SZHAD v Minister for Immigration - [2006] FMCA 94

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHAD v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 94

MIGRATION – Review of decision by Refugee Review Tribunal – failure by Tribunal to address claim by applicant – failure by Tribunal to consider relevant material – integers of claim – jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044
Htun v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1802
Minister for Immigration and Multicultural and Indigenous AffairsvYusuf (2001) 180 ALR 1
Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24
NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263

Applicant:

SZHAD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2342 of 2005

Judgment of:

Emmett FM

Hearing date:

16 December 2005

Date of Last Submission:

16 December 2005

Delivered at:

Sydney

Delivered on:

30 January 2006

REPRESENTATION

Senior Counsel for the Applicant:

Dr J. Griffiths

Junior Counsel for the Applicant:

Mr C. Bova

Counsel for the Respondent:

Mr G. Johnson

Solicitors for the Respondent:

Ms H. Dejean, Australian Government Solicitor

ORDERS

The decision of the Refugee Review Tribunal made on 19 December 2000 and handed down on17 January 2001 be set aside.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the application before it according to law.
First Respondent to pay the Applicant’s costs in an amount of $8000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2342 of 2005

SZHAD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The Applicant is a 37 year old man who claims to be a citizen of Colombia.
The Applicant arrived in Australia on 15 April 2000, having departed Colombia from El Dorado using a passport issued in his own name.
On 30 May 2000, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The applicant has a wife and son born 1 July 1997 who continue to reside in Colombia.
In his protection visa application, the Applicant claimed that if he returns to Colombia he will be killed by the guerrillas of the Revolutionary Armed Forces (“FARC”) in Colombia due to the Applicant involvement in representing Colombia in an international sports event which allegedly goes against FARC ideology. Further, the Applicant claimed that FARC is targeting him and his family because one of his brothers and three of his cousins were members of FARC.
On 13 June 2000, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 29 June 2000, the Applicant filed an application for review before the Tribunal.
The Applicant was joined by another applicant (“the brother) to the Tribunal proceedings which was his brother. Both brothers lodged separate applications to the Delegate and the Tribunal. The brothers rely on many common claims and attended a joint Tribunal hearing on 27 October 2000.
On 17 January 2001, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 24 August 2005, the Applicant in these proceedings filed an application in this Court seeking judicial review of the Tribunal’s decision.
By consent, at the hearing before this Court on 16 December 2005, the Applicant was granted leave to file an amended application upon which he relies.

Legislative framework

Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a 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.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

