Ignacio, Teodoro v Minister for Immigration & Ethnic Affairs
[1996] FCA 717
•9 AUGUST 1996
CATCHWORDS
IMMIGRATION - appeal from Refugee Review Tribunal - grounds of review permitted by s 476 of Migration Act 1958 - whether real chance of persecution still existed - submission that, having found or assumed persecution once existed, Tribunal not entitled to conclude no longer a real chance of it, in absence of "compelling evidence" - submission that compelling evidence not to be found in newspaper reports of change in political situation.
Migration Act 1958, s 476
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 (HCA/FC)
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
TEODORO IGNACIO v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ORS
No NG 687 of 1995
Lindgren J
Sydney
9 August 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 687 of 1995
GENERAL DIVISION )
BETWEEN:
TEODORO IGNACIO
Applicant
AND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First RespondentKAY RANSOME sitting as REFUGEE REVIEW TRIBUNAL
Second Respondent
CORAM:Lindgren J
PLACE:Sydney
DATE:9 August 1996
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed.
The applicant pay the first 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 ) No NG 687 of 1995
GENERAL DIVISION )
BETWEEN:
TEODORO IGNACIO
Applicant
AND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First RespondentKAY RANSOME sitting as REFUGEE REVIEW TRIBUNAL
Second Respondent
CORAM:Lindgren J
PLACE:Sydney
DATE:9 August 1996
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for an order of review of a decision of the second respondent ("the Tribunal") made on 7 August 1995. That was a decision by which the Tribunal found that the applicant and his family members included in his application referred to below, were not refugees. By the Tribunal's decision, the decision then under review was varied so that it thenceforth had effect as a decision to refuse to grant the applicant and those family members protection visas.
When the proceeding was before the Court on 4 December 1995, the Tribunal indicated that it would submit to such order as the Court might make, save as to costs. Accordingly, only the applicant and the first respondent participated in the hearing.
NATURE AND GROUNDS OF APPLICATION
The application refers to these grounds: (a) that there was an improper exercise of the powers conferred by the Migration Act 1958 ("the Act") on the Tribunal in that it had failed properly to evaluate the chance of persecution of the applicant if he were to return to his country of nationality, the Philippines; (b) that the Tribunal had erred in law in failing to conclude on the basis of threats to the applicant by members of the National People's Army ("NPA") when he lived in the Philippines and on the basis of evidence as to human rights abuses in the Philippines, that he was a refugee. The definition of "refugee" is found in the Convention relating to the Status of Refugees signed at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees signed in New York on 31 January 1967 (together, "the Convention").
These grounds echo paras 476 (1) (d) and (e) of the Act. The applicant's written submissions referred to the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). However, it was not disputed on the hearing that the application was to be treated as one brought under s 476 of the Act.
On the hearing, the applicant relied upon paras 476 (1) (d), (e) and (g) of the Act. There was no objection to his doing
so, notwithstanding the omission of any reference to the ground referred to in para (g) in the application as filed. The three paragraphs relied on are as follows:
"476 (1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a)...; (b) ...; (c) ...;
(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f)...;
(g)that there was no evidence or other material to justify the making of the decision."
The decision of the Tribunal is made a "judicially-reviewable decision" by para 475 (1) (b) of the Act. Sub-section 476 (2) provides that the following are not grounds upon which an application may be made under sub-s 476 (1):
"(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power."
The "improper exercise of power" ground referred to in para 476 (1) (d) is limited by sub-s 476 (3) which provides as follows:
"The reference in paragraph (1) (d) to an improper exercise of a power is to be construed as being a reference to:
(a)an exercise of a power for a purpose other than a purpose for which the power is conferred; and
(b)an exercise of a personal discretionary power at the direction or behest of another person; and
(c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
but not as including a reference to:
(d)taking an irrelevant consideration into account in the exercise of a power; or
(e)failing to take a relevant consideration into account in the exercise of a power; or
(f)an exercise of a discretionary power in bad faith; or
(g)any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c)."
Similarly, the "no evidence" ground referred to in para 476 (1) (g) is limited by sub-s 476 (4) which provides as follows:
"The ground specified in paragraph (1) (g) is not to be taken to have been made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."
PROCEDURAL ROUTE LEADING TO THE PRESENT APPLICATION
The applicant is a citizen of the Philippines who entered Australia on 11 December 1992 as a visitor. His entry permit allowed him to stay until 14 March 1993.
On 9 March 1993, the applicant lodged applications for refugee status in Australia and for a domestic protection temporary entry permit. His application included his wife and three children.
