SZNRM v Minister for Immigration - [2009] FMCA 1049

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1049

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal considered all bases of applicant’s claims to fear persecution – Tribunal not satisfied of Convention nexus – application of s.91S – beneficial and holistic reading of Tribunal decision record – Tribunal dealt with applicant’s claims – Tribunal’s findings open to it – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91S, 430
Migration Legislation Amendment Act (No.6) 2001 (Cth)

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration and Multicultural Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Collector of Customs v Pozzolanic (1993) 43 FCR 280
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140
Tickner v Chapman (1995) 57 FCR 451
Minister for Immigration and Multicultural Affairs v Sarrazola [2001] FCA 263; (2001) 107 FCR 184
STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61; (2006) 231 ALR 556

Applicant:

SZNRM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1441 of 2009

Judgment of:

Nicholls FM

Hearing date:

8 September 2009

Date of Last Submission:

8 September 2009

Delivered at:

Sydney

Delivered on:

28 October 2009

REPRESENTATION

Counsel for the Applicant:

Ms A Mitchelmore

Solicitors for the Applicant:

Gilbert & Tobin

Appearing for the Respondents:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 17 June 2009, and amended on 10 August 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1441 of 2009

SZNRM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 17 June 2009, and amended on 10 August 2009, made under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 May 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

The applicant is a citizen of Columbia who arrived in Australia on 19 February 2008 and applied for a protection visa on 10 November 2008. (See Court Book – “CB”, CB 1 to CB 41 with annexures.)

Claims to Protection

The applicant’s claims to protection were that his father had been captured and extradited to the United States for his involvement in drug trafficking. While his parents had initially sent him to Australia for the purpose of studying, he subsequently discovered that they had sent him to Australia “for security reasons”. He claimed that the reason that he feared to return to Columbia was because of the relationship with his father, and threats that his father had received in relation to the family. He claimed that his mother had sought police protection, which had been granted.

The Delegate

The applicant attended an interview with the delegate (CB 53.1). The delegate found that there was no Convention basis in relation to the applicant’s claims, and therefore refused the application for a visa. (See CB 52 to CB 56.)

The Tribunal

The applicant applied to the Tribunal for review of this decision on 27 February 2009 (CB 52 to CB 61). He provided a number of documents to the Tribunal, and in particular, a statutory declaration (CB 70 to CB 73), which gave further details in relation to his claims. In particular (and clearly in response to the delegate’s finding), the applicant claimed to have a well founded fear of persecution for reason of membership of a particular social group, and political opinion. The applicant claimed that his family was part of a family social group: “whose contributions to drug money was to help the paramilitaries and government in Columbia”, and that the “police and military are also involved in drug trafficking” (CB 71.9).
In particular, the applicant explained (at CB 73.3):
“23. … In conclusion I have a well-founded fear of persecution of being persecuted for reasons of a particular social group for being members of my father's family whose political corruption nexus with government and paramilitaries has made me the target of persecution. I do not have a affective [sic] protection in Columbia which means that if I return to Columbia I will be killed because I am unwilling to avail myself of the protection of Colombia, nor my family. My family has received threats against our lives and has suffered one attack; if I go back I will be killed. The persecution I will suffer will be a threat to my life and freedom. Therefore, I consider myself a person to whom Australia obligations for the grant of a Protection (Class XA) visa.”
The applicant ultimately attended a hearing before the Tribunal on 11 May 2009 (CB 142). The Tribunal’s account of what occurred at the hearing is that contained in its decision record (at [31] at CB 159 to [48] at CB 161).
The Tribunal’s key findings were (at CB 161 to CB 162):
“52. The Tribunal is not satisfied on the evidence before it that any Convention-related factors affect the Applicant’s protection prospects in Columbia or the protection prospects of his family including his father. The Tribunal finds on the evidence before it that individual criminal interests are at play in the harassment allegedly experienced by the Applicant’s mother and siblings.
53. Overall the Applicant’s supposedly Convention-related claims are unsupported, inconsistent and confused.
54. Having regard to s.91S of the Act, the Tribunal is not satisfied that the harm the Applicant claims to fear is for reasons of ‘membership of a particular social group’. The Tribunal is not satisfied that the harm the Applicant claims to fear is for reasons of ‘political opinion’, real or imputed.
55. The Tribunal is of the view on the evidence that the Applicant, in some confusion, has invented a muddled and implausible layer of potentially Convention-related facts in this case in an attempt to embellish an account that, as originally presented to the Department, was lacking in Convention nexus.”
On this basis, the Tribunal affirmed the decision under review ([60] at CB 162).