The Applicant attended the Tribunal hearing on 27 October 2000 and gave oral evidence. The hearing was conducted with the assistance of a Spanish-English medium interpreter.
The Applicant claimed that he feared injury or murder from FARC. The Applicant’s fears of persecution in Colombia by this group, was based on the following Convention-related reasons, being:
“political opinion” (their brother’s betrayal of a political insurgency group) and of “membership of a particular social group” (the family of their brother)”.
The Applicant and his brother claimed that they have no relatives residing outside of Antioquia, except for two brothers who have sought refuge in Ecuador.
The Applicant claimed that his younger brother and three of their first cousins fell under the influence of FARC and joined the organisation. The Tribunal accepted this claim.
The Applicant claimed that the cousin who first joined FARC was murdered by FARC assassins in early 1998. The Applicant suspects that his cousin was murdered for betraying FARC. The Tribunal found this claim to be plausible.
The Applicant informed the Tribunal that, following this murder, his younger brother and remaining cousins then deserted FARC. In May 1999, FARC allegedly killed one of the two remaining cousins and shot the Applicant’s younger brother in the back of the leg. The Tribunal accepted these claims.
After being shot, the Applicant’s younger brother was hospitalised and reported his attack by FARC members to the police. The police advised that they could not assist with the matter as it involved FARC and was therefore a matter for the Army. Subsequently the Applicant’s younger brother became a government informer (“the informant brother”).
The Applicant and another brother, who came to Australia with the Applicant, informed the Tribunal that at this stage they both feared for their lives and embraced the opportunity to leave Colombia by representing their country in an international sporting event held in Australia in April 2000.
The Applicant and his brother informed the Tribunal that their fears worsened upon learning that, on 22 May 2000, their remaining cousin was shot dead by FARC assassins. The Applicant and his brother believed that this cousin was also targeted and killed for deserting the ranks of FARC. The Tribunal accepted this claim.
The Applicant informed the Tribunal that his informant brother went into exile in Ecuador approximately three months prior to the Tribunal hearing.
The Applicant claimed that he believed that the informant brother’s betrayal of FARC is viewed by that organisation as an act of political defiance punishable by death. According to the Applicant and his brother, this factor was evidenced by the murder of the two cousins. The Applicant and his brother claim that these killings and related serious harm is persecution for reasons of political opinion. The Tribunal accepted that desertion of FARC may be regarded by that organisation as a “manifestation of a political opinion against it” and therefore accepted the Applicant’s claim. Further, the Tribunal accepted that, if FARC were aware of the Applicant’s younger brother’s role as a government informer, this would also amount to“manifestation of a political opinion”.
The Applicant claimed that FARC would ensure that the Applicant would be murdered because of his actual or imputed political opinion and/or by way of his association and links with the informant brother. The Applicant claimed that their whole family was implicated in FARC’s political vendetta.
Whilst the Applicant claimed that he and his family were verbally threatened in Colombia with elimination by FARC, these threats had not occurred for part of 1999 and the three months of 2000 preceding the Applicant’s departure for Australia.
Further, the Tribunal noted that prior to leaving for Australia, the Applicant remained at his usual residential address in Antioquia. This was the same address where the Applicant claimed he had received verbal death threats by FARC.
The Tribunal found that no other immediate family members had been harmed except for the Applicant’s informant brother, who was harmed in May 1999.
The Tribunal found it strange that FARC would make empty threats against the Applicant and his family in view of the independent information before it, which indicated that the FARC were involved in summary violence, including mass killings and eradication of entire families.
The Tribunal found that it was quite out of character for FARC to deliver orally empty threats when they are a group notorious for shooting first and questioning later. The Tribunal surmised that either FARC were making empty threats, which it found was unlikely considering the offence of the informant brother, or, alternatively, the Applicant and his brother were exaggerating this part of their evidence.
The Applicant and his brother both have wives and children remaining in Antioquia. These immediate family members have not been harmed by FARC before or after the Applicant and his brother arrived in Australia. However, the Applicant and his brother did claim that the politician who had assisted them with funding for their trip to Australia, in return for political support from the Applicant and his brother, had since been kidnapped. Whilst the Tribunal found this claim was plausible, it did not find that the Applicant or his brother provided a persuasive link between this kidnapping and their own position with FARC.
The Tribunal found that the Applicant did not have sufficient fear of FARC to cause him to quit his job, flee his usual addresses or overcome a preference to live near relatives.
Whilst the Tribunal found that the fear of persecution felt by the Applicant and his brother may be genuine, and may have escalated, since arriving in Australia, with the death of a cousin and the exile of the Applicant’s informant brother, the Applicant had failed to satisfactorily argue why relocation in Colombia was not an option, and, further, why the majority of his immediate family was still residing in Antioquia.
The Tribunal accepted that the Applicant is a Colombian citizen who is concerned to some degree with the betrayal of FARC by his informant brother.
The Tribunal accepted that members of FARC may have wanted to kill the Applicant’s informant brother and may still wish to do so. The Tribunal accepted that this is the reason why the Applicant’s informant brother is now in exile in Ecuador.
The Tribunal accepted the Convention grounds claimed, being, “political opinion” based on the Applicant’s informant brother’s opinion and with which it accepted the Applicant has been tainted; and “membership of a particular social group”, being the family of the informant brother, who may be viewed as having assisted the informant brother, in particular, after his betrayal of FARC. However, the Tribunal had difficulty accepting that there is “sufficient evidence of a real chance” that the Applicant would be persecuted for “either” of these reasons
On the evidence before it, the Tribunal was troubled about the Applicant claiming serious fear for not taking any substantial action for such a lengthy period of time to alter his lifestyle or domicile since 1998, when the first cousin was killed.
The Tribunal noted that the Applicant failed to act on this situation until he received a sporting invitation to travel to Australia.
The Tribunal had regard to the fact that that the Applicant and the brother, who came to Australia with him, remained in their usual homes in Antioquia and continued their employment in spite of an alleged open declaration of war by FARC on the family. This evidence led the Tribunal to believe that it was unlikely that the Applicant or his brother were sufficiently afraid of FARC persecuting them, as they had failed to do anything about moving away for a substantial time. The Tribunal found this factor highly relevant to the well-foundedness of the Applicant’s claimed fear. The Tribunal found that the Applicant “lacked subjective fear of persecution for a significant period”.
The Tribunal did not accept that that the Applicant and his brother came to Australia, as recently as they did, leaving their families behind, to escape being harmed by FARC.
However, the Tribunal did accept that it needed to look at the situation anew in light of the claim about the most recent murder of the Applicant’s cousin, and the reaction of the informant brother in moving to Ecuador.
The Tribunal found that these events demonstrated an escalation in FARC’s response to the Applicant’s informant brother. However, the Tribunal could not find any evidence to suggest that FARC was trying to hurt the Applicant’s informant brother or family members.
Further, the Tribunal concluded that FARC was not really after the Applicant. The Tribunal found that FARC was very specific in their targets, consisting of the Applicant’s informant brother and the three cousins.
The Tribunal concluded that, whilst the Applicant’s fear of persecution may be sincere, there is no real chance of it occurring even if he were to remain in Colombia.
Further, the Tribunal considered if it was wrong in its conclusion and if the threat of persecution to the Applicant was greater than that found by the Tribunal. The Tribunal concluded that the Applicant had not properly explored or attempted relocation within Colombia, and had failed to provide sufficient reasons for not pursuing this option. Therefore, the Tribunal concluded that the Applicant and his brother had insufficient reason not to relocate to other parts of Colombia or Ecuador.

