is fragmented and that there’s very little organised co-operation among the various groups which makes it possible for people to escape persecution by moving within the country.
A. That is a lie because I – when I was in the Army I saw the guerrillas were everywhere, they were everywhere, and people are leaving their farms and they are leaving the towns and they are leaving the country.
Q. The information available to me suggests people are leaving the country because of economic problems, not because they fear persecution.
A. The reason the people are leaving the farms and the towns and the municipalities is because of all the guerrilla groups and they are afraid of dying in confrontation with the military and para-military, and because of those confrontations many people die, many people who live in the farms, and that is the reason why they are killed in those confrontations, they have to leave the their farms and they go close to the borders of other countries of Venezuela, Ecuador, Peru, they leave the country. Because they, many like I have to leave because if you try to get ahead, if you have money you have to pay for extortions, for contributions, for vaccination. That was the problem and that was the reason why I had to abandon the country.”
The applicant’s answer clearly provides his view of why people are leaving their farms. The fear of dying in confrontations because of the guerrilla groups, and the fear of extortion by guerrilla groups. Significantly, while there is a reference to “money”, there is no mention of businessmen or coffee businesses. As set out elsewhere in this judgment the Tribunal dealt with those claims as put by the applicant, it dealt with “those who are victims of guerrilla groups.” There is insufficient to say that the applicant’s presentation here gives rise to a cognisable group of businesspersons whose businesses require large amounts of cash money. On the applicant’s account here, in addition to the danger from the confrontation, anyone with money could be a target of extortion, there is nothing to show that this was specific to businesspersons.
As to whether the Tribunal was obliged to ask the applicant whether there were others in a similar position to him, the Tribunal is not obliged to make an applicant's case for him. It is for the applicant to put such material as he wishes, to persuade the Tribunal, so that it could be satisfied as required by s.65 of the Act that he falls within the relevant criteria as set out in s.36(2) of the Act.
The applicant also submits that the applicant’s reference to his friend and partner also having to leave the country because of his participation in a business, constituted the beginning of the formation of the group now put forward. That with two businessmen now claiming to have been threatened that the proper exercise of the Tribunal’s inquisitorial function would have required it to ask the question that Mr. Archibald says now it should have asked. I did not understand Mr. Archibald to be saying that these two constituted a class, as clearly another person in exactly the same circumstances of the applicant would not effect a particular social group, but what Mr. Archibald submitted was that this reference should have caused the Tribunal to make further enquiries, to have specifically asked the question of whether there were other such businessmen. I cannot accept that this reference would have created an obligation on the part of the Tribunal. Firstly, it clearly is for the applicant to make out his case. But even beyond that, a reference to a partner in the exact same circumstances of the applicant does not give rise to the possibility that there are others in similar circumstances. The applicant did not make reference, despite opportunities to do so, to any other businessmen in the coffee business, who had been the subject of extortion by guerrillas. The references to extortion were far more general. Secondly, it was clear on what the applicant was saying that the motivation of the guerrillas was to obtain money. There is nothing in what was said to suggest that the guerrillas would not target other people other than businessmen, who had money. There was nothing about what was said about the guerrillas that made businesspersons the only target of their money demands. The reference to “business” related individually to the applicant and his partner, there was nothing said expressly or arising, that would suggest a need on the part of the Tribunal to make enquiries as to whether there were any other businessmen so affected. The applicant cannot succeed on this argument. The Tribunal looked at the only social group put forward by the applicant himself, or that did arise from the applicant’s circumstances, and found that the suggested group used the persecution feared to define the group and that this was in conflict with the relevant High Court authority.
The applicant also, through Mr. Archibald, sought to rely on a number of High Court cases on the basis that they were of assistance to the applicant's argument:
1)Mr. Archibald referred to the case of “Khawar” and said there were some similarities in that case to the case before me in that there was private persecution and a failure by the State to protect, or be willing to protect the applicant, after complaints made to the police. He argued that this had a ring of resonance with this case because the harm emanated from private sources, that is, not coming from the government, it was coming from the guerrilla group, and the private threat and the lack of effective protection is what the High Court found to be critical in the case of “Khawar”. I put to Mr. Archibald at the hearing before me that I had some difficulty in seeing how this would assist on the point that the applicant was pursuing in this case. In the “Khawar” case, which was authority for the proposition that even though the applicant was persecuted by private individuals, and in that case it was domestic violence that she feared from her husband and members of her husband's family, if the authorities condone or tolerate such action then it could be said that women who are the objects of such a violence from private individuals in circumstances where this is tolerated or condoned by the authorities, then such women could constitute a particular social group. Mr. Archibald's comment that there is some resonance, in that the harm in that case and in the case before me came from private individuals and not from the government is correct in so far as it goes, but the case before me can be clearly distinguished on the basis that the facts pertaining to Mrs Khawar's case were clearly and plainly before the Tribunal and it was in that context that the High Court said that the Tribunal needed to consider it. Further, there was nothing before the Tribunal in the case before me on the issue of whether the authorities would tolerate or condone any such harm in the way as found to occur in the case of Mrs. Khawar.