Application to the Court

The amended application is in the following terms:
“1. The Second Respondent (Tribunal) failed to consider the Applicant’s claim to fear persecution on the basis of his father’s cooperation with the United States authorities in telling what he knew about other drug traffickers, the paramilitaries and the police.
Particulars
(a) In support of his application to the Tribunal for review of the delegate’s decision, the Applicant submitted a statutory declaration in which he claimed, inter alia, that prior to an attack on his mother and siblings on 12 February 2009, his father had rung his mother and told her to flee with the children because he knew they would be killed for the following reasons:
(i) aside from drug traffickers, the paramilitary and the police were involved; and
(ii) he was going to cooperate with the courts.
(b) In support of this claim, the Applicant provided news articles detailing the relationship between paramilitaries, drug traffickers, public officials and the police.
(c) The applicant also claimed that his father had previously given money to political parties in order to effect a particular political outcome, in support of which he provided news articles pertaining to the support of high-raking politicians and public officials by drug traffickers.
(d) In finding that if the attacks on the Applicant’s family in Columbia were politically motivated they could only have been perpetuated by FARC, the Tribunal failed to consider the applicant’s claim that the attacks were at the instigation of persons within the State in relation to whom the applicant's father held adverse information that he was going to disclose to the United States authorities.
2. The Tribunal failed to consider the applicant’s status as a member of a particular social group, namely as a member of a family the father of which held adverse information about persons involved in the government of the State and proposed to divulge that information to the United States authorities.”

Hearing Before the Court

At the hearing before the Court Ms A Mitchelmore of counsel appeared for the applicant. Mr A Markus represented the first respondent.
Also taken into evidence (in addition to the Court Book) was the affidavit of Tamara Anne Sims of 17 June 2009, a lawyer in the employ of the applicant’s solicitors. Relevantly, attached to the affidavit was a transcript of the hearing before the Tribunal.