The proceeding before this Court

The Applicant was represented by counsel, Dr John Griffiths SC and Mr Christian Bova, and the Court is grateful for their pro-bono appearance.
By consent, the Applicant relied on an amended application filed on

15 November 2005 which identified 4 grounds of review. Grounds 2 and 3 related to the relocation issue considered by the Tribunal. It is common ground that the Tribunal misapplied the test for relocation and also erred in finding that effective protection is available to the Applicant in Ecuador in circumstances where there was no evidence to suggest that the Applicant had a right of entry into Ecuador. For those reasons, neither party addressed on either of those grounds.
Further, both parties proceeded before this Court on the basis that, having regard to the strength of the Tribunal’s finding that the Applicant did not have a well founded fear of persecution, that it was unnecessary for the Tribunal to consider the “what if I were wrong” test. Nor, was it necessary for the Tribunal, in the light of its findings, to consider the question of relocation.
The issue between the parties relates to whether or not the Tribunal’s decision is affected by jurisdictional error on either or both of the following 2 grounds:
1.That the Tribunal failed to have regard to relevant material in considering whether the Applicant had a well founded fear of persecution.
2.That the Tribunal decision was irrational, illogical or unreasonable or made findings which have no probative evidence to support them.
Those grounds are dealt with below.

Ground 1 - That the Tribunal failed to have regard to relevant material in considering whether the Applicant had a well founded fear of persecution

This ground is based on 4 areas of material identified by the Applicant as having been overlooked and ignored by the Tribunal in consideration of the Applicant’s claims. They are as follows:
a.Evidence and material to the effect that the Applicant and his relatives, including his parents, had changed addresses and taken other practical steps to avoid being harmed by FARC;
b.Evidence concerning the role played by the Applicant and some of his brothers in persuading the brother who had been a member of FARC to provide valuable intelligence to the Colombian army concerning FARC, with the consequence that FARQ conducted a vendetta against, not only the informant brother, but also the brothers who had influenced him to become an informer;
c.Evidence that FARC had threatened the whole family, including the Applicant;
d.The fact that, after having arrived in Australia, the Applicant learnt that FARC had murdered his surviving cousin and was looking for all his family and 2 of his brothers, including the informer, had fled to Ecuador to escape FARC.
The Applicant tendered a transcript of the Tribunal hearing and it took the Court to references to the transcript relating to (a) to (d) above. One of the Applicant’s brothers was also an applicant before the Tribunal but is not a party before this Court.

(a) The Tribunal overlooked and ignored evidence and material to the effect that the Applicant and his relatives, including his parents, had changed addresses and taken other practical steps to avoid being harmed by FARC

In relation to (a), the Applicant’s brother gave evidence before the Tribunal that two other brothers, including the informant brother, are in Ecuador, he and the Applicant are in Australia and the youngest brother is staying with some sisters who are married. The evidence was that the youngest brother goes home one day to stay with one sister and another day to stay with another sister and sometimes lives with a nun. The Applicant’s brother said that these residences are in Copacabana. The Applicant’s brother gave evidence that the youngest brother moves between his sisters and the nun because he is frightened of members of FARC. The Applicant’s brother gave evidence that his sisters were not as well known as the brothers because they are married women. They work in their houses and are not treated the same as the brothers. The brother gave evidence that the Applicant lives in Copacabana in the Antioquia area with his wife in a different house to the Applicant’s brother who gave evidence.
The Applicant’s brother also gave evidence that their mother left the family home and went to the house of another member of the family after FARC came to the house looking for her sons and started shooting. The Applicant’s brother said that, after this incident, the parents left the house and rented another house in Copacabana.

