Beras, Jorg Guerrero v Minister for Immigration & Multicultural Affairs

[1997] FCA 415

CATCHWORDS

IMMIGRATION - refugee status - entitlement to a protection visa - review of decision of the Refugee Review Tribunal - whether well-founded fear of persecution - whether error of law or other reviewable error - whether no evidence to justify the making of the decision.

Migration Act 1958 (Cth)

Chan Yee Kin v The Minister for Immigration and Ethnic Affairs     (1989) 169 CLR 379
Magyari v The Minister for Immigration and Multicultural Affairs (unreported:  Judgment delivered 22 May 1997)

No SG 59 of 1996

JORG GUERRERO BERAS v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

O'Loughlin J
Adelaide
22 May 1997

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 59 of 1996
  )
GENERAL DIVISION                 )

B E T W E E N:

JORGE GUERRERO BERAS
  Applicant
  - AND -

THE MINISTER FOR
  IMMIGRATION AND
  MULTICULTURAL AFFAIRS
  Respondent

Coram:    O'Loughlin J
Place:    Adelaide
Date:     22 May 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the costs of the respondent of and incidental to the costs of this application and order, which costs are to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 59 of 1996
  )
GENERAL DIVISION                 )

B E T W E E N:

JORGE GUERRERO BERAS
  Applicant
  - AND -

THE MINISTER FOR
  IMMIGRATION AND
  MULTICULTURAL AFFAIRS
  Respondent

Coram:    O'Loughlin J
Place:    Adelaide
Date:     22 May 1997

REASONS FOR JUDGMENT

The applicant in these proceedings, Jorge Guerrero Beras, arrived in Australia with his step-brother, Daniel Esteban Jiminez Javier, on 6 April 1995. On 27 June 1995, each applied for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) ("the Act").  Their applications being unsuccessful, they each sought review from the Refugee Review Tribunal ("the Tribunal"), but were again unsuccessful.  The applicant now asks this Court to review the decision of the Tribunal.  His step-brother has also instituted separate but like proceedings and his application is the subject of a separate judgment published this day.

The applicant, a bachelor, is aged 31 and is a national of the Dominican Republic.  His father, step-mother and one of his brothers live in Spain and another brother lives in Canada.

In support of his claim for refugee status, the applicant stated that he had been a sympathiser of the Patriotic Union Against Imperialism, a left-wing opposition party.  He claimed that he had been arrested, harassed and mistreated by the police because of his political sympathies.  He also claimed that friends were accused of being communists and had been persecuted.

The applicant said that he had been arrested by the police on two occasions in 1986 and 1987.  He was detained for about six hours on each occasion.  However, the applicant acknowledged when interviewed, that he had not been questioned on political matters on either occasion and he further acknowledged that his apprehension could have been caused by his awareness of possible police suspicions that he was a thief.  In the course of its reasons the Tribunal said:-

"On 27 December 1994 police broke into the house in which the applicant and his step-brother lived.  In his application the applicant stated that he was with his brother at the time and was severely harassed and mistreated by the police; whereas at interview he stated that he was not present and that the raid was in connection with suspected drug-related activities on the part of another resident.  When it was put to him by the interviewer that, from his interview responses, there was no suggestion that the police were aware of his political opinion, the applicant merely retorted that the police can nonetheless make assumptions in this regard.  He made no mention of anything relating to police threats to imprison him and his step-brother for promoting anti-government demonstrations.

He concedes that there is freedom in the Dominican Republic now but maintains that the police persecute young people.

The applicant's brother, a Canadian citizen who was in Australia at the time, submitted a number of reports to
the Department which state that 30 civilians had been killed by the police in the half year to July 1995.  He also claimed in a letter dated 3 June 1995 that just as the applicant and his step-brother (who is also an applicant for refugee status:  Tribunal decision V96/04112) were getting ready to return to the Dominican Republic their family contacted them to say that the police had once again come looking for them and became very upset when they could not find them.  He stated that they were officially accused of promoting anti-government demonstrations, which they have never done.  Such activity carries a heavy penalty and his brothers could be held in gaol for a long time without trial.  However, at interview when asked what prompted him to decide not to return to the Dominican Republic the applicant referred only to high unemployment and the uncertainty surrounding the aftermath of the 1996 presidential elections, and disavowed any knowledge of any police visits in his absence.  He also stated that he fears he could be detained, since many returning Dominicans who are assumed to be bringing a lot of money with them are detained.  He made no mention of fearing for his life or torture, claims which he had made in his application."