The Applicant’s Submissions

I understood the applicant’s complaint to be that he had claimed before the Tribunal (amongst other things) that his father, who was in prison in the United States, intended to disclose to the US authorities information about the complicity of Colombian authorities in the activities of paramilitaries and drug lords. The complaint is that the Tribunal did not consider that aspect of the applicant’s claims.
Ms Mitchelmore’s submission was that the applicant’s complaint is best understood when regard is had to the chronology of the various iterations of the expression of the applicant’s claims.
The applicant provided a statement in support of his protection visa application. In essence, the statement asserted that the applicant thought that he had been sent to Australia to study, and it was only after his arrival that he understood that he had been sent here for “security” reasons. That his father had been arrested and extradited to the United States for his involvement in drug trafficking in Columbia, and that had resulted in his family obtaining twenty-four hour police protection. The delegate found that the applicant’s statement, including what he said at the interview, did not include any direct reference to a Convention based reason for the alleged fear of persecution. It did not support any finding that a Convention based reason was the essential and significant reason for the harm feared (CB 56.4).
That, in view of the delegate’s decision, the applicant provided a further statutory declaration to the Tribunal made on 7 April 2009 (CB 70).
Ms Mitchelmore submitted that in that statement the applicant gave an account of events which had occurred, relevantly, in Columbia after the delegate’s decision. In particular, the Court was referred to the applicant’s report of an attack on his mother and brothers, which had occurred on 12 February 2009, and that this attack had followed a phone call that his mother had received from his father, telling (and the other children) her to “flee”, because he was going to cooperate with the United States authorities. (See CB 71.)
The applicant’s claim was that his father had told his mother that the threat of being killed came not only from “the drug traffickers but also the paramilitary and the police” (CB 71). Later that day, the applicant’s brothers were assaulted when people on a motorbike fired several shots at them. The police did not appear to help, and the mother “knew they were not going to protect her because what my father had told her hours earlier.” The applicant claimed that, ultimately, his mother told him that “even the police were involved.”
Ms Mitchelmore submitted that this account by the applicant as to what had occurred on 12 February 2009 was corroborated by an eyewitness account from a neighbour. (The English translation of the neighbour’s account is reproduced CB 120.)
The applicant’s submission is that the account was not raised with the applicant at any stage, and was not referred to by the Tribunal in its decision record.
Ms Mitchelmore emphasised those parts of the applicant’s statement (see [20] and [22] at CB 72) which asserted that police, or security forces, were unable to stop the deaths of family members, and that he did not want his family to be part of the many families who have been victims of what was described as the “narcoparamilitarism war in Columbia”, which was “government-sponsored”. The applicant emphasised that protection that was initially promised was not afforded to the applicant’s family on 12 February 2009.
She referred the Court to paragraph 23 at CB 73 of the applicant’s statement, which emphasised the applicant’s concerns that he had a well founded fear of persecution for reasons of membership of a particular social group, being his father’s family: “whose political corruption nexus with government and paramilitaries has made me the target of persecution.” He also claimed to have ineffective protection in Columbia.
Ms Mitchelmore submitted that just on the basis of the applicant’s statutory declaration the applicant had articulated a claim to fear harm because his father was going to provide information to the US authorities, which in part would be harmful to the Colombian government, given their complicity, and that the applicant and other members of his family would be persecuted by reason of the information that his father was able to give.
Further, it was submitted that that claim was also articulated by the applicant at the hearing before the Tribunal. See, in particular, transcript (“T”) – T6 to T7:
“Member: It’s interesting that your mother only becomes attacked after your father is gone.
Applicant: Because he took a lot of information with him to the United States so the only way they could control him was by threatening his family.
Member: What sort of information?
Applicant: There were campaigns about people, about the paramilitary, whatever kind of links that they could have between them.
Member: What kind of campaign?
…
Applicant: I’m not permitted to make this kind of declaration, but there are many journalists in Columbia at the moment who have said that the President is involved in all of this, narcotic ? .. traffic and that they support his campaign. And there are many, the lower levels who’ve had connections with the paramilitary.
…
Member: You think these people want to harm your family because your father has taken political secrets to the USA?
Applicant: Yes.
Member: Now that’s the only reason why?
Applicant: And also the business of the paramilitary with drugs, and the businesses of the very drug traffickers also.”
Then further at T7 to T8:
“Member: No you have just described the kind of people. It doesn’t sound like they’re political enemies so much as business enemies. It doesn’t surprise me that with your father gone and maybe his operations weakened that there have been some attacks on your family. What does surprise me a little – now wait there – what does surprise me a little is your description of these people as political enemies. Ok, because we’ve just heard what your father needs a paramilitary for. He needs a paramilitary to stop rivals from encroaching on his business and maybe from harming him and his workers and his family whether his family members know that he’s in that business or not. All is I’m saying is I’m having a little bit of difficulty with the suggestion that some kind of political enemy is now taking revenge on your father, by attacking his family.
Applicant: I’d like to describe how I see it, from my point of view what I can see.
Member: Ok.
Applicant: In Columbia let’s begin with the drug traffickers and then we have the paramilitary, there’s the guerrilla group, the Farc, the government.
Member: Farc is the guerrilla group right?
Applicant: Yes. The ideology of the paramilitary group and the guerrillas that one has to abolish the other and that the paramilitaries are there like a private security group for the country, and they’re there from the big jungles right into the smallest area of the city, and they’re infiltrated in the government and in the guerrilla movement as well so as to carry out their political ideas.
Member: Now whose infiltrated the paramilitary are?
Applicant: So the paramilitary are infiltrated in the government and in the guerrilla movement so that they’re… and the Farc also infiltrates in politics. Then we have the drug traffickers whom the drug traffickers give money to the paramilitary, to the Farc and to the government. And the government has to keep the people in order and can’t have bad relations with any of these three, but when something happens the ones who are most affected are the drug traffickers ’cause they’re the ones with the money. What I’m saying is that what have my family and me – what have we got to do with it, why should they come and attack us because we’ve never done anything?!
Member: So who attacked your mother?
Applicant: I don’t know.
Member: Well, for this to be political Farc would have to have attacked your mother.
Interpreter: For it to be political it would have to be Farc?
Member: Yeh it seems like that, for this to be a political matter it would seem that Farc would have to have attacked your…
Applicant: Or the paramilitary or the drug traffickers, I don’t know, I don’t know who attacked her.
Member: Well if other drug traffickers attacked her then it might not be about politics or religion or race or membership of a particular social groups.
Applicant: What I’m saying it is not me who attacked my mum, I know that for some reason they’re trying to pressure my father, somebody’s trying to pressure my father.
Member: Okay, run it by me again, what are they trying to pressure him about?
Applicant: Because he has a lot of information in his head and any of those groups could be affected by his declarations that he might make.”
Even further at T9:
“Member: It’s hard, to imagine that it would be Farc attacking your family after your father’s gone. They be attacking your father and your family all the time.
Applicant: No, I think it was the paramilitary because we had cattle ranches in the zone of Uduwa, which is an area where the paramilitary, it’s an area very affected by the paramilitary.
Member: Okay, well the paramilitary – the paramilitary are probably politically on the same side as your father? They work with the big business men and the drug lords? and they hate Farc? But not all paramilitaries defend all families, I mean, some work with some families and some work with others? and as you said some of these families are competing in the drug trade? It doesn’t seem easy to rule out at this stage that the paramilitary that attacked your family might have been from some other rival drug family or cartel? If a senior drug dealer of some operation was removed from Columbia, just by default, the other operations become stronger and they will probably take advantage of it? That’s believable and it’s quite likely. Its not good news for your family? It’s a big criminal thing, is it Convention related? - very hard for me to see that at this stage -- except for you saying something that your father has some political secrets about the President or something. We don’t know how we can know that. It doesn’t seem like your father was talking to your mother about political secrets?
Applicant: He said but – it’s very feasible that someone could start to say names and other names and other names and so that’s why they are killing people and that’s why Columbia’s full of dead … he said, for instance, there is the case of, I did not get the name, but they killed 35 members of his family.”
Also at T10:
“Applicant: But why didn’t the police give that protection to my mother?
Member: Well, the police can’t be everywhere at once. But the failure of the police doesn’t make this a political matter. Okay, your mother went out without telling them, probably, and went to get help? By the way, sorry I’m interrupting you – are you sure your mother really did that because, if her life’s in danger and she’s going out around town with the children amongst it, isn’t it better just to call people, to telephone people and asked them – what they might be able to do?
Applicant: My father called my mother and said that it was not just for reasons of drug trafficking - it was to do with paramilitaries and for political reasons.
Member: Well – and you’re certain your father’s not just saying that to make your mother feel better about something? Maybe in the American gaol, he’s trying to make her feel like he’s a bit of a hero rather than a villain.
Applicant: No, he doesn’t have any reason to make her feel any way, the relationship between them now was just about the children. It was to try and protect us so that we would have some time to be able to get out of the house.”