The Applicant gave evidence that, at the time the informant brother left FARC, he was living with his wife’s brother in Medellin in a suburb called Laurulen. He said that he lived there around 3 months. After that time, the Applicant said that he lived with his mother so that he could take care of the business for his mother and because of the problems that arose after his brother left FARC. The Applicant said that his brother in law’s house, where he lived with his wife, was in Copacabana. The Applicant gave evidence that he built a house at the end of 1997 for himself and his wife and commenced to live there in 1998. He stated that, when his brother left FARC, they began to receive telephone threats and became frightened, so the Applicant slept at his mother’s house and then moved to his brother-in-law’s house in January/February 1999.
The Applicant also gave evidence that, after he left Columbia, his wife went to live in another city. He said that she left her job in Copacabana and went to live with another sister in Laurulen, where she presently lives. He stated that she is living there with another of her sisters in law.
The Tribunal put to the Applicant that perhaps FARC’s anger did not extend to the rest of the family, in circumstances where the rest of the family had been able to survive, even though they lived in FARC influenced areas. The Applicant responded that, after his brother was attacked and his cousins killed, the family sought protection from the police who said that the army was responsible for combating aggression by FARC.
The Tribunal put again to the Applicant that, “[T]he question is you still survived for many months before coming to Australia whilst still living in the area in which FARC was operating.” The Tribunal noted that a reasonable person might ask how difficult is it to survive in that area if FARC has not already got you. The Applicant responded, “[W]e were in hiding. We didn’t really see people face to face.” The Applicant went on to say that the telephone calls made to his mother’s house were of threats that they were going to finish the whole family. The Applicant then stated that they were forced to start finding other places to live because FARC had discovered where they were. For those reasons, they went to other relatives.
The Applicant also said that he stopped going to work at the family grocery business and he bought things over the telephone in accordance with notes given by his mother. The Applicant said that the business had to stop operating face to face after FARC members came to their house looking for the Applicant and his brothers.
It is this evidence that is relied upon by the Applicant at this hearing as being evidence of steps taken in self protection, namely, the movement between residences of the Applicant and his relatives, including his parents, going into hiding and conducting business over the telephone rather than face to face. The Applicant contends that this evidence was ignored by the Tribunal.
The Tribunal, in the Claims and Evidence section of its decision, noted that, “the whole of the applicants’ immediate family has continued to reside in the Antioquia region until, of course, the applicants themselves came to Australia and [the informant brother] moved to Ecuador.”
The Tribunal went on to note, “up to the time they left, the applicants remained in their usual addresses in Antioquia, addresses where they claim they and other family members were approached by FARC and delivered verbal death threats.”
The Tribunal noted that both the Applicant and the brother who came to Australia with the Applicant have wives and children in Antioquia and noted that the Applicant said that he “hid in his home region”.
The Tribunal noted that it had put to the Applicant that he continued to work in the family’s grocery business until he came to Australia and that the Applicant had responded that he was the buyer for the business but said he did not deal with people face to face.
The Tribunal also noted that it was not satisfied with the explanations as to why the majority of the Applicant’s immediate family members were still living where they usually lived.
In the Findings and Reasons section of its decision, the Tribunal noted that it remained “particularly troubled” about the Applicant and the Applicant’s brother claiming serious fear for their lives, yet “having done nothing substantial” since early 1998 to “alter their lifestyle or domicile”, until they received an invitation in respect of a sporting event in 2000 in Australia.
The Tribunal noted that it was “unable to ignore the fact that the applicants remained in their usual homes in their home region, continuing their jobs, one of them still helping to run a family business after FARC’s war on them had already supposedly been declared.”
It was these findings of the Tribunal that led it to conclude that the Applicant’s claim of fear of persecution was not well founded, in that the Tribunal regarded the Applicant as having “lacked subjective fear of persecution for a significant period.”
The Applicant submits that the Tribunal’s findings in respect of these claims are inconsistent with the oral evidence given by the Applicant and the evidence of his brother. The Applicant said in oral evidence “we were in hiding we didn’t really see people face to face and I immediately realised the problems we had. I personally received telephone threats and they telephoned my mother’s house that they were going to finish the whole family and so then we were forced to start finding other places to live because they had already located where we were so we had to go to other relatives.”
The First Respondent submits that the findings were open to the Tribunal on the material before it. Otherwise, the First Respondent submits that any error in the fact finding of the Tribunal is not jurisdictional error.
A fair reading of the decision makes it clear that the Tribunal found that the Applicant did not move “from [his] usual home in [his] home region”, did not alter his “lifestyle or domicile” and continued his job in the grocery business, albeit it on the telephone rather than face to face. The Tribunal found that these facts were not sufficient to cause it to be satisfied that the Applicant was sufficiently afraid of persecution by FARC, as he did nothing about moving away until he was invited to an international sporting meet in Australia in early 2000.
Reading the Tribunal decision as a whole, it is clear that the Tribunal understood the nature of the claims being made by the Applicant in relation to his hiding in his home region and his change in the way in which he worked in the family grocery business, in that he conducted business over the phone rather than face to face, following the incident of attack by FARC on his home.
The Applicant’s own evidence makes it clear that the homes, among which he moved, were those of family members and that there was no suggestion that those family members into whose homes he moved chose themselves to move. Moreover, the evidence before the Tribunal from the Applicant was that such homes were all in the Applicant’s “home region”.
A fair reading of a Tribunal decision makes it clear that the Tribunal understood the Applicant’s claims in respect of the change in how he operated the family business from dealings face to face to dealings by telephone. However, the Tribunal’s finding that he was “still helping to run the family business”, in the context of the whole of the Tribunal decision where it repeats the Applicant’s change in conduct from face to face to telephone, was a finding of fact open to the Tribunal on the material before it, unless one was to apply an eye keenly attuned to error. To do so is not the proper manner in which to approach judicial review of a tribunal’s decision. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 and Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]) .
Further, the Applicant submits that these facts amount to an integer of a claim ignored by the Tribunal thereby, amounting to jurisdictional error.
As stated by the Federal Court of Australia in Htun v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1802 at [42] in referring to Minister for Immigration and Multicultural and Indigenous AffairsvYusuf (2001) 180 ALR 1 (“Yusuf”) and Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 (“Peko Wallsend”):
“The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration.”
In Yusuf, at 53, Callinan J stated as follows:
“A particular fact may assist, together with other facts, a decision maker to reach a decision. The decision might still, in the circumstances have been reached absent one or more material facts which the decision maker has relied on for a decision, or referred to in the reasons for it. But as to whether certain facts are material, the extent to which they are or are not material will depend upon how much weight the decision maker thinks should be placed upon them.”
However, the Applicant’s claim is that he feared persecution from FARC, by reason of his imputed political opinion or membership of a particular social group, for influencing his brother to leave FARC and co-operate with the authorities. The Applicant submits that an integer of the claim is whether or not his fear was well founded. He claims that moving house, remaining in hiding and changing his business practice are the evidence upon which he relies in relation to that integer.
In my view, the Tribunal properly considered the evidence. It is clear, on a fair reading of the Tribunal decision, that it understood the Applicant’s claim to be that the Applicant did not remain in the same residence, but that he moved to homes of various family members. However, what was relevant to the Tribunal was that his moves to other residences of other family members were all in the Applicant’s home region.
In relation to the Applicant’s claim of having to change the way he assisted with the family business the Tribunal made it clear that, what weighed on its mind, was the fact that he was still helping run the family business at all. Those findings of the Tribunal were open to it on the material and evidence before it. The Tribunal made clear the evidence of the Applicant to which it had regard and the weight it placed upon that evidence.
Accordingly, this ground is not made out.