On 27 May 1993 a delegate of the first respondent refused the applications.
The applicant applied for review by the Refugee Status Review Committee by an application bearing date 18 June 1993. On 1 July 1993, amendments to the Migration Act 1958 took effect which abolished that Committee and established the Tribunal in its place.
By amendments to the Act effective as from 1 September 1994, "protection visas" were introduced. Under transitional provisions, the applicant's pending application was required to be treated as an application for a protection visa: see ss 31 and 39 of the Migration Reform Act 1992 (Act No 184 of 1992).
On 21 July 1995 the Tribunal conducted the hearing in question and on 7 August 1995 it gave its decision which is the subject of the present application. That application was filed on 5 September 1995.
DECISION AND REASONS FOR DECISIONS OF THE TRIBUNAL
The Reasons for Decision of the Tribunal commenced by reviewing the decision of the delegate of the Minister dated 27 May 1993. They next set out under the heading "Background", the facts relating to the applicant and his wife. The most convenient way of recounting those facts is for me to set out that part of the Tribunal's Reasons for Decision:
"Background
The applicant and his wife established a rice buying business in the province of Neuva Ecija in 1985. They operated the business themselves and did not employ any workers. Sometime before Christmas that year a group of people, who later identified themselves as members of the New People's Army (NPA), came to their house and asked for food and money. The applicant and his wife gave what they could and thought that that would be the end of the matter.
The applicant and his wife stated that the NPA continued to visit them, however, and demanded money and rice which they gave. The NPA told them not to tell the military what was happening. This
continued up until some time in 1987. They then moved to the province of Bulacan where they re-established their rice buying business.
The applicant and his wife stated that they had no further trouble in Bulacan until some time in 1989 when they were again approached by the NPA. The NPA told them that they would have to continue making payments and also make good the payments they had not made between 1987 and 1989. From that time on the applicant and his wife made monthly payments to the NPA.
In about May 1992 the applicant and his wife were stopped at a roadblock by NPA rebels. The load of rice which they were carrying was confiscated. The applicant was threatened that if he did not continue to make payments his family would be harmed. The applicant said that he reported this incident to the military police but no action resulted. In June and July of that year the NPA made further visits to the applicant asking for money. The applicant said that he had to borrow the money to make further payments.
In August 1992 the applicant and his wife were again stopped on the road by the NPA. This time the applicant was assaulted, handed a black ribbon and told that this was the last warning he was going to receive. The applicant said that the black ribbon was a sign that he would be killed. The applicant and his wife then made arrangements to leave the Philippines. They disposed of their possessions, sold the business in about September 1992 and came to Australia in December.
The applicant said that if he were to return to the Philippines he could be killed by the NPA. He said that the NPA is everywhere in the Philippines and they would seek to obtain money from him again.
Following the hearing the applicant's adviser provided a written submission in support of her client's application. It was submitted that the applicant and his wife are members of a particular social group, that group being merchants engaged in the buying and selling of grains and feeds such as rice. It was further submitted that because of their membership of this group they were targeted by the NPA and that the government failed to give them protection."
The Reasons for Decision of the Tribunal proceed by outlining the "Legislative framework." They state that the prescribed criteria for the grant of a protection visa are set out in Part 866 of Schedule 2 of the Migration Regulations. It is a criterion for the grant of a protection visa that the applicant is a person to whom Australia has protection obligations under the Convention. Of critical importance is the provision of article 1 of the Convention to the effect that for present purposes 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; ..."
The Reasons for Decision proceed by referring to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan's case"). In particular, they correctly recite that whether an applicant has the status of a refugee is to be determined in the light of the facts existing at the time when the determination is required, and that for a fear of being persecuted to be "well-founded" there must be both a subjective fear of persecution and, objectively, a "real chance" of persecution if the person were to be returned to his or her country of nationality. The Tribunal noted, in particular, that:
"A 'real chance' is one that is 'substantial, as distinct from a remote chance' (at 389 per Mason CJ), or one that is not 'remote or insubstantial' (at 407 per Toohey J) or 'a far-fetched possibility' (at 429 per McHugh J)." (at p 5 of the Reasons for Decision)
Under the heading "Conclusions", the Tribunal noted, "... both the applicant and his wife have presented a consistent and coherent account of events over time and the Tribunal therefore extends to them the benefit of the doubt and accepts their account as truthful" (at pp 5-6 of the Reasons for Decision).