Finally, at T10 to T11:
“Member: … Okay it’s not enough to be facing prosecution because you’re the member of a family of somebody who was a target of harm. There has to be someone in that family who has been targeted for harm for a Convention-related reason. Okay, so what you’re saying is that you fear persecution because you are a member of the family of someone who’s been targeted for his political opinion. Okay, now the Migration Act permits that kind of formulation. Okay, alright, I can consider that. I can consider that you’ve faced persecution in Colombia for reasons of a membership of a particular social group being your family of which your father is the head and it’s a family where your father is being harmed for reasons of his political opinion. That is what I will consider. So that’s it. I am only considering it I am only considering it. Don’t be overly hopeful because I have some concerns. I’ve got some concerns. Okay, the reference your father’s political opinion is a very recent reference. To be fair, you’ve said that you’ve only just recently discovered his political involvement. But I am still cautious with this at least to start with because the reference didn’t arise until after the Department highlighted the weakness in your case in his decision. So that’s why I’ve asked you a lot of questions today about who these people could be who were harming your family. And, you say it’s the paramilitary. But your father supports the paramilitary! It’s common for drug dealers to have paramilitary around them. To protect them against their rivals. Okay. You say, it must be political or that it is political but we both refer to commonly available information about how the paramilitary protect the criminal business interests of drug lords. Now, although I have some problems with your claims, I will go away and consider them further but having put all that all to you – I’m entitling you to make further comments if you wish.”
Ms Mitchelmore in submissions referred to the Tribunal’s decision record, and in particular, to the following:
1)At paragraph 20 the Tribunal noted that it had before it the Department’s file, the material referred to in the delegate’s decision, and other material available to it from range of sources.
2)At paragraphs 31 to 46 the Tribunal set out the applicant’s claims made to it.
3)The applicant does not agree (with reference to the transcript before the Court) with the Tribunal’s description of his “evidence seemed to become confused at the hearing” (at [39] at CB 160 of the Tribunal’s decision record).
4)Noted that at the hearing (see [42] at CB 160) the Tribunal reported that the applicant had said: “that people might be harassing his family in order to discourage his father from giving the USA authorities information about them.”
Ms Mitchelmore submitted that in its “short” “Findings and Reasons” (see [49] to [56]) the Tribunal makes no reference to what it noted at paragraph 42, and to the applicant’s claim that the attack on his family occurred in circumstances where police protection had not been provided, and the applicant’s inference that, in those circumstances, it was the authorities who wanted to threaten his family.
The applicant relies on such authorities as Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 per Allsop J (with whom Spender J agreed) at paragraph 42. In NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at paragraph 56 and Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 per Gummow and Callinan JJ (with whom Hayne J agreed at [26] and [95]), for the proposition that the Tribunal is firstly obliged to deal with, and make findings on a “substantial, clearly articulated” claim, or one that can be said to clearly arise from the circumstances presented. Second, 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 … the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.” (Dranichnikov at [26]).
Specifically, therefore, the applicant’s complaint is that the Tribunal accepted that the applicant’s father was a drug trafficker, who had been extradited to the United States, and that his mother had sought and obtained police protection. The Tribunal found that the harassment “allegedly experienced” by the applicant’s mother and siblings involved only criminal interests.
However, in the course of his application for review, the applicant had made claims as to his mother and siblings coming under attack, and on 12 February 2009, which followed a telephone conversation in which the applicant’s father had told his mother that people were out to harm his family because of the information that he had intended to disclose to the US authorities, which was potentially damaging to the Colombian authorities. That the applicant had provided independent corroboration of this attack, and the Tribunal made no reference to this in its decision record.
That the “shift” in the applicant’s claims, as between what was put before the delegate, and the Tribunal, was not only that his father was a drug trafficker, but also that he was a willing source of information about the links between the paramilitaries and the authorities. This, the applicant claims, is a separate integer of his claims which required consideration by the Tribunal. The Tribunal acknowledged that the claim had been made in its decision record (see [46]), but in its subsequent “Findings and Reasons” did not consider it, as it was obliged to do.