(b) The Tribunal overlooked and ignored evidence concerning the role played by the Applicant and some of his brothers in persuading the brother who had been a member of FARC to provide valuable intelligence to the Colombian army concerning FARC, with the consequence that FARC conducted a vendetta against not only the brother who was the ex member but also the brothers who had influenced him to become an informer

I understand this ground to relate to a claim that the Tribunal did not consider the Applicant’s claim that he, with other brothers, influenced the informant brother to leave FARC and become an army informant and that FARC was aware, or reasonably likely to be aware, of the Applicant’s conduct. The Applicant’s claim with respect to this ground is referred to in the transcript in the following terms:
“Before we came here we received threats saying that they were going to kill us, that they were going to kill the whole family. Our fears became stronger when [the informant brother] informed them of the areas where the FARC and they also realised that [the other applicant brother] and myself and also our eldest brothers have also influenced him, Arethio to tell the truth and that’s when they started taking action against all of us.”
There was some debate at the hearing as to the identity of “Arethio”. The Applicant submitted that it was a reference to the Applicant’s older brother Aurelio. The First Respondent did not have instructions to concede that point.
I am satisfied that the reference to “Arethio” in the transcript, which was uncorrected by either the Applicant or the First Respondent, is a reference to the Applicant’s older brother Aurelio. I am reinforced in that view because of evidence of the Applicant, given shortly before this evidence where he said that, when he arrived at the hospital after his brother had been shot, the other applicant brother “was already there with another brother of mine, Arelia”. The name “Arelia” is also uncorrected, but there is no contention by either party that it refers to any one other than Aurelio.
The Tribunal, in the Claims and Evidence section of its decision, noted that the informant brother was hospitalised and became a government informer. It also noted that the Applicant claimed that his brother’s betrayal of FARC is viewed by FARC as an act of political defiance punishable by death, as evidenced by the murder of the two cousins.
The Applicant claimed that these killings and any harm of a serious nature that may follow should be regarded as persecution for reasons of political opinion.
The Tribunal noted that it accepted the Applicant’s claim that betrayal of FARC by desertion may be regarded as the “manifestation of a political opinion against it”. The Tribunal also noted that it accepted that:
“If FARC had learnt of [the informant brother’s] role as an informer, and it may have done, then his assistance of his political foe should also be regarded in the present jurisdiction as a manifestation of a political opinion, for it would be seen by FARC as action advancing the political position of its adversary, the State.
It is necessary, for the Tribunal to be satisfied as to whether the applicants themselves face a real, as distinct from remote chance of being persecuted for reason of their political opinion, actual or imputed, or for reasons of association with their more immediate political foe (the informant brother). It is their position that the whole family is implicated in FARC’s vendetta. They claim that FARC’s path of murder will soon lead to them.”
In the Findings and Reasons section of its decision, the Tribunal concluded, on the basis of the survival of the Applicant and of all his immediate family members, that FARC was not really after the Applicant. The Tribunal noted that such a finding was highly relevant to a consideration as to whether or not the Applicant had a well founded fear of persecution. The Tribunal found that there is “no objective evidence of an actual intention to persecute the applicants or their immediate families. The most beneficial construction that can be put on this is that FARC’s assassins must have been very focused as to who they regarded as their targets, and that these included only those four individuals who had been FARC members and who had later deserted the organisation, ie, (the informant brother) and the three cousins.”
The Tribunal went on to find that there was no evidence to suggest that FARC was trying to “hurt” the informant brother or the Applicant who may have helped the informant brother by “picking off innocent family members”. The Tribunal noted that it was not suggesting that it is appropriate that someone else be killed before making findings as to the chance of persecution of the Applicant.
However, the Tribunal noted that all the alleged threats made to the Applicant and his family by FARC remained unfulfilled. It also noted that much time had passed since the first murder and no action appeared to have been taken against the Applicant or his family, even though the Applicant and his other brother may have been inconspicuous by their absence.