The Tribunal proceeded by noting something of the history of the NPA since it was formed in the late 1960s. It referred to the NPA as "the armed wing of the Communist Party of the Philippines" and recorded that it "has been responsible for the deaths of many prominent people including mayors, police commanders and business people" (at p 6 of Reasons for Decision). It recorded that senior government officials, United States servicemen and executives of foreign companies have also been the targets of attack.
The applicant relies upon the following passage:
"While there has been a considerable decline in recent years in the number of encounters between insurgent groups and the military, there are still reports of human rights abuses by the NPA in the Philippines."
The source cited by the Tribunal for that statement was the United States Department of State's Country Reports on Human Rights Practices for 1994. Accordingly, the word "still" in the passage quoted means "still in 1994."
The Reasons for Decision proceed by noting the applicant's allegations that as the owner of a business he was required to pay protection money to the NPA. They record that information from a number of sources confirm the NPA's practice of demanding money to finance its operations. The particular paragraph in the Reasons concludes with the sentence, "[i]t is therefore possible that money was demanded from the applicant by the NPA and that he was threatened by NPA members" (at p 6 of Reasons for Decision).
There follow these paragraphs which have proved to be the focus of attention on the present hearing:
"The applicant and his wife has [sic] stated that the events in question occurred between 1985 and 1992 when they left the Philippines. Considerable changes have taken place in the Philippines since the applicant left which indicate that he would not be at risk were he to return. As stated above, the NPA is the armed wing of the Communist Party of the Philippines. The CPP was legalised in 1992. In addition, President Ramos has introduced an amnesty program for, amongst others, communist rebels. The most recent reports indicate that the NPA now has a strength of approximately 7000 and may be on the point of collapse due to in-fighting and the peace initiatives by President Ramos (see Economist 30 April 1994; Australian 3 May 1994; Asia Week 9 March 1994). In these circumstances 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 failure to pay taxes, which occurred some years ago.
The Tribunal notes that the applicant sold his business prior to departing the Philippines. If he
were to return to the Philippines he could gain employment in another sector of the economy. Furthermore, the NPA does not operate in all areas of the Philippines and the applicant would be able to relocate to an area outside of their influence (see CISINFO document PHL00260, 20 August 1992).
The current situation in the Philippines is such that the Tribunal is of the view that any chance of the applicant facing persecution should he return to the Philippines is remote. In the light of this finding there is no need for the Tribunal to consider whether the applicant and his wife are members of a particular social group as was submitted by the applicant's adviser.
In the light of all the evidence available in this case 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 Tribunal therefore finds that the applicant and those family members included in the application are not refugees."
REASONING
The applicant's complaint revolves around the Tribunal's conclusions (a) that by reason of what the Tribunal referred to as a change in the circumstances in the Philippines, it seemed that the NPA did not have the resources or the political will to follow up on matters such as the applicant's failure to pay taxes which occurred some years ago, and (b) that any chance of the applicant's facing persecution should he return to the Philippines was "remote".
The applicant refers to Chan's case at 391 where the Chief Justice said this:
"The Full Court placed insufficient weight upon the circumstances as they existed at the time of
departure which grounded Mr. Chan's fear of persecution. In the absence of compelling evidence to the contrary the Full Court should not have inferred that the grounds for such fear had dissipated. While the question remains one for determination at the time of the application for refugee status, in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left the country of his nationality. This is especially the case when the applicant cannot, any more than a court can, be expected to be acquainted with all the changes in political circumstances which may have occurred since his departure. Those changes are a matter which, if they were to be relied upon, needed to be established and stated by the delegate in reasons. As I have said, the required justification was not established. However, I should not be taken as saying that the delegate failed to meet his obligations under s. 13 of the Act. As I see it, his error was one of acting upon impermissible reasons and then reaching unreasonable conclusions." (emphasis supplied)
Counsel for the applicant also referred to a passage in the judgment of Toohey J (at 408) to a generally similar effect.
In summary, the applicant's submission is that once the Tribunal accepted the applicant's allegation of extortion and threats by the NPA, it could conclude that there was not, by the time of its determination, a real chance of their being resumed, only if there was before it compelling evidence to that effect. The applicant submits that there was no such compelling evidence before the Tribunal in the present case.
The evidence referred to by the Tribunal in support of the change in circumstances comprises three newspaper reports. Notwithstanding this, and the fact that the Tribunal recorded that in 1994 there were reports of human rights abuses by the NPA in the Philippines, I do not think that it can be said that any of the permissible grounds under s 476 of the Act are made out.