The Respondent’s Submissions

Mr Markus for the Minister submitted that the parties did not disagree about any relevant legal propositions. The issue from the respondent’s perspective was the application of those propositions to the facts presented in this case.
Mr Markus submitted that to properly comprehend the Tribunal’s reasons the Court would need to give some beneficial construction to the decision, and in particular, to read the decision as a whole.
The Minister’s position is that the key to understanding the Tribunal’s approach is its reference to s.91S of the Act. Mr Markus submitted that this explains the Tribunal’s concerns, and the context in which the Tribunal approached the claims.
By way of background, Mr Markus tendered the explanatory memorandum to the Bill which introduced s.91S to the Parliament (Migration Legislation Amendment Bill (No.6) 2001). In essence, s.91S was inserted into the Act to address a situation where the existence of a family as a particular social group may have been used as a way to convert what were non-Convention related reasons to fear persecution (such as a criminal enterprise) into Convention related persecution, simply by referring to the fact that an applicant faced harm because he was a member of a particular social group. Namely, the family of someone who faced non-Convention related persecution.
Mr Markus submitted that this provides the key to understanding the Tribunal’s approach and ultimate determination of the application before it.
Mr Markus’ submission therefore was that the Tribunal accepted that the applicant’s father was a drug trafficker, who ultimately had been extradited to the United States. It also accepted that the applicant’s mother had sought police protection in 2008, and was granted a protection order by court.
While the Tribunal accepted that some pressure was being brought to bear on the applicant’s family in Colombia, that it was “individual criminal interests” who were “at play” in the harassment experienced by the applicant’s mother and siblings. Mr Markus submitted that what the Tribunal ultimately rejected were the applicant’s explanations, or rather his attempts to explain how his father’s financing of the paramilitaries, in making payment to government officials from the proceeds of crime, were politically motivated acts. The Tribunal rejected this part of the applicant’s claims.
His submission, therefore, was that the critical elements in the Tribunal’s reasoning were that the applicant’s father was involved in the drug trade in Colombia, he was arrested and extradited to the United States, that there may have been some pressure put on family members in an attempt to intimidate the applicant’s father, but that this did not mean that either the applicant’s father, or members of the applicant’s family, had any political motivations ascribed them, either real or imputed, by reason of the applicant’s father’s preparedness to give information to the US authorities. Nor that such political motivations were ascribed to the family, simply because they were members of the father’s family.
Mr Markus' submissions centred on the what was said to have been discussed at the hearing with the Tribunal (and there is no real difference between the transcript and the Tribunal’s account of what occurred), and ultimately on the Tribunal’s critical findings expressed as set out at CB 161:
“52. The Tribunal is not satisfied on the evidence before it that any Convention-related factors affect the Applicant’s protection prospects in Colombia or the protection prospects of his family including his father. The Tribunal finds on the evidence before it that individual criminal interests are at play in the harassment allegedly experienced by the Applicant’s mother and siblings.
53. Overall the Applicant’s supposedly Convention-related claims are unsupported, inconsistent and confused.
54. Having regard to s.91S of the Act, the Tribunal is not satisfied that the harm the Applicant claims to fear is for reasons of ‘membership of a particular social group’. The Tribunal is not satisfied that the harm the Applicant claims to fear is for reasons of ‘political opinion’, real or imputed.
55 The Tribunal is of the view on the evidence that the Applicant, in some confusion, has invented a muddled and implausible layer of potentially Convention-related facts in this case in an attempt to embellish an account that, as originally presented to the Department, was lacking in Convention nexus.”

