Colocado v Minister for Immigration & Multicultural Affairs

[2001] FCA 391

FEDERAL COURT OF AUSTRALIA

Colocado v Minister for Immigration & Multicultural Affairs [2001] FCA 391

MIGRATION – refugee – refusal of class (XA) protection visa – application for review of decision by Refugee Review Tribunal – no ground within s 476(1) of Migration Act 1958 specified in application – no apparent error in reasons of Refugee Review Tribunal – no appearance by applicant at directions hearing – application for dismissal of action under Order 10 Rule 3(2) Federal Court Rules

Migration Act 1958 (Cth) s 476
Federal Court Rules Order 10 r3(2), Order 35 r7(2)

MARIO COLOCADO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 130 OF 2001

EMMETT J
30 MARCH 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 130 OF 2001

BETWEEN:	MARIO COLOCADO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	30 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
   2. The applicant pay the respondent’s costs.
   3. The respondent inform the applicant in writing as soon as practicable of the terms of these orders and of the terms of Order 35 rule 7(2)(a) of the Federal Court Rules.

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	N 130 OF 2001

BETWEEN:	MARIO COLOCADO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	30 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is citizen of the Philippines who arrived in Australia on 16 July 2000.  On 28 August 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs.  On 1 September 2000 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused to grant the protection visa.  On 4 October the applicant applied for a review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 8 December 2000, the Tribunal affirmed the decision not to grant a protection visa.

2. The applicant claimed that he left the Philippines because his life was in danger from members of the New Peoples Army (“NPA”).  He claimed that his father is a farmer who produces rice, fruits and vegetables in Tanza.  Since the applicant's childhood, NPA members have asked his father for donations of this produce.  The applicant was unable to find employment as an aircraft maintenance technician, so he became self-employed on the farm and also worked as a gardener for various land owners and in public parks.  He did this from 1987 to 2000. 

3. He said that he gave the NPA some of his produce.  However, in late 1998 the NPA tried to recruit him.  He did not want to tell them he was unwilling to join as they might harm him, so he left the Philippines temporarily for three months.  In 2000 they again tried to recruit him, they punched him in the stomach and threatened to fire a gun at him.  They gave him three months to join.  They said if he did not do so that they would “take” him.  He did not think the Philippines’ authorities would protect him because his family was known to them as NPA supporters or sympathisers.

4. From 1984 the applicant was employed as a driver. In 1998 two NPA men said they wanted to hitch a ride with him. They did this on most Saturdays from May 1998 to October 1998. On each occasion they collected a box, which they later told him contained guns. In January 1999 he stopped driving, and applied to come to Australia. The applicant told the Tribunal the purpose of this trip was to avoid the NPA men.

5. The Tribunal asked the applicant why he feared the security forces and he responded that he feared they would know about the guns he had carried.  The Tribunal put to him that it was almost two years since he had done this by the time he had left the Philippines, and that the authorities would have taken some action by then if they had had any knowledge of the matter.  He then indicated that he did not fear the government.  However, later he claimed that he feared the authorities might find out about the guns and the NPA would assume he was an informer.

6. The Tribunal had before it a typed two page statement and protection visa application forms in which no reference was made, even obliquely, to the applicant working as a driver for many years ferrying guns for the NPA in Cavite or to any fears the applicant might have had because he had undertaken any tasks for the NPA.  The applicant asked the Tribunal to accept that, although he had told his solicitor about those matters, she did not include them in the statement or the forms.  He asked, in effect, that the Tribunal disregard the documents and take as his claims those made in oral evidence before the Tribunal. 

7. The applicant’s solicitor did not attend the hearing, and the Tribunal did not have the opportunity to hear her view on the question of the documents.  However, the applicant’s willingness to continue using her services or, having done so, his failure to correct the written account with her assistance as soon as he became aware of its submission, casts doubt, according to the Tribunal, on his claim that he told his solicitor about being a driver and ferrying guns.

8. The Tribunal considered that the applicant's claim that he did not tell his solicitor was not plausible.  The Tribunal considered that there was no explanation for his failure to tell his solicitor about the ferrying of guns unless in reality such an occurrence did not occur.  The Tribunal therefore concluded that the applicant was untruthful when he claimed that he ferried guns for the NPA in 1998 and did not accept that he had done so.

9. The Tribunal was satisfied that the applicant was a national of the Philippines and that he had lived in Cavite throughout his life in the Philippines.  However, given its serious doubts about the applicant’s general credibility, and evidence from the Department of Foreign Affairs and Trade, which indicates that the NPA are not known to be active in Cavite at all, the Tribunal was not satisfied that the applicant has a subjective fear of the NPA or of the Philippines’ authorities because of any imputed links with the NPA.  The Tribunal therefore found that the applicant did not have a well-founded fear of any Convention related persecution.

10. When the matter was called on today, there was no appearance for the applicant.  Under Order 10, Rule 3(2) of the Federal Court Rules, if an applicant does not appear before the Court on a directions hearing, the Court may dismiss the application or make any other order which it thinks proper.  The solicitor for the Minister now asks for an order of dismissal pursuant to that provision.

11. The application to this court specifies no ground within s 476(1) of the Migration Act 1958.  Further, there does not appear to me to be any error in the reasons of the Tribunal, which are before the Court.  Accordingly, I consider that it is appropriate to order that the application be dismissed with costs.  However, I propose to direct the Minister to inform the applicant in writing as soon as practicable of the terms of these orders and of the terms of Order 35 rule 7(2)(a) of the Federal Court Rules.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             30 March 2001

Counsel for the Applicant:	No appearance
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	30 March 2001
Date of Judgment:	30 March 2001