Balbin, Juanita v Minister for Immigration and Multicultural Affairs

[1998] FCA 1628

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 742  of   1998

BETWEEN:	JUANITA BALBIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		LINDGREN J
DATE OF ORDER:		7 DECEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed;

1. the applicant pay the respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 742 of 1998

BETWEEN:	JUANITA BALBIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	7 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

INTRODUCTION

The applicant (“Ms Balbin”) applies under s 476 (1) of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the RRT”) dated 26 June 1998 affirming a decision of the delegate of the respondent (“the Minister”) not to grant her a protection visa. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant be a non-citizen of Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  Article 1A (2) of the Convention provides that a refugee is any person who:

“owing to 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.”

Ms Balbin’s case is that she is outside the country of her nationality, the Philippines, and is unwilling to return to it because of a well founded fear of being persecuted for reasons of her actual or imputed political opinion or membership of a particular social group, namely, “whistleblowers” or the “poor class of society”. 

PROCEDURAL BACKGROUND 
Ms Balbin, a citizen of the Philippines, arrived in Australia on 17 January 1998.  On 16 February 1998 she applied for a protection visa (visa sub-class 866).  A delegate of the Minister refused the application on 27 February 1998.  On 27 March 1998, Ms Balbin applied to the RRT for a review of that decision.  The RRT conducted a hearing on 15 June 1998.  As noted earlier, on 26 June 1998, the RRT affirmed the delegate’s decision.  Ms Balbin filed her application to this Court on 24 July 1998. 

THE DECISION OF THE RRT AND THE RRT’S REASONS
The RRT commenced its reasons for decision by referring to the procedural background, the applicable legislation, and the law relating to the Convention definition of a “refugee”.  It then considered Ms Balbin’s “Claims and Evidence” which were set out in written submissions to the Department of Immigration and Multicultural Affairs, written submissions to the RRT and oral evidence given at the RRT hearing on 15 June 1998.

Ms Balbin claimed that she was a public service officer and had worked for the Metropolitan Water Works and Sewerage Services in Manilla for ten years.  She was responsible for processing water connection applications.  She claimed that the normal length of time required to connect the water ranged from six to twenty four months.  The period in a particular case depended on how much “grease money” was paid.  She added that sometimes a connection application was not processed at all because the client failed to deliver any money.  She claimed that large companies were given priority over other clients because they could afford to pay larger amounts.

Ms Balbin did not approve of the departmental officers’ acceptance of bribes.  She collected evidence against four officers who were notorious for accepting bribes and reported them to the general manager in February 1997.  The officers concerned were investigated and three of them were sacked in June 1997.  The case was widely reported in the media.  Ms Balbin claims that since that time, she has suffered severe harassment.  She received threatening phone calls every few days, even when she was at a friend’s house.  She said that the phone calls were from the three dismissed processing officers.  They would say to her:

“You better watch out, we’re going to find you wherever you are ... the time will come when we will really be able to get at you, and watch out because we won’t stop until we are able to do that.”

On two occasions they threw stones at her house.  On one occasion a message was wrapped around a rock telling her that her life was in danger.  Although Ms Balbin was never physically harmed by the men, she claimed that they had told someone else that they were going to kill her. 

Ms Balbin complained to the local council about the harassment and threats she was receiving but claims the council did nothing to assist.  She also tried to seek help from her employer, but was told that two of the sacked officers belonged to a syndicate which serviced large Taiwanese businesses and that the employer could not offer her protection because the employer was also scared.

Finally, Ms Balbin claimed that she had complained to the police but was told that they had insufficient evidence to support an arrest of any of the men.  She complained that “her life means nothing to the police because she is not rich”.

The RRT asked Ms Balbin if there was any reason why she could not relocate to another town in the Philippines to get away from the men.  She claimed that she had already moved from place to place to avoid harm but had continued to receive threats.  She said that the men could easily bribe people to find her whereabouts and that, “[t]hey said they would never stop until I’m silenced because they were embarrassed.”

The RRT accepted that Ms Balbin feared harm from men whose corrupt practices she had exposed.  However, the RRT considered that Ms Balbin feared harm because the men disapproved of something she had done as an individual, namely, her exposure of their corrupt activity.  It considered that it was clear that the men wanted revenge for what she had done because she had embarrassed them and because they had lost their jobs.  The RRT therefore concluded that the harm which Ms Balbin feared was not directed at her for a Convention reason but arose out of her own actions.