Consideration

It is certainly the case that the Tribunal’s reasoning is brief. Having read a large number of Tribunal decision records in exercising jurisdiction in relation to cases of this type, this Tribunal’s “Findings and Reasons” certainly fall within the description of short and brief. Naturally, no error can be said to arrive simply because of that fact.
However, in many ways, a clear, succinct and, in that sense, brief expression of its reasoning is to be preferred to a lengthy and unnecessarily prolix exposition of a Tribunal’s thought processes.
But, the danger in a comparatively brief exposition is, as in the present case, that it provides fertile ground for counsel to argue that there is, at the very least, an inference to be drawn that the Tribunal has not considered all the bases on which the applicant put his claims to fear persecution.
In the circumstances, this is said to be, that his father held information, including information about people involved in the government in relation to their involvement in the drug trade. That that information was potentially damaging to the government of Colombia. Therefore, he had a well founded fear of persecution by reason of the harm that would befall him, in the authorities’ attempts to deal with the father.
On the other hand, I accept Mr Markus’ submission that relevant authorities (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, Collector of Customs v Pozzolanic (1993) 43 FCR 280) provide the basis for the Court to give a beneficial construction to the decision. That is not to say, as was cautioned by Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 that a beneficial construction, or reading, of a Tribunal’s decision involves reading into it things that are simply not there. This point was emphasised recently by the Full Federal Court in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140. (See in particular at [48], and the reference to Tickner v Chapman (1995) 57 FCR 451.)
I understood that Mr Markus’ submission to be put in response to the applicant’s submission that due to the brief treatment accorded to the applicant’s claims in the Tribunal’s “Findings and Reasons”, an inference should be drawn that the Tribunal did not consider certain aspects of the applicant’s claims.
Further, that a beneficial reading would also properly involve a reading of the decision record as a whole. That is, that the “Findings and Reasons” are to be read in context with what precedes it in the decision record.
Two matters require consideration as informing a proper understanding of what the Tribunal has done.
The first is that it was the applicant himself in his statutory declaration of 7 April 2009, which he provided to the Tribunal, who articulated the Convention nexus of his claims to fear harm as being that of a “membership of a particular social group and political opinion”. (See [18] at CB 71.) The applicant explained that:
“My family is part of the family social group whose contributions to drug money was to help the paramilitaries and government in Colombia ... The police and military are also involved in drug trafficking and this is a fact. My family is the family of a drug trafficker, even if we do not have anything to do with drug trafficking, we have no choice. We belong to that social group by blood. Colombian society sees us as a different social group which separates us from the rest of the community …”
It is the case that where the social group relied upon by an applicant is membership of his family, the Tribunal is obliged to have regard to s.91S of the Act.
Section 91S in the following terms:
“Membership of a particular social group
For the purposes of the application of this Act and the regulations to a particular person (the first person ), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.”
Section 91S was inserted by Migration Legislation Amendment Act (No.6) 2001 (Cth) (Act no. 131 of 2001). It is clear, with reference to the Explanatory Memorandum to the Bill, that s.91S was intended to overcome the outcome in such cases as Minister for Immigration and Multicultural Affairs v Sarrazola [2001] FCA 263; (2001) 107 FCR 184 (in his statutory declaration, the applicant refers to Sarraloza v Minister for Immigration and Multicultural Affairs [1999] FCA 101 - see [19] at CB 72), where it was ultimately held that a particular relative of a person facing persecution for a non Convention reason (that is, being pursued by criminals for repayment of a debt) was herself to face persecution for reasons of membership of a particular social group, when the criminals pursued her for the repayment of the debt.
Pursuant to s.91S an applicant, who claims to be pursued simply because he is a relative of a person who is targeted for a non Convention reason, does not come within the Convention grounds for persecution.
Subsequent to the passage of this section, in such cases as STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61; (2006) 231 ALR 556 the High Court held that an applicant who feared that he would be killed because his grandfather had killed a member of another family some sixty years earlier, and that that family was therefore obliged (by a customary law of Albania) to kill a male member of his family that s.91S prevented the applicant from succeeding to the extent that his claim was based on membership of a particular social group that consisted of his family.
At paragraph 24 per Gleeson CJ, Gummow, Callinan and Heydon JJ the Court said:
“Applying s 91S(a), it is clear that the grandfather had a fear of persecution for a reason other than those mentioned in Art 1A(2) of the Convention - revenge for murder. Section 91S(a) requires that fear of persecution to be disregarded. Section 91S(b)(i) requires the appellant’s fear of persecution to be disregarded, for it is reasonable to conclude that that fear would not exist if the grandfather’s fear had never existed. And s 91S(b)(ii) requires that the brother’s and the father’s fear of persecution be disregarded, for it is reasonable to conclude that neither of those fears would exist either if the grandfather’s fear had never existed. The result of disregarding the fears of persecution of the grandfather, the appellant, the father and the brother is that the appellant is to be treated as not having a well-founded fear of persecution for the reason of membership of a particular social group that consists of the appellant’s family.”
In having regard to s.91S of the Act the Tribunal (according to STCB at [26] and [29]) is required to have regard to whether any other member of the applicant’s family had been persecuted in the past, or had a fear of persecution, the reasons or reasons for that persecution, and whether the reason or reasons were mentioned in Article 1A(2) of the Convention.
The second matter for consideration is that in submissions the applicant took issue with the Tribunal’s finding that his “supposedly Convention-related claims” were unsupported, inconsistent and confused. Further, that the applicant: “in some confusion has invented a muddled and implausible layer of potentially Convention-related facts …” (See [53] to [55] at CB 161 to CB 162.)
In particular, the applicant complained about what was said in the Tribunal’s summary of what occurred at the hearing:
“39. The Applicant’s evidence seemed to become confused at the hearing when he ruled out his mother having been attacked by political or ideological enemies of paramilitaries such as FARC, by claiming she had been attacked by paramilitaries themselves. This struck the Tribunal is confused because, whereas he seemed to be claiming a political motivation for the attack on his mother, he was also claiming his father and paramilitaries were on the same side ideologically.”
The applicant complains, with reference to those parts of the transcript extracted above (see [24] to [28] above) that the Tribunal’s description is not an accurate characterisation of the exchange between the Tribunal and the applicant in relation to this subject.
I understood the applicant’s argument to be that the Tribunal’s characterisation of parts of his evidence as being confused and, for that matter, inconsistent and unsupported, then led (in part) to it not dealing with those aspects of the claim that it should have dealt with. In short, it was not open to the Tribunal to make such findings, or to characterise the applicant’s evidence in this way, and it therefore should have dealt with this evidence as being part of the applicant’s claims to fear persecutory harm.