The applicant claims that he is now a supporter of the Dominican Revolutionary Party ("the DRP").  He claims that this could lead to him being the victim of over-zealous police authority.  In addition, he believes that if the authorities discover that Mr Javier is his step-brother, he is likely to be persecuted by the police because of his step-brother's participation in political meetings and demonstrations as a member of the left wing Patriotic Union Party ("the PUP").

The Tribunal made the following findings:-

"I accept that the applicant had been a PUP supporter and, more recently, a DRP supporter;  however, his activities had been limited to attending demonstrations - and only one demonstration since 1982.  I also accept that the applicant had been picked up by the police on two occasions; however, on his own evidence, I am satisfied that there is only a remote chance that this was for political reasons and, on his own evidence, the applicant did not experience any difficulties because of his political affiliations or activities.  It may be true, as his witness claimed, that those associated with opposition political parties have difficulty getting employment, but this has not been the applicant's experience."

Applying the test for determining entitlement to a protection visa articulated by the High Court in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 to the circumstances of this case, the Tribunal was satisfied that there was not a real chance of the applicant being persecuted for a Convention reason if he returns to the Dominican Republic.

In his application to this Court for a review of the Tribunal's decision, the applicant has alleged that the decision involved an error of law and that there was no evidence or other material to justify the making of the decision. The applicant submitted that the decision therefore constituted a judicially reviewable decision pursuant to s 476(1)(e) and (g) of the Act. In my opinion, the applicant has failed to point to any of the Tribunal's reasons that could amount to an error of law. The structure of the applicant's grounds in support of his application for an order of review reveals the same approach that was adopted in Magyari v The Minister for Immigration and Multicultural Affairs and to which I referred in detail in my judgment published this day.   The draftsperson of the application has taken each adverse comment, observation, finding or conclusion of the Tribunal, called it a "decision" and then claimed that "there was no evidence to justify the making of this decision".  Sixteen such complaints were made (although eight of them were withdrawn, either during the course of submissions or after judgment had been reserved).  Three of them are set out below.  It is not necessary to quote all remaining grounds as they form part of a pattern:-

"1.6The Tribunal erred in finding that in the past fourteen years the Applicant's political activities in support of the DRP have been no more significant than that of the possibility hundreds of thousands of people who have demonstrated in support of the DRP throughout the Dominican Republic and that he makes no claim to have experienced difficulties because of these activities (see p.9 of the decision).  There was no evidence to justify the making of this decision.

1.7The Tribunal made a finding that the Dominican Republic has not been free of the political oppression which has plagued much of Latin America over the years, but erred in finding that the country information of the Dominican Republic does not indicate much in the way of persecution or other ongoing treatment of Dominicans on political grounds (see p.9 of the decision).  There was no evidence to justify the making of this decision.

1.11The Tribunal erred in finding that these detentions were not connected with the Applicant's political opinion and that the Applicant was released without consequence after a few hours detention on each occasion and that if his name remains on police records there is no reason to believe that these records allude to his political views (see p.11 of the decision).  There was no evidence to justify the making of this decision.

These and like subject matters cannot be regarded as errors of law.  No doubt the applicant would disagree with the conclusions of the Tribunal; no doubt he is disappointed with its ultimate determination.  But that does not expose its reasoning to review for error of law.

Finally, I turn to the "no-evidence" argument.  For the reasons that I have explained in my decision in Magyari, the conclusions of the Tribunal cannot be attacked on the "no evidence ground".  The relevant decision of the Tribunal that the applicant sought to impugn was its decision to affirm the earlier decision of the Minister's delegate denying the applicant any entitlement to a protection visa.  That decision did not require the prior establishment of any particular matter, (c.f. par 476(4)(a) nor was the decision based on a particular fact that did not exist (c.f. par 476(4)(b)).

In my opinion there is no substance in this application.  It must be dismissed with costs.

I certify that this and the preceding       pages are a true copy of the Reasons for Judgment of the Honourable Justice O'Loughlin

Associate:

Dated:

Counsel for the Applicant        :    Mr M W Clisby
Solicitor for the Applicant      :    Paul Kirk Roberts
  & Co

Counsel for the Respondent       :    Australian Government
  Solicitor
Solicitor for the Respondent     :    Ms S J Maharaj

Date of Hearing                  :    19 February 1997