The RRT noted that there was no suggestion that the applicant was being pursued because of her political views or opinion, or because of her membership of a particular social group.  It considered that, while Ms Balbin’s conduct may have been motivated by her political beliefs, there was no evidence to suggest that the men had any interest in her political opinions.  Rather, they were unhappy with her for having exposed their corrupt practices.  For the same reason, the RRT did not accept that the applicant feared harm by reason of her membership of a particular social group consisting of “whistleblowers”.

The RRT finally noted that Ms Balbin had remained in the Philippines for almost six months after she left her job, during which time she was never physically harmed by the men despite their threats.  The RRT was therefore not satisfied that there was a real chance that the applicant would suffer persecution if she were forced to return to the Philippines.

In the result, the RRT was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and concluded that she was not a person to whom Australia had protection obligations under the Convention.

GROUNDS OF APPLICATION FOR REVIEW
Ms Balbin’s grounds of the present application are as follows:

“the Applicant suffered persecution for convention reason Article 1A(2) of the Convention relating to the Status of Refugees, both from the hands of some criminal elements in the Philippine society and its Government.  The Tribunal narrowly misinterpreted the legal meaning of ‘persecution’ as it applies to her case.  When the criminals pursued and threatened the Applicant and the Philippine Government did not do anything to protect her, the Philippine Government is equally guilty of persecuting the Applicant.   The Applicant suffered discrimination when she was advised by a representative of her Government that she can not be given protection because she was up against wealthy businessmen.  In other words she was discriminated against because she belongs to the poor class of society – a very clear picture of ‘membership (though informal) of a social group’ being one of the elements of being a refugee under the Convention.

Again, in interpreting the phrase ‘well-founded fear’ under the Convention the Refugee Review Tribunal made an error.   The Tribunal asserted that the Applicant ‘was never physically harmed’ despite the six months that she stayed in the Philippines after she left her job, ‘despite their threats’.  A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason.   The threats themselves are [a] form of persecution, even if they were not accomplished or executed.

Therefore, the Refugee Review Tribunal made errors of law in applying the provisions of the Convention on the Applicant’s Appeal.

REASONING ON THE PRESENT APPLICATION
The various elements in the definition of “refugee” in the Convention reveal a unity of conception.  Ms Balbin, in her grounds, correctly notes that it is not necessary that persecuting activity be actually that of a government, and that persecution may arise from the activity of others.  It is necessary, however, that government be implicated, such as by acquiescence, or that there be an absence of effective governmental protection against the persecution.

She submits that the persecution of her arises from the activity of the men in question and the inactivity of the government in providing her with protection.  The problem with her case, however, is that there is not present the malignity or enmity directed towards a particular group of which she forms a part.  While I do not think that “the poor” constitutes “a particular social group” within the meaning of the Convention, even if it did, there is not here the attitude or motivation directed against the poor which the Convention definition requires.

The present case is an unfortunate one in which a woman has acted properly by bringing to notice corrupt practices, and suffers, not because she is a member of a particular social group at which persecution is directed, but because of her own commendable individual acts.  Similarly, the case is not one in which the men direct their acts against “whistleblowers” in general with a view to extirpating the practice of whistleblowing, but rather, it is a case in which they harass Ms Balbin because of her particular individual acts against them.

The essential reasoning of the RRT, that the harassment from which Ms Balbin suffered was not for one of the kinds of reasons identified in the Convention definition of “refugee”, is, in my view, correct.

Ms Balbin complains of the following paragraph in the RRT’S Reasons for Decision:

“The Tribunal notes that the applicant stayed in the Philippines for almost six months after she left her job, during which time she was never physically harmed by the men, despite their threats.”

I think that Ms Balbin’s criticism of this paragraph has some merit.  She says in her grounds of application:

“A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason.  The threats themselves are [a] form of persecution, even if they were not accomplished or executed.”

However, the Tribunal did not base its decision on what it “noted”.  The reasoning on which its decision turned, and which I think is correct, is that Ms Balbin’s fear is not for a Convention recognised cause, with the result that she does not fall within the definition of a “refugee”.

One can only have sympathy with a person placed as Ms Balbin is, but the definition must be applied in accordance with its terms and the result is that the application for review must be dismissed.

CONCLUSION
The orders of the Court are that:

1. the application be dismissed;

1. the applicant pay the respondent’s costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             7 December 1998

The applicant was unrepresented
Solicitor for the Respondent:	Ms S Kavallaris of The Australian Government Solicitor’s Office
Date of Hearing:	7 December 1998
Date of Judgment:	7 December 1998