Those findings led the Tribunal to conclude that the Applicant and the other applicant brother had exaggerated this part of their evidence.
The Tribunal noted that it seemed inconceivable that FARC would “knock on the family’s doors and merely threaten to kill people because of what he had done, let alone if they knew he had turned army informer”, even if FARC was disaffected by the desertions. The Tribunal opined that it would be damaging to such an “unscrupulous organisation to let itself be seen as potentially so toothless”.
The Applicant contended that the reason no action appeared to be taken against the family is because the family is in hiding. Further, the Applicant submits that, to suggest that the organisation was letting itself be seen as “toothless” by merely threatening to kill people ignored the fact that FARC had already murdered 3 of the Applicant’s cousins and shot the informant brother in the back of the leg.
However, to my mind, it is clear from a fair reading of the decision that the Tribunal was aware of the Applicant’s claim of being in hiding and there is no reason to assume that such fact was not taken into consideration in the Tribunal’s findings that “no action appears to have been taken against the family at all”.
It is clear, on the Applicant’s own evidence that many of his family members remained at the same residential address. Certainly, two brothers have moved to Ecuador and the youngest brother moves between his sisters’ homes. This evidence is consistent with the Tribunal’s noting of the Applicant’s evidence that the whole of his immediate family had continued to reside in the Antioquia region, until the Applicant and his brother came to Australia and the informant brother moved to Ecuador.
In its decision, the Tribunal acknowledged the escalation by FARC in the killing of the cousin and acknowledged that such escalation may be directed at the informant brother. However, it did not accept that the Applicant came to Australia, leaving his loved ones at home, to escape being harmed by FARC.
The Tribunal found that there was no evidence to suggest that FARC was endeavouring to get at the informant brother by picking off “innocent family members” family, including the Applicant. In reaching that conclusion, the Tribunal noted that no action appeared to have been taken against the family since the time of the first murder, other than the unfulfilled alleged threat claimed by the Applicant. Those findings caused the Tribunal to conclude that the Applicant had exaggerated that part of his evidence.
Plainly the Tribunal has dealt with the Applicant’s claim of fear of persecution by reason of his relationship to the informant brother and has found there is no evidence to suggest that FARC is trying to hurt “innocent family members” of the informant brother.
The real question for consideration is whether there was a claim raised before the Tribunal, which was not dealt with, of a fear arising out of the Applicant’s claim of having influenced the informant brother to inform against FARC and therefore he was not an “innocent” family member in the eyes of FARC. Certainly, no such claim was made prior to the Applicant’s oral evidence in these terms. The Tribunal is obliged to deal with claims squarely raised on the material before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [60]).
The Applicant stated, in his oral evidence, that his fear in relation to the threats received by FARC became stronger after the informant brother had informed the authorities of the areas where FARC operated. The Applicant claims that this fact caused FARC to realise that the informant brother’s brothers, including himself, had influenced the informant brother to tell the truth. The Applicant claims “that’s when they started taking action against all of us”. It appears to me that the Tribunal considered the Applicant’s claim in context of his being an “innocent” family member, rather than his role in influencing the informant brother to leave FARC and cooperate with the authorities against FARC.
It is my view that the Tribunal did not consider the Applicant’s claim of a fear of persecution because of his role in influencing the informant brother to turn against FARC and that that fact was known to FARC. It is my view that the Tribunal only considered the Applicant’s conduct in the light of the Applicant being an “innocent” family member, whose conduct, beyond membership of the family, was not known to FARC.

The Applicant’s claim of persecution by FARC, because of his role in influencing the informant brother to turn against FARC, a fact of which FARC was aware or likely to have been aware, is a claim squarely raised by the Applicant in his oral evidence before the Tribunal. In those circumstances, it was incumbent upon the Tribunal to consider that claim and make findings in respect of it. The Tribunal has failed to do so. By that failure, it has committed jurisdictional error.
Accordingly, the Tribunal’s decision ought to be set aside on the basis of jurisdictional error and the matter should be sent back to the Tribunal for it to make a decision according to law.