The part of the transcript dealing with the applicant’s evidence, relating to who attacked his mother, is relevantly the parts of the transcript giving rise to the Tribunal’s specific characterisation of the applicant’s evidence. That is, what is set out at T6 to T9, and is, in part, extracted above.
In my view, any plain reading of the transcript as a whole reveals that it was open to the Tribunal to describe the applicant’s evidence in this regard as confused. For example, see T8:
“Applicant: I’d like to describe how I see it, from my point of view what I can see.
Member: Ok.
Applicant: In Colombia let’s begin with the drug traffickers and then we have the paramilitary, there’s the guerrilla group, the Farc, the government.
Member: Farc is the guerrilla group right?
Applicant: Yes. The ideology of the paramilitary group and the guerrillas that one has to abolish the other and that the paramilitaries are there like a private security group for the country, and they’re there from the big jungles right into the smallest area of the city, and they’re infiltrated in the government and in the guerrilla movement as well so as to carry out their political ideas.
Member: Now whose infiltrated the paramilitary are?
Applicant: So the paramilitary infiltrated in the government and in the guerrilla movement so that they’re…and the Farc also infiltrates in politics. Then we have the drug traffickers whom the drug traffickers give money to the paramilitary, to the Farc and to the government. And the government has to keep the people in order and can't have bad relations with any of these three but when something happens the ones who are most affected are the drug traffickers ‘cause they’re the ones with the money. What I’m saying is that what had my family and me – what have we got to do with it, why should they come and attack us because we’ve never done anything?!
Member: So who attacked your mother?
Applicant: I don’t know.
Member: Well for this to be political Farc would have to have attacked your mother.
Interpreter: For it to be political it would have to be Farc?
Member: Yeh it seems like that, for this to be a political matter it would seem that Farc would have to have attacked your …
Applicant: Or the paramilitary or the drug traffickers, I don’t know, I don’t know who attacked her.
Member: Well if other drug traffickers attacked her then it might not be about politics or religion or race or membership of a particular social groups.
Applicant: What I’m saying it is not me who attacked my mum, I know that for some reason they’re trying to pressure my father, somebody’s trying to pressure my father.”
The above extract, in my view, certainly creates the basis for the Tribunal to find that it: “… is of the view on the evidence that the Applicant, in some confusion, has invented a muddled and implausible layer of potentially Convention-related facts in this case in an attempt to embellish an account that, as originally presented to the Department, was lacking in Convention nexus” (at [55] CB 162).
The above extract reveals a number of the things.
First, the Tribunal’s report of what occurred at the hearing in its decision record is consistent with what is set out in the transcript.
Second, the Tribunal went to some lengths to explain to the applicant the importance to the outcome of his application as to whether there was a political connection to the harm feared, given that merely being a member of his father’s family was insufficient to bring his claims within the scope of the Convention.
Third, the applicant was given every opportunity to explain his position. The applicant made reference to a number of different groups in Colombia, including the paramilitary, guerrilla groups, the FARC, the government, but was plainly unable to tell the Tribunal which of these, or who, attacked his mother.
The Tribunal, in my view helpfully, put to the applicant that for there to be a political connection (which would be of assistance to the applicant’s claims) the attack on his mother would need to have been conducted by a group such as FARC. The applicant’s response was that it may have been the paramilitary or the drug traffickers, but that he did not know which. The Tribunal responded that if it was the drug traffickers that attacked his mother then it would not be about politics, or indeed any other Convention related reason. Inexplicably, in a transcript provided by the applicant himself, his response was: “What I’m saying it is not me who attacked my mum ...”
Given that the Tribunal made no suggestion whatsoever in this regard, this response by the applicant can only be seen as an expression of some confusion. It is certainly “muddled”. This, along with a plain reading of the remainder of his evidence, plainly laid the basis for the Tribunal finding his evidence to be confused and to contain an “implausible layer of potentially Convention-related facts” ([55] at CB 162).
The applicant complains that he ultimately told the Tribunal that he feared persecutory harm because his father contemplated providing information to the US authorities, and that his mother was attacked, and his brothers harassed, to deter his father from divulging this information.
The problem for the applicant now is that he was unable to tell the Tribunal who it was that attacked his mother. Providing the Tribunal with a long list and, in essence, saying: “choose one”, provides the basis for the Tribunal to find, in part, that the claim was an invention. It is clearly again “muddled”.
The applicant had suggested to the Tribunal that his family feared harm because his father had been “in politics” with paramilitary groups, but was unable to say whether the paramilitary groups (or indeed, anyone else) had attacked his mother. While the applicant’s statutory declaration reported that his father told his mother that the paramilitary and the police were involved, as well as the drug traffickers, in trying to kill his family, any plain reading of the transcript of the hearing reveals that this claim did not coherently survive the applicant’s explanation to the Tribunal at the hearing. The Tribunal’s attempts to extract relevant details from the applicant, after he had raised the issue of his father having taken information to the United States, and that the only way that “they” could control him was by threatening his family, was to make some vague references to “… there are many journalists in Colombia at the moment who have said that the President is involved in all of this …” (T6).
