Jarrin, Sonia Margoth Jarrin & Ors v Minister for Immigration & Multicultural Affairs [1998] FCA 765

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of Refugee Review Tribunal - no error of law - Tribunal not required to make its own enquiries in the circumstances of the case - applicants not members of "a particular social group" - Tribunal member rejected applicant's evidence that she had been unlawfully detained - rejection of evidence not unreasonable - applicants not persecuted for a Convention reason

Migration Act 1958 (Cth), s 476

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 142 ALR 331, applied

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, applied

JARRIN and ors v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 196 of 1998 MADGWICK J

25 June 1998

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 196 of 1998

BETWEEN: SONIA MARGOTH JARRIN JARRIN LUIS OCTAVIO GUANA CANDO CHRISTIAN OCTAVIO GUANA JARRIN ESTABAN PAUL GUANA JARRIN SONIA GABRIELA GUANA JARRIN

Applicants

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE(S): MADGWICK

DATE OF ORDER: 25 JUNE 1998

WHERE MADE: SYDNEY

SHORT MINUTES OF ORDERS

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicants are to pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 196 of 1998

BETWEEN: SONIA MARGOTH JARRIN JARRIN LUIS OCTAVIO GUANA CANDO CHRISTIAN OCTAVIO GUANA JARRIN ESTABAN PAUL GUANA JARRIN SONIA GABRIELA GUANA JARRIN

Applicants

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE(S): MADGWICK

DATE: 25 JUNE 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT (Revised from transcript) HIS HONOUR: This is an application for a review of a decision of the Refugee Review Tribunal constituted by Ms McIllhatton ("the Tribunal"). The applicants are an Ecuadoran family. The principal applicant, Mrs Jarrin, and two of her children came to Australia on 10 December 1994. Her husband and their other two children arrived three months later. The applicant was a school teacher, who later ran a pharmacy, and her husband an economist. On 7 March 1995 they lodged a combined application for protection visas with the relevant department which was refused. They sought review of that primary decision before the Tribunal. The decision of the Tribunal was that the primary decision not to grant a protection visa should be affirmed. The question is whether the applicants or any of them are refugees within the reach of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees, see subsections 5(1) and 36(2) of the Migration Act 1958 (Cth). In order to succeed the applicants would need to show that they had a well founded fear of persecution for reasons of membership of a particular social group or their actual or imputed political opinion, and that they are unable, or because of such fear unwilling, to avail themselves of the protection of Ecuador. It is now well-settled that the question is whether there is a real chance that they will be subject to persecution for a Convention reason: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567. One feels considerable sympathy for the applicants. In the early 1980s Ecuador was ruled by a right-wing politician, Leon Febres Cordero, who achieved power through some kind of election. The human rights record of his government appears to have been about that to be expected from right-wing governments in Latin America at that time, which is to say, appalling. Mrs Jarrin's brother, Arturo, was the leader of a political group known as Alfaro Vive, Carajo! (AVC). The AVC was a small leftist revolutionary group. It carried out acts of terrorism, insurgency and crime and became the major subversive group in Ecuador in the 1980s. Its members would engage in actions such as kidnappings, robberies, gaol breaks and the occupation of media outlets to publicise their aims and finance their activities. The Cordero Government crushed them in the mid-1980s. The brother, Arturo, was arrested in 1984 as was Mrs Jarrin. Other members of her family, including her mother, were also arrested. In March 1985, Arturo escaped from prison with the aid of AVC members. Later in the year, Mrs Jarrin's brother-in-law disappeared. Mrs Jarrin's mother, Beatriz, became active in a group representing the parents and relatives of "the disappeared," again, along sadly familiar Latin-American lines. It is significant, as will appear, that the mother was evidently a woman of courage and not inclined to political passivism. In 1986, Arturo fled the country and made his way to Panama, evidently intending to seek foreign support for his insurgent movement. The United States CIA apprehended him and handed him to the Ecuadoran authorities, who murdered him either in Panama or in Ecuador.