(c) The Tribunal overlooked and ignored evidence that FARC had threatened the whole family, including the Applicant

The Tribunal considered the Applicant’s evidence that FARC had threatened the whole family, including the Applicant, and referred specifically to that claim in the Findings and Reasons section of its decision. The Tribunal found there was no objective evidence of an actual intention by FARC to persecute the Applicant or his immediate family. The Tribunal noted that the applicant and his brother have wives and children in Antioquia, none of whom who had been harmed by FARC before or since the arrival of the Applicant and his brother in Australia. The Tribunal found that the Applicant’s claims of such threats were “exaggerated”.
The Tribunal’s conclusions were findings of fact and were open to the Tribunal on the material and evidence before it. For those reasons this ground is not made out.

(d) The Tribunal overlooked and ignored the fact that, after having arrived in Australia, the Applicant learnt that FARC had murdered his surviving cousin and was looking for all his family and 2 of his brothers, including the informer, had fled to Ecuador to escape FARC

The Tribunal referred to the Applicant’s evidence that his brother and the informant brother fled into exile in Ecuador about 3 months before the Tribunal hearing. It noted that a third brother is also living in Ecuador and all 3 are living with a cousin, also from Colombia, who is working in Ecuador. The Tribunal also referred to and accepted the Applicant’s claim that his fear worsened, after he arrived in Australia in April 2000, and learnt, whilst here, that his cousin had been shot dead by FARC on 22 May 2000.
These references by the Tribunal make it clear that the Tribunal did not ignore such evidence in consideration of the Applicant’s claims. For these reasons this ground is not made out.

Ground 2 - That the Tribunal decision was irrational, illogical or unreasonable or made findings which have no probative evidence to support them

It was common ground between the parties that it was not necessary for the Court to consider Ground 2 in the event that the Court found jurisdictional error in accordance with Ground 1. Accordingly, I have not considered Ground 2, beyond the extent to which it is incorporated in Ground 1.

The issue of delay

On 27 September 2005, the First Respondent filed a Notice of Objection to Competency on the basis that the Tribunal’s decision was a privative clause decision and contrary to s.477(1A) of the Act the Applicant failed to file and application for judicial review of the Tribunal decision within 28 days of notification. The Applicant was notifed of the Tribunal’s decision on 17 January 2001, and filed his application in this Court for review on 24 August 2005. However, s.477(1A) has no application as the Tribunal’s decision is not a privative clause decision as it has been affected by jurisdictional error.
The First Respondent contends, that despite the Tribunal’s decision being affected by jurisdictional error, the constitutional writ relief sought is discretionary and it ought to be refused having regard to the undue delay of the Applicant in pursuing judicial review of the Tribunal’s decision.
In support of his application for constitutional writ relief, the Applicant relied on his affidavit sworn 15 November 2005 (“the Affidavit”).
The Affidavit chronicles the Applicant’s attempts to instruct an adviser to apply to the First Respondent to exercise her discretion under s.417 of the Act to substitute a decision more favourable to the Applicant. Relevantly, s.417(1) is as follows:

“(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.”

The Applicant states that his first request under s.417 of the Act (“s.417 Request”) was made by his first adviser on 23 February 2001, but no response was received.
The Applicant then engaged a second adviser who sent a further s.417 Request on behalf of the Applicant on 18 April 2002. That request was refused on 16 May 2002.
On 31 May 2002, the Applicant’s second adviser wrote again to the First Respondent making a further s.417 Request.
The Applicant stated that, because he had not received a response from the First Respondent, he engaged a third adviser who wrote to the First Respondent on 24 March 2003 with a further s.417 Request. On