In my view, what is left of the applicant’s claims, whether expressly articulated, or even said to clearly arise on the circumstances presented at the hearing before the Tribunal (and in particular, relying on the transcript of the hearing), was that, as the Tribunal ultimately acknowledged, that the applicant had claimed that unknown, or unidentified people, or groups, may have been harassing his family to discourage his father from giving information to the US authorities.
The Tribunal remained unconvinced, however, on the evidence before it that there was any link between the harm feared and a Convention reason. Noting, of course, that mere membership of the particular social group, being the applicant’s family, was insufficient to establish such a Convention link.
Ultimately, the Tribunal saw the fear claimed by the applicant as due to “individual criminal interests”, and as such, this was insufficient to engage a Convention reason. The applicant’s attempts during the hearing (and, indeed, in his statutory declaration) to establish such Convention nexus were rejected by the Tribunal as “unsupported, inconsistent and confused”.
While the Tribunal’s decision record may indeed, for the sake of certainty, have benefited from a slightly longer exposition, I am satisfied, notwithstanding the brevity, and on a beneficial reading (in the sense as put by Mr Markus), that it did a deal with each aspect of the applicant’s claims, rejecting those elements which it found to be “unsupported, inconsistent and confused”.
What remained (that is, that the applicant’s father was a drug trafficker, who may be about to give information to the US authorities, and that the applicant’s mother had sought police protection) did not establish a Convention nexus. What it described as the “harassment allegedly experienced by the applicant’s mother and siblings” was found to be due to “individual criminal interests” being “at play”.
On any fair reading, the Tribunal did not reject that aspect of the applicant’s claims relating to the attack on his mother and siblings. It found, however, that it could not be satisfied that such harassment was due to any Convention reason, but was due to criminal interests seeking to (possibly) protect their position.
To the extent, therefore, that the applicant complains that the Tribunal failed to take into account corroborative evidence, in particular, the statement from the applicant’s family’s neighbour, who said she had witnessed the attack on the applicant’s mother and children (CB 120), the Tribunal did not need to specifically refer to this statement in its “Findings and Reasons”. It did not reject the applicant’s claims that the family had been harassed, which was the essence of the corroborative statement provided by the neighbour. But it found that the attack was motivated, and instigated, by criminal interests, and not for any political reason.
Ultimately, in this regard, and also in relation to the applicant’s argument now that he had provided news articles supporting the relationship between paramilitaries, drug traffickers, public officials, and the police, and that his father had given money to political parties to effect a particular political outcome in the past, were clearly pieces of evidence generally before the Tribunal. But these, ultimately, did not assist the applicant because, based on the applicant’s own evidence to the Tribunal at the hearing, it remained unpersuaded that the harm feared was other than derived from criminal interests.
On any fair reading of the Tribunal’s decision record, the Tribunal rejected the applicant’s evidence that the attacks on his family were at the instigation of persons within the State, in relation to whom the applicant’s father held adverse information, and which he was about to disclose to the US authorities on the basis that these claims, which the Tribunal described as “supposedly Convention-related claims”, as being “unsupported, inconsistent and confused”. That there was general information before it, as to various corrupt links between the various groups in Colombia, is plainly the case. But it was the applicant’s inability to link this general information to his own circumstances (because it was “muddled”, “inconsistent and confused”) that led the Tribunal to reject any Convention nexus to these claims.
Ultimately, the Tribunal is not required by s.430 of the Act to refer to every piece of evidence before it. It is required (with reference to sub-s.430(1)(d)) to refer to that evidence and material upon which its findings of fact were based.
In the current case the Tribunal clearly referred to the applicant’s own evidence to find that the cause of the harassment of his family was by “criminal interests”, (see as described under the heading of “Humanitarian Claims” at [58]) by seeking to take “criminal advantage of the weakness of his family in the absence of his father” and “might want to intimidate the family, including the father, into keeping quiet.”
In my view, on at least a fair reading (and certainly on a holistic reading) of its decision record the Tribunal dealt with the applicant’s claims, as put by the applicant to it. It accepted the applicant’s evidence that his father was a drug trafficker, who was arrested and extradited to the United States. It accepted that the applicant’s mother sought police protection, and on at least a fair reading, accepted that the family had been harassed. But what it did find, in relation to the applicant’s supposedly Convention related claims, was that these were unpersuasive, in that they were “inconsistent, confused and unsupported”. The Tribunal did deal with the applicant’s claims as put by him to it.
Ultimately, having regard to s.91S of the Act, what remained (that is, the applicant’s claims to be a member of a particular social group, namely, his family) was insufficient to create, on its own, the requisite Convention nexus. Contrary to what is asserted in ground two of the amended application, the Tribunal did deal with this claim.
When read in this light, the applicant’s grounds of the amended application are not made out.

Conclusion

With the benefit of legal representation, the applicant’s grounds in the amended application are not made out. They do not disclose jurisdictional error on the part of the Tribunal’s decision. For this reason the application, as amended, is dismissed.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 28 October 2009