Cruz, Marciano Marcelo v Minister for Immigration & Multicultural Affairs

[1996] FCA 937

IN THE FEDERAL COURT OF AUSTRALIA                  )
  )
NEW SOUTH WALES DISTRICT REGISTRY                 )          NG 494 of 1995
  )
GENERAL DIVISION  )

MARCIANO MARCELO CRUZ

Applicant

MINISTER FOR   IMMIGRATION and   MULTICULTURAL AFFAIRS   
  Respondent

Coram:           Whitlam J
Place:              Sydney

Date:31 October 1996

REASONS FOR JUDGMENT

This is an application under s 476 of the Migration Act 1958 ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") refusing to grant the applicant a protection visa. The Tribunal was not satisfied that he was a refugee within the meaning of Article 1 of the Refugees Convention as amended by the Refugees Protocol. Specifically, it concluded: "the Tribunal finds that there is not a real chance that the applicant would face persecution for one of the reasons set out in the Convention if he were now to return to the Philippines."

The applicant had arrived in Australia in 1985.  The "key issue" before the Tribunal, according to his solicitor's written submissions, was the recruitment practices of the New

Peoples Army ("NPA") in the Philippines.  The Tribunal summarized the applicant's evidence before it as follows:

"The applicant stated that he was afraid to return to the Philippines because prior to his departure in 1985 he had refused to join the New People's Army (NPA).  He said that the Philippines would not be safe for him even though these events happened ten years ago.  He said that the NPA would be able to find him anywhere in the Philippines.

The applicant said that he was approached by the local NPA commander on three occasions in early 1985.  This person asked him to join the NPA.  He refused on each occasion and on the last occasion was told that his safety could not be guaranteed.  He was threatened with a gun.  The applicant then went to Manila to stay with a cousin and made arrangements to leave the Philippines.

The applicant said that the NPA wanted him to join their ranks because he had been an officer cadet and had had some weapons training.  In addition, he was an influential figure with the young men in his area.  The applicant said that a number of his friends, including a cousin, were murdered by the NPA for refusing to join the organisation.

The applicant said that the NPA were still looking for him.  He said that he had received a letter from his sister in 1992 which stated that it was not safe for him to go back to the Philippines because the NPA were asking when he would return.  A copy of that letter is contained on the applicant's departmental file."

After setting out the legislative framework and the test of refugee status laid down in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, the Tribunal stated its findings of fact by reference to the applicant's evidence and the other material before it. It said:

"As the applicant's account does not accord with known information about NPA practices, the Tribunal doubts that he was ever involved in the incidents he has described in which he was intimidated and threatened.

In any event, even if the Tribunal were to accept that in 1985 the applicant was involved in the incident which he described, the Tribunal would conclude that the risk today of any harm to the applicant at the hands of the NPA would be remote.

Considerable changes have taken place in the Philippines since the applicant left which indicate that the applicant would not be at risk were he to return.  ... it would seem that the NPA does not have the resources or the political will to follow up on matters, such as the applicant's refusal to join, which occurred many years ago.

... Furthermore, the NPA does not operate in all areas of the Philippines and the applicant would be able to locate to an area outside of their influence ...  The applicant denied that he would be able to live elsewhere, but the Tribunal rejects his assertions.

The Tribunal also considers that the letter provided by the applicant, which he states is from his sister, adds no weight to his claims.  The objective evidence is such that it outweighs any evidentiary value which the letter may have."

The amended application set out the following grounds:

"(a)The decisions involved errors of law, namely:

(i)The Tribunal failed to adequately consider that the Applicant had a "well-founded fear of persecution" if he were compelled to return to the Philippines, under Article 1 of the Convention relating to the Status of Refugees.

(ii)The Tribunal failed to adequately consider that the Applicant did not have the same political opinion as the NPA, which the Applicant was being coerced into joining, and that consequently would suffer persecution if he were compelled to return to the Philippines due to his refusal to join such organisation.

(iii)The Tribunal failed to adequately consider that the NPA has been responsible for the deaths of many prominant [sic] prople [sic] including mayors, police commanders and business people, and that consequently the Applicant
would suffer persecution if he were compelled to return to the Philippines due to his refusal to join such organisation.

(iv)The Tribunal failed to distinghuish [sic] civilians with previous military training, such as the Applicant has, and other ordinary civilians.

(v)The Tribunal placed undue weight upon the statement of an author, a former member of the NPA.

(b)The decision maker did not observe the procedures, required by the Migration Act, in connection with the making of the decision.

(c)There was no evidence or other material to justify the making of the decision."

Grounds (a)(i)-(v) excite immediate suspicion that the applicant is inviting the Court to enter into a reconsideration of the merits of the Tribunal's decision.  This was unfortunately confirmed in oral argument when, by way of illustration, ground (a)(v) was developed. 

The information before the Tribunal included a book published by a former member of the NPA.  The Tribunal referred to statements in this book about recruitment practices of the NPA and that organisation's attitude towards people leaving the NPA in order to arrive at its findings.  The applicant's solicitor submitted that no weight could be placed on the author's statements because elsewhere in the book there was a copy of a letter he had written to a scriptwriter, confessing that he had lied to that person regarding his capture and that he had, in fact, surrendered.  This submission plainly involves an attack on the facts as found by the Tribunal.  It does not identify an error of law available as a ground of review under
s 476(1)(e) of the Act. (I should say too, in all fairness, that the Tribunal referred to other information confirming that coerced recruitment was not a feature of the NPA.)

I am bound to say that I had difficulty in following the somewhat confusing submissions made on this part of the applicant's case.  Nonetheless, it was clear that the submissions were based on a complete misconception of the proper role of the Court and the practical restraints on judicial review.  See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 70 ALJR 568 at 575-576.

Grounds (b) and (c) were added, by leave, at the hearing. In respect of (b), it was said that the Tribunal failed to observe s 420(2)(b) of the Act, which provides:

"420.(2)       The Tribunal, in reviewing a decision:

...

(b)must act according to substantial justice and the merits of the case."

Ground (b) was not usefully developed in oral argument. The parties were given leave to file written submissions. Counsel for the respondent points out that it has been held that s 420(2)(b) does not prescribe a procedure required by the Act to be observed in connection with the making of the Tribunal's decision within the meaning of s 476(1)(a) of the Act: Velmurugu v Minister for Immigration and Ethnic Affairs (unreported, Olney J, 23 May 1996).  The applicant's solicitor apparently accepts that proposition.  However, in his submission in reply, he seeks instead to rely on s 420 generally for the purpose of establishing a ground of review under
s 476(1)(e). This ground is not raised in the amended application and, no leave having been sought or granted further to amend the application, such a ground may not be relied upon.

In his written submissions the applicant's solicitor fails to identify any "particular matter" or "particular fact" for the purposes of s 476(4)(a) or (b). Accordingly, ground (c) cannot be made out.

The application will be dismissed with costs.

I certify that this and the preceding 5 pages are a  true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam

Associate:

Date: 31 October 1996

Solicitor for the applicant:             Mr M.P. Newman of Newman & Associates

Counsel for the respondent:  Lucy McCallum

Solicitor for the respondent:  Australian Government Solicitor

Date of hearing:  11 July 1996

IN THE FEDERAL COURT OF AUSTRALIA                  )
  )
NEW SOUTH WALES DISTRICT REGISTRY                 )          NG 494 of 1995
  )
GENERAL DIVISION  )

MARCIANO MARCELO CRUZ

Applicant

MINISTER FOR   IMMIGRATION and   MULTICULTURAL AFFAIRS   
  Respondent

Coram:           Whitlam J
Place:              Sydney

Date:31 October 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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