Diaz v Minister for Immigration & Multicultural Affairs [1999] FCA 67 (27 January 1999)

Last Updated: 19 March 1999

FEDERAL COURT OF AUSTRALIA

Diaz v Minister for Immigration & Multicultural Affairs [1999] FCA 67

JAIME ALBERTO MARIN DIAZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1060 OF 1998

THE HON JUSTICE MARCUS EINFELD AO

27 JANUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1060 OF 1998

BETWEEN:	JAIME ALBERTO MARIN DIAZ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	27 JANUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 9 September 1998 the Refugee Review Tribunal affirmed a ministerial decision to refuse asylum in Australia to the applicant, who is a citizen of Colombia. The applicant seeks review of the Tribunal's decision. His application for review raises no issues of law as provided for in section 476 of the Migration Act, or at all, and in fact, amounts to no more than a recitation of alleged factual mistakes made by the Tribunal.

2 When the matter was listed for directions last November, Mr Diaz appeared unrepresented as he has done today. I advised Mr Diaz then that his application could not succeed as it was because this Court does not function as an appeal court rehearing the case and did not consider the facts. I told him that my reading of the Tribunal's decision, however, suggested that there may be some points of law that could be raised but that it would be impossible for him to do it without some legal assistance. I suggested that he avail himself of some of the available pro bono facilities and it appears that he took the matter up because he went to see a barrister named Colborne who provided him, and he has subsequently provided me, with a single typewritten sheet suggesting what matters of law might be raised.

3 I am not entirely sure that I would have chosen the points that Mr Colborne made, or at least I may have chosen some additional points. In any case, Mr Colborne's document is a quite informal piece of paper and Mr Diaz has not gone on to obtain legal representation but has caused his father and mother to write to the Court from Colombia asking for further time to prepare the case. I might have been more inclined to grant an adjournment were it not for the fact that Mr Diaz also asked the Tribunal for an adjournment to find facts, and for the fact that he came to Australia in October 1997, made his application for asylum in late November, and when that was refused, made his application to the Tribunal on Christmas Eve.

4 In other words, he has had more than a year in which to gather all the information that he could conceivably want. Indeed, when the adjournment applied for at the Tribunal was refused, the Tribunal indicated that if he could obtain further material, a further hearing could be convened. Yet nothing further has ever emerged. I might also have granted him an adjournment today in order to obtain legal representation, had I thought that he would earnestly go about obtaining such representation and also if I thought on reflection that there were weaknesses in the Tribunal's determination that might lead to an overturning of the determination and the remittal of the matter for a further hearing. Although I do see some problems in the Tribunal's findings and determinations, I have concluded, as discussed in argument, that they do not go to the central issue raised by Mr Diaz's application for refugee status.

5 His case is based upon the fact that he fears danger and persecution in Colombia - even death - by reason of his association with his father. He himself does not seem to have had any particular reason why lawless forces in the country might seek to harm him, other than as a citizen of Colombia living in what is effectively a lawless society or one where law and order and government protection of citizens virtually do not exist. It is a tragic situation but as I pointed out in the course of the hearing, Australia cannot conceivably give or be required to give asylum to a whole country of people who fear harm at the hands of warlords and militias, informal and otherwise.

6 His association with his father, who did suffer some persecution some years ago, and perhaps, as he informs me, the fact that his aunt was killed by a group or individual, lead to the possibility that his family associations might give rise to one of the grounds for persecution covered by Geneva Convention. Only the possibility that he might be persecuted because he belongs to a social group, ie his family, appears to have any conceivable validity, and it appears to be answered by the fact, as his father now writes, that he and those with him are living, as I think it was described, in tranquillity in the country. No doubt, that is a relative expression because from all reports, nobody lives a particularly tranquil life in Colombia.

7 The applicant's assault on the Tribunal's factual findings does not deal with these matters. Many of the facts which he asserted to the Tribunal were accepted. Some were rejected and most of those were rejected on the basis of a rejection of his credibility. Judges of the Court have previously commented adversely about this mechanism of rejecting claims by a lay Tribunal not providing the benefit of cross examination, contrary evidence and legal representation. If this were a case where the credibility findings went to the core of the case, I might have considered adjourning the case for a short time in order that Mr Diaz get some legal representation to argue the matter.

8 However, for all its possible weaknesses, the Tribunal's decision actually was that he was in genuine fear of harm, possibly even worse, but that his fear was not convention-based. As it seems to me, therefore, the credibility findings in this case did not need to be made. To the extent to which Mr Diaz's evidence was rejected, it did not go to the issue as to whether he was facing persecution for a convention reason. As I see it, his situation in the country, whilst certainly risky, is the same as most of his fellow citizens. This situation does not provide a legal basis for overturning the Tribunal's decision and I must therefore dismiss the application.

[After discussion]

9 The respondent has made application for costs, he having been successful in the litigation. It is perfectly clear that this applicant would not be able to meet such an order and in fact is likely to be out of the country before any such order could even be taken out, let along executed. The possibility that he might be able to make an application for some form of resident status in Australia when he gets back to Colombia, would be adversely affected if he owed the Commonwealth any money under an order for costs as would then be the fact. Having regard to the situation that exists in Colombia, I do not think that that restriction should be imposed upon his opportunity to obtain some form of resident status in the country. Accordingly, I make no order as to costs in the matter.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated: 27 January 1999

The Applicant appeared in person.
Counsel for the Respondent:	Mr R. T. Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 January 1999
Date of Judgment:	27 January 1999