2)Mr. Archibald also submitted that the case of “Dranichnikov” supported the submission that the Tribunal did not ask itself the first question that it needs to ask, namely to determine whether there is a group or class to which an applicant may belong. To the extent that the Court held in that case that the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention, then this is not really in dispute between the parties, and to that extent Mr. Archibald’s submission is correct. But the circumstances of “Dranichnikov” do not support the critical part of the submission of the applicant, and that is that there were circumstances in what he had presented to the Tribunal which should have caused the Tribunal to ask itself the correct first question. In “Dranichnikov” the Tribunal was in error because the High Court held that it should have decided the matter which was put to it, and that is that the applicant was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law-enforcement authorities of failing to take action against crime or criminals. This was the case that had been expressly put by the applicant. The Tribunal however looked at the applicant’s claim in terms of a broader class, that is businessmen in Russia. In the case before me there is nothing before me to show that the applicant expressly put his membership of a social group in the way as put expressly by the applicant in “Dranichnikov”.
3)Similarly in the case of “S395” the Tribunal took a clear claim by the applicant, namely that he was a homosexual, and that homosexuals were subject to persecution in Bangladesh at the hands of the authorities, (clearly the particular social group was homosexuals in Bangladesh) and divided the social group into two groups being homosexuals who lived discreetly, and homosexuals who do not. It was the expectation on the part of the Tribunal that an applicant for refugee status, in the group who were expected to live discreetly and could be said to be expected to live discreetly, which led the majority of the Court to find error on the part of the Tribunal. This case also does not assist the applicant.
In the case before me, on the issue of the membership of a social group, it is clear that the Tribunal dealt with the applicant's claims as put by the applicant himself. It clearly found that the membership of the social group that the applicant claimed, that is those who are “victims of guerrilla groups”, was in conflict with High Court authority and in my view correctly found that there was no other particular social group for the purposes of the Convention arising out of what had been presented to it either expressly or implicitly. The applicant did not succeed before the Tribunal because of the view that the Tribunal took that he was targeted by the guerrillas as a result of the cash that he had from his business, that this was the motivation of the guerrillas in singling out the applicant and that this did not come within any of the five Convention reasons. This finding was clearly open to the Tribunal on the material before it and I can see no error in how the Tribunal has approached its task in this way.
The applicant's second ground as stated in the amended application is that the Tribunal made a finding that the applicant was not singled out for extortion by reason of his involvement with the Conservative Party, but that the Tribunal failed to consider that the applicant's involvement with the Conservative Party, which was the political opponent of the guerrilla group from which he feared harm, whether the applicant's involvement with the Conservative Party increased or accentuated the risk of persecution. The applicant’s written submissions do not appear to address this ground directly, but at the hearing before me Mr. Archibald for the applicant submitted that the Tribunal divided up the applicant's various claims and in particular did not consider the link between the involvement with the Conservative Party in respect of which he said there was not an adverse finding, and the extortion by the guerrilla group. The context being that the applicant had a profile as a Conservative Party person and was perceived to be in a business which had lots of cash and that he suffered this extortion threat as a result of both of these factors. Mr. Archibald submitted that there was an error on the part of the Tribunal in not looking at these circumstances as a whole and the connection between the two.
Again in looking at the claims as put by the applicant, in his statement attached to his application for review, the applicant clearly claimed that he belong to a particular social group. That is, those who are victims of guerrilla groups, and then said that he was also being persecuted because he belonged to a particular political group being the Conservative Party and that guerrilla groups particularly target individuals who belong to this particular party (CB 52.9). At the hearing before the Tribunal the applicant clearly put that he had been involved in the Conservative Party, and that he had been involved in the election of a local councillor. It is also clear that the applicant emphasised that his fear arose out of the guerrillas demanding money because of his cash situation relating to his coffee business. At T9.8 the Tribunal put the following question to the applicant:
“You understand that I have a little difficulty with the fact that you say you were threatened because you were a member of the Conservative Party when in fact President Pastrana is the Conservative Party President and was involved in peace talks with Fark.”
