Javier, Daniel Esteban Jiminez v Minister for Immigration & Multicultural Affairs

[1997] FCA 414

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 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:  22 May 1997)

No SG 58 of 1996

DANIEL ESTEBAN JIMINEZ JAVIER 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 58 of 1996
  )
GENERAL DIVISION                 )

B E T W E E N:

DANIEL ESTEBAN
  JIMINEZ JAVIER
  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 58 of 1996
  )
GENERAL DIVISION                 )

B E T W E E N:

DANIEL ESTEBAN
  JIMINEZ JAVIER
  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, Daniel Esteban Jiminez Javier arrived in Australia with his step-brother, Jorge Guerrero Beras, on 6 April 1995. On 27 June 1995, each applied for a protection visa pursuant to the provisions of section 36 of the Migration Act 1958 (Cth) ("the Act").  Their applications being unsuccessful, each sought review of the Minister's decision 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 33 and he is a national of the Dominican Republic.  His parents 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 was a sympathiser of the Patriotic Union Party ("the PUP"), a small left wing opposition party.  However, he had never had any direct involvement with the party and had never come to the attention of the authorities in connection with his political views.  He claimed, nevertheless, that he felt the need to hide from the police because of his belief that they would be aware of his political sympathies by virtue of his attendances at meetings of the party.  The applicant maintained that he had been harassed by the police and that the police had persecuted friends who had displayed similar political views.  He further claimed that he and others had been accused by the police of promoting anti-government protests.

On two occasions in December 1994 and February 1995, the police broke into the house in which he and his step-brother were living because, as the Tribunal said in its reasons, "a neighbour was suspected of selling drugs".  According to the applicant, on the first of these occasions he, and a cousin who was also residing in the house, were handcuffed and questioned.  However, they were released after about 45 minutes.  After the second raid, the applicant left that house and went to live with his aunt.  Although he was never approached by the police, he claimed that he had been informed by a neighbour that the police were checking up on him.

Subsequent to his arrival in Australia, the applicant has heard that his cousin has been visited by the police who asked about his whereabouts.  He claims that he fears that he would be in trouble with the police if he returned to the Dominican Republic.

The Tribunal concluded that the applicant's association with the PUP or the "Union Patriotica Associale" (which is, presumably, its correct title) was very limited and that a contention that his political involvement was "well known" was not supported by the applicant's evidence.  The Tribunal also concluded that the two police raids were drug related and were not politically motivated.  The Tribunal said:-

"Having regard to this - in my view - understandable lack of interest in the applicant's political activities before he left the Dominican Republic, I see no conceivable reason why the police would develop an interest in him after his departure - which was legal and without hindrance.  This and the discrepancy in the evidence about the claimed number of visits leads me to disbelieve this claim and to conclude that there have been no inquiries after the applicant by the police since his departure."

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, 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 by the same solicitors and counsel 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".  Eighteen 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:-

"1.9The Tribunal erred in finding that the Applicant's political activities were minimal (see p.11 of the decision).  There was no evidence to justify the making of this decision.

1.10The Tribunal erred in finding that the visits to the Applicant's home in December 1994 and February 1995 were in connection with drug-related enquiries and had nothing at all to do with the Applicant's political activities (see p.11 of the decision).  There was no evidence to justify the making of this decision.

1.11The Tribunal erred in finding that the Applicant's decision to go and live with his aunt did not have anything to do with his very minimal political activities or that he was under surveillance (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 judicial 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       :    Ms S J Maharaj
Solicitor for the Respondent     :    Australian Government
  Solicitor

Date of Hearing                  :    19 February 1997