24 June 2004, the third adviser received a letter from the First Respondent informing him that, due to an oversight, a reply to the letter of 24 March 2003 had not been sent. On 12 April 2005, the First Respondent responded to the 24 March 2003 request, refusing the exercise of discretion.
On 19 March 2005, the Applicant was detained at Villawood for about 3 months. Whilst in detention the Applicant’s third adviser wrote again to the First Respondent on 23 May 2005, with a further s.417 Request.
In considering whether the Court should exercise its discretion to grant the relief sought, I have regard to the delay by the Applicant, albeit that there is no specific time requirement in this Court in which the Applicant should seek constitutional writ relief.
In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (“Ex parte Marks”) at [15] and [16] in which McHugh J said the following:
“[15] Where an applicant seeks the issue of constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases.”
“[16] The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.”
The nature of constitutional writ relief, as referred to by McHugh J in Ex parte Marks, makes it clear that one must consider the public interest in there being efficacy in public acts, decisions and judgments which cannot be allowed to become “hostage of an applicant’s search for favourable legal advice’’ (Ex parte Marks at [17]). His Honour went on to say that, in all but exceptional cases, the inability of an applicant to obtain favourable advice within 2 months for mandamus and 6 months for certiorari is a strong indicator that the applicant has no case for relief. To enlarge the time for commencing proceedings by many months, the case would need to be exceptional and the explanation for such a delay is a relevant consideration (Ex parte Marks at [17]).
The Applicant submitted that the Court ought to have particular regard to the concession made by the First Respondent of jurisdictional error in respect of grounds 2 and 3 of his further amended application and, of course, the further jurisdictional error found by me in respect of ground 1(b).
However, I note that the errors that gave rise to First Respondent’s concessions in respect of grounds 2 and 3 arose from changes in the jurisprudence of the relevant law made subsequently to the Tribunal’s decision.
Further, until the Tribunal hearing, the Applicant had not previously made the claim that I found arose from his oral evidence. That claim is that the Tribunal had failed to consider if the Applicant had a well founded fear of persecution from FARC by reason of his influence upon his informant brother to become an informant. The Tribunal only considered the risk to “innocent family members”. This claim is a serious claim.
The Applicant also submitted that the Court ought to have particular regard to the grave consequence that could flow to the Applicant if he was to return to Colombia without the serious claim he now makes having been properly considered according to law by the Tribunal. The Applicant submitted that Ex parte Marks involved different factual consequences, in that the consequence of a failure to grant relief may have resulted in termination of employment. The Applicant submitted that, in the case before this Court, where the Tribunal accepted that 3 of the Applicant’s cousins had been murdered and his informant brother shot, a failure to grant relief may result in the Applicant’s death. Whilst I accept that the worst possible consequence for the Applicant is significantly worse than the consequence for the appellant in Ex parte Marks tragically the Applicant’s worst consequence is not uncommon in refugee law.
However, whilst I have regard to the gravity of the Applicant’s worst consequence it is not, by itself, sufficient, to my mind, to overlook a 5 year delay. Whilst the Applicant did instruct advisers to make s.417 Requests to the First Respondent, there are at least 2 long periods, one of 14 months, and one of 10 months, of no evidence of any proactivity by the Applicant in pursuing his rights.
The first period of delay of 14 months was between February 2001, when the Applicant asked his first adviser to write to the First Respondent, and April 2002 when he instructed his second adviser to do the same.
The second period of delay of 10 months was between May 2002, after his s.417 Request made in April 2002 was refused, and March 2003, when he instructed his second adviser to make a further s.417 Request.
Whilst it seems extraordinary that it should take the First Respondent more than 2 years, from March 2003 to April 2005, to deal with the Applicant’s third s.417 Request, there is no evidence of any proactivity by the Applicant in pursuing the status of his s.417 Requests or seeking any other advice in respect of his rights.
However, the Applicant stated in his Affidavit that he was not aware of his rights, following the Tribunal decision, until his detention at Villawood in March 2005. He recalled that his first adviser only told him that he could make a s.417 Request to the Minister. The Applicant further stated that he did not recall his second adviser informing him of any other cause of action that may be available to him, other than making a further s.417 request to the First Respondent. The Applicant stated in his Affidavit that “as I have no knowledge of Australian law and could not speak English at all at that time, I told [the first adviser] to do what he thought was best”. It was those instructions that appeared to have prompted the Applicant’s first request to the First Respondent made on 22 February 2001.
I also note the letter from the Tribunal dated, 17 January 2001, informing the Applicant of the Tribunal’s decision and making clear reference to the Applicant’s right to seek review of that decision within 28 days.
However, the First Respondent did not object to any parts of the Applicant’s Affidavit and did not seek to cross examine the Applicant in relation to any of these matters. Further, the First Respondent did not make any submission based on the absence of evidence from the Applicant’s advisers. I was not asked to draw any inference about the nature of the advice that may have been given to the Applicant by any of his advisers, in the absence of evidence from any of the advisers.
The First Respondent submitted that the Applicant’s s.417 Requests to the First Respondent are not sufficient to explain the Applicant’s delay in filing for relief in this Court and, in all the circumstances, the Applicant’s delay has been undue and the Court should not exercise its discretion to grant relief.
I find this submission appealing. However, I have particular regard that there was no cross examination of the Applicant to challenge his evidence as to the reasons for his delay, commencing with his evidence of lack of awareness of his rights, his seeking, obtaining and following advice and his filing of an application in this Court, upon being made aware of his rights.
In the circumstances, I accept the evidence of the Applicant. In balancing the interests of justice to the community in having such administrative decision making finalised and the interests of the Applicant in having an opportunity to have his claims heard and considered according to law, having considered all the circumstances, I do not regard the delay as sufficient to deprive the Applicant of relief.

Conclusion

There being jurisdictional error in the Tribunal’s decision and the Applicant’s delay in seeking constitutional writ relief not being sufficient, in the circumstances, to deprive the Applicant of relief, the Tribunal’s decision should be set aside.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 30 January 2006