The applicant responded that:
“I was threatened in two ways. The first place I was threatened because I was handling money. I was handling money for purchasing coffee of my coffee business, and also because I was in the Conservative Party and I was helping the municipality of Santuario and the guerrilla were against me on those two counts. I was a member of the Conservative Party and I was trying to help the municipality and the community through my membership of the Conservative Party, but it was also because I was in the coffee business, because the coffee business is the business where you are always handling cash money. That is the way that business is done, and therefore the guerrillas who always need money, that was a reason why they were after me. They wanted money and its hard enough work and working for them just to give them the money was very hard. And the guerrillas interested in me paying them the money. They were interested in me paying them the money and I continued with my business and they pressured me and pressured me so much that in the month of September I abandoned everything, I abandoned the municipality, and I knew that I had to do that because if not they would kill me or they would kidnap me.”
It is clear that the significant part of the applicant's claim was that he was attractive to the guerrilla group because he had ready cash to hand. Mr. Archibald agreed that this was the primary claim put by the applicant. Nonetheless, Mr. Archibald submitted that while the membership of the Conservative Party was not a major component of the fear of persecution, nevertheless it was there and that the error of the Tribunal was that it dealt with these two issues separately. Mr. Archibald used the words “hived off” the political activist claim and submitted that the Tribunal did not consider the claim of the political activity combined with the business to give the applicant the characteristics of membership of the particular social group for the purposes of the Convention. As I put to Mr. Archibald at the hearing before me, I had some difficulty in accepting the argument that he was putting. It is clear that the applicant said that he had been involved with the Conservative Party. The Tribunal however clearly found and it did not accept that the applicant would have been singled out for extortion by reason of his involvement in the Conservative Party. At CB 74.8 the Tribunal found that the applicant was targeted because the coffee business was a cash business and the guerrillas therefore believed that he would have cash available to meet their demands. The Tribunal did deal at CB 74.3 with the applicant's claim that he was threatened with extortion by the guerrillas because he had money for the purchase of coffee in the coffee business and because he was in the Conservative Party and had been helping in the municipality. Significantly, in answer to ground 2, in the same sentence and the following paragraph in its decision record the Tribunal deals with the two claims in conjunction. The Tribunal’s analysis was that it did not accept that he had been threatened by reason of his involvement in the Conservative Party and the reason that it gave was that although the applicant had said that he had been involved in the party for many years there was no claim that the guerrillas made any demand on him up until after he had established his business in buying and selling coffee. Presumably when he would have been seen to have had cash available. The Tribunal also gave reasons as to why it did not accept that the applicant would have been singled out for extortion by reason of his involvement in the Conservative Party at this time. Having considered both limbs of the applicant's claims in this regard the Tribunal clearly found, with reasons given, that the applicant was targeted because the coffee business was a cash business and the guerrillas believed that he would have cash available to meet their demands. Mr. Archibald submissions now that the Tribunal did not look at these two aspects of the applicant's claims in a holistic way is clearly contradicted by what the Tribunal has done in the second paragraph at CB 74. It correctly stated the applicant's two aspects of his claim identified that the harm feared by the guerrillas in relation to the one aspect being the Conservative Party was not the reason that he was singled out for extortion and then found that the reason for the targeting for extortion was the aspect dealing with the cash in the coffee business. It is clear that as both parties have submitted that there were two separate and distinct claims made by the applicant of the Conservative Party and the cash business, but it is also clear that the Tribunal approached these claims in a way that clearly showed the Tribunal was mindful of the relationship between the two. These findings are all open to the Tribunal on the material before it and the Tribunal gave reasons for these findings. I can see no error in how the Tribunal has approached this aspect of its task.
The applicant's third ground is that in making a finding that the applicant would be able to relocate safely elsewhere within Colombia the Tribunal fell into jurisdictional error in failing to consider other elements of persecution and serious harm within the meaning of s.91R of the Migration Act. This is particularised by the statement that the Tribunal failed to take into account the country conditions for displaced persons as described in the independent country information. At the hearing before me Mr. Archibald, further particularised this ground with reference to CB 122, which is a copy of a “US Committee for Refugees Country Report 2000”. He argued that at CB 124 under the heading of “Conditions for the Displaced” the report says:
“Most displaced Colombians live in poor conditions. UNHCR reports that the displaced evidence “moderate and even acute malnutrition” and that the “absence of the most basic shelter is widespread”. Most displaced children, perhaps 75% did not attend school in 1999.”