The ground which appears to have most relevance to the present case is that found in para 476 (1) (g), namely, "that there was no evidence or other material to justify the making of the decision". It must be remembered, however, that in reviewing a decision, the Tribunal:
"(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case." (sub-s 420 (2))
The reference to "other material" in para 476 (1) (g) makes it clear that a decision of the Tribunal may be justified by material other than "evidence".
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 ("Wu's case") Brennan CJ Toohey, McHugh and Gummow JJ observed that the term "evidence" may provide little assistance when used in the context of administrative decision-making as distinct from that of civil litigation. Political and social developments in a foreign country of the kind referred to in the Tribunal's Reasons for Decision are apt to be established by the reports of persons and bodies
likely to be well informed. The three newspaper reports referred to by the Tribunal are in the public domain. The applicant has not put them into evidence and has not attacked any particular contents of them. His submission must be that newspaper reports inevitably fail to satisfy the passage from the judgment of Mason CJ in Chan's case quoted earlier, because, of their nature, newspaper reports cannot provide "compelling evidence" of dissipation of a real chance of persecution that once existed.
I do not agree that three newspaper reports, for no reason other than their possession of that character, could not provide evidence meriting that description. This is sufficient to dispose of the submission. (I note, in passing, that I am not dissuaded from the view just expressed by the fact that the Tribunal stated that there were "still reports of human rights abuses by the NPA in the Philippines" in 1994.)
There are, however, in any event, distinctions between Chan's case and the present case, which render the passage relied on by the applicant inapplicable to the Reasons for Decision of the Tribunal. Chan's case was concerned with an application under the ADJR Act for review of a decision of the delegate of the Minister. The present case is an application for review under s 476 of the Act on grounds specified in sub-s 476 (1) subject to the limitations found in sub-ss 476 (2), (3) and (4) noted earlier. Importantly, in Chan's case there was no factual finding by the Minister's delegate that by the time of the determination of Mr Chan's application, there was, as a result of changes in China, little or no likelihood of persecution. The passage from the judgment of Mason CJ relied on by the present applicant was directed to the approach which had been taken by the Full Court of this Court, not the approach which had been taken by the delegate. In substance, Mason CJ was saying that against the background that the delegate had not dealt with the issue of change in China, the Full Court was not entitled, in the absence of compelling evidence, itself to infer that change had occurred. The observations of the Chief Justice are not expressed or intended to apply, and in my view they cannot properly be applied, to the approach of the Tribunal to the question whether a real chance of persecution which once existed still exists at the time when it is called upon to determine an application. To apply them to the decision-making process of the Tribunal would be to adopt a narrow and theoretical approach for which there is no warrant; cf Wu's case at 490-491 (Brennan CJ, Toohey, McHugh and Gummow JJ), 505-507 (Kirby J).
The question of the weight to be given to particular material before the Tribunal is, of course, not a matter on which my view is to prevail over that of the Tribunal. The simple fact of the matter is that it is not shown that there was not, in terms of para 476 (1) (g), "evidence or other material to justify the making of the decision" before the Tribunal.
In relation to the "improper exercise of power" ground referred to in para 476 (1) (d), it seems clear to me that paras 476 (3) (b) and (c) have no application since we are not concerned here with a discretionary power. Nor do I think that para 476 (3) (a) is activated since the exercise of the power was in my view clearly not an exercise for a purpose other than a purpose for which the power is conferred.
Nor do I think that the "error of law" ground referred to in para 476 (1) (e) is made out. Whatever may be the precise scope of that paragraph, once it is seen that there was evidence or other material to justify the making of the decision, it cannot be said that there was an error of law in the present case.
In his submissions, counsel for the applicant also pointed to the fact that the Tribunal made no express finding of whether persecution had occurred, that is to say, whether the actions of the NPA directed against the applicant had constituted persecution. He also submitted that the Tribunal had made no finding as to whether the applicant was a member of a "social group" for the purpose of the Convention definition of "refugee". While these observations are correct as matters of fact, I do not think that they are grounds for review of the decision. The Tribunal proceeded on assumptions favourable to the applicant in both respects. It was entitled to deal with his application in that way and to determine it adversely to him on the ground on which it did.
CONCLUSION
It follows from the foregoing reasons that the application should be dismissed with costs.
I certify that this and the preceding 16 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.
Associate:
Dated:15 August 1996
Heard: 9 August 1996
Place: Sydney
Decision: 9 August 1996
Appearances: Mr R Frodsham of counsel instructed by Belen Oag appeared for the applicant.
Mr G Johnson of counsel instructed by the Australian Government Solicitor appeared for the respondents.
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