The applicant argues that the report refers to serious harm suffered by the displaced in Colombia and that as this was reported in evidence referred to by the Tribunal it was a mandatory consideration for the Tribunal to take this into account when making its findings on relocation. In written submissions of the applicant relies on Bhupinder Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1014, and says that in that case the applicant's claims were that he had a well-founded fear of persecution by the Indian authorities generally, and that the Tribunal accepted that at least in some part of the country his fear was well-founded. The Court in that case held that the Tribunal fell into error by determining the question of the risk of persecution by asking whether it would be reasonable for him to relocate and not by addressing in a correct manner the question as to whether the applicant's fear of persecution was well-founded. Mr. Archibald referred me to that part of Mansfield J’s judgement at [30] where the Court said that the relocation principle becomes relevant where a putative refugee is found to have a well-founded fear of persecution for a Convention reason in respect of a region only of the country of nationality. I was also referred to the decision in Al-Amidi v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 177 ALR 506. In that case the Court found error on the part of the Tribunal in that the Tribunal stated it was not necessary to determine the real chance of persecution in southern Iraq because the applicant could safely relocate to northern Iraq. The Court said that there was ample material to support a finding that the applicant had a well-founded fear in south Iraq.
In the case before me, having found that the applicant did not have a well-founded fear of persecution for a Convention reason in his local area based on the case as put by the applicant, it was not necessary for the Tribunal to go on and consider the issue of relocation. The case before me can be distinguished from the cases referred to by the applicant in submissions on the basis that in both of those cases, the respective Tribunals, in the case of “Bhupinder Singh” implicitly accepted, and in the case of “Al-Amidy” should have found, that at least in some part of the country the applicant's fears were well-founded. There is no such finding in the case before me. In fact, very clearly the Tribunal found the opposite. Therefore, even if the applicant could point to some error in the Tribunal's analysis of the issue of relocation it would not affect the central finding that the applicant did not satisfy the Tribunal that the harm feared anywhere in the country was for a Convention reason. However, in looking at how the Tribunal approached the issue of relocation there is quite often, as Mr. Wigney submitted, a large amount of country information before a Tribunal. What the Tribunal ultimately accepts is of course a matter for the Tribunal. It is difficult to see how the specific material relating to conditions for displaced Colombians was relevant to the applicant’s circumstances, particularly in a situation where the applicant had moved to, and lived in Medellin (another part of Columbia) from September 1998 until February 1999, and did not provide any evidence to the Tribunal that he lived in the kind of distressed circumstances as outlined in this one part of the “US Country Report for 2000”. This is not a situation where the Tribunal has failed to take into account a relevant consideration as put by the applicant. In fact it is clear from the transcript of the hearing before the Tribunal that the applicant's concerns about moving around to other parts of Colombia, as indeed he said his parents and sister were now doing, did not relate to the matters now pointed to by Mr. Archibald in the “US Report”, that is, to issues of destitution, but related directly to fears that the guerrillas would still be a threat no matter where the applicant moved to in Colombia. It is clear that in looking at the issue of relocation the Tribunal correctly referred to the test as set out in Randhawa v Minister for Immigration (1994) 124 ALR 265. At CB 76.1 the Tribunal looked at a number of relevant factors to assist in determining whether the relocation was reasonable. While I can see no obligation on the Tribunal to make any specific reference to the particular country material raised by the applicant's Counsel now, the Tribunal in any event did properly consider whether it would be safe for the applicant to move to another part of Colombia, and importantly whether it would be reasonable in all the circumstances to expect the applicant to relocate elsewhere. I can see no error in how the Tribunal has approached this aspect of its work. Further, the Tribunal specifically found at CB 75.5 that the applicant’s fears, even if the Tribunal had found that such fears were well-founded, were related to his local area. That is, that it was a cash business which was the attractor for the guerrillas claiming money from him. The Tribunal made specific reference to the fact that the applicant had resided in Medellin between September 1998 and February 1999 without incident and then found that it did not accept that he would not have been able to find safety from the guerrillas who threatened him, elsewhere within Colombia (CB 75.5). All these findings in relation to the issue of relocation were open to the Tribunal to make on the material before it and it gave reasons. I cannot see that it did not approach this issue as set out in the relevant authority of Randhawa.
Mr. Archibald for the applicant at the hearing before me indicated that the applicant would not be pressing ground four.
None of the grounds pressed by the applicant can be made out. I can see no jurisdictional error made by the Tribunal in the manner put by the applicant's Counsel, nor has Counsel put any other basis for intervention by this Court. The Tribunal clearly dealt with the applicant's claims as put by the applicant, and found that the fear of harm was not for a Convention reason. This was open to the Tribunal to make on the material before it. I can see no error in this, nor can I see any error in the Tribunal's findings on the reasonableness of relocation within Colombia, even though the Tribunal was in the circumstances not required to go on and consider this issue. Having done so with or without error, this consideration and the findings do not affect the central and critical finding by the Tribunal that the applicant's fear of harm was not for any Convention reason. The decision therefore is a privative clause decision and as the application for review was filed well outside the time limit as set out in set s.477(1A) of the Migration Act the respondent's Notice of Objection to Competency is upheld and the application is dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 11 July 2005
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