Lasam, M. v Minister for Immigration & Ethnic Affairs

[1995] FCA 94

IN THE FEDERAL COURT OF AUSTRALIA )

)No. NG 383 of 1994

NEW SOUTH WALES DISTRICT REGISTRY )
  )
GENERAL DIVISION                 )

BETWEEN:MAXIMINO LASAM

Applicant

AND:MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

First Respondent

and

JILL TOOHEY, sitting as the REFUGEE REVIEW TRIBUNAL

Second Respondent

CORAM:WILCOX J

PLACE:    SYDNEY
DATE:     15 FEBRUARY 1995

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:  This is an application under the Administrative Decisions (Judicial Review) Act 1977 in respect of a decision by the Refugee Review Tribunal affirming the decision of the primary decision-maker that the applicant, Maximino Lasam, is not a refugee under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol on Status of Refugees done in New York on 31 January 1967.

Two grounds have been argued; but it seems to me, with respect to the solicitor for the applicant, that both are hopeless.  Firstly, it is said that the Refugee Review
Tribunal, which was constituted by Tribunal member Jill Toohey, misunderstood the definition of "refugee" under the Convention as amended by the Protocol, and consequently fell into error of law.

If Ms Toohey had misunderstood the definition there is no doubt that this would amount to an error of law requiring the Court to set aside her decision and remit it for further determination.  However, I cannot see any basis for suggesting that Ms Toohey misunderstood the relevant definition.

In her reasons for decision she commences at page 2 by referring to the definition of the word "refugee" in the Migration Act 1958, noting that it has the same meaning as in Article 1 of the Refugees Convention as amended by the Protocol. She then quotes Article 1 of the Convention. It is not suggested that she has done so inaccurately. She then makes some comments about aspects of the definition. She refers to the necessity for an applicant to have a "well founded fear" of being persecuted and discusses what this means. The discussion is based directly upon what was said by members of the High Court in Chan Yee Kin v Minister for Immigration Ethnic Affairs (1990) 169 CLR 379. In particular she quotes, from the judgment of Mason CJ, the statement that the term "a real chance" clearly conveys the notion of a substantial as distinct from a remote chance of persecution occurring. She also refers to what was said by Toohey J at 407. Ms Toohey then proceeds to deal with the meaning of the word "persecution" and the requirement of the definition as to the reason for persecution. It seems to me that her summary of the elements in the definition set out at pages 2 to 4 of the decision is exemplary. I see no error of law whatever.

It emerged when the submission was put that the applicant's real complaint was in the way Ms Toohey had applied the definition to the facts.  In particular it was said that she erred in failing to hold that there was a real chance of the applicant being persecuted if he returned to the Philippines.  The assessment that Ms Toohey made about this matter was entirely an assessment of fact.  I do not wish to suggest that she was in error in making that assessment but, if she was, this was an error of fact and not an error of law.  It is not a matter which is amenable to review in this Court.  The complaint of error of law in the application of the Convention definition must be rejected. 

The second point put by the solicitor for the applicant is that Ms Toohey failed to take into account certain relevant considerations.  These were identified as documents concerning killings by the New Peoples Army, ("NPA"), and also the fact that a number of people, including some relatives of the applicant, had been killed, according to him, by the NPA.

Mr Icao, the solicitor for the applicant referred me to the material in relation to these matters which was placed before Ms Toohey.  However, it seems to me that it is impossible to make good the claim that Ms Toohey failed to take these matters into account.  At 6 to 7 of her reasons for decision, Ms Toohey says this:

"In support of his claims, Mr Lasam provided the department with a number of newspaper articles documenting killings by the NPA.  He also referred the tribunal to a number of people, some relatives and friends, who had been killed allegedly by the NPA.  Questioning by the tribunal revealed that all but two killings occurred many years ago and most of the victims had some significant political profile or involvement with the security forces.  It also became apparent that no one had been arrested in relation to any of the deaths.  The tribunal put it to Mr Lasam that given their high profile and that most were killed in the years of intense political hostilities leading up to the overthrow of the Marcos government the people he mentioned may well have been killed by someone other than the NPA.  Mr Lasam maintains the killings were the work of the NPA and that his own high profile put him similarly at risk as well his wife who, since 1990, has lived with her children in Malaysia, has been told by relatives and friends that the NPA has been asking her husband's whereabouts."

Ms Toohey then goes on to evaluate the matters referred to in this paragraph.  She refers to the material before her as to the dates of the killings and the identity and profile of persons who were killed.  She also deals with the claim by Mr Lasam as to information given to him by his wife.

I understand that Mr Lasam is unhappy about Ms Toohey's treatment of these factual matters; but once again these were entirely conclusions of fact.  Even if Ms Toohey's
conclusions were incorrect, and once again I do not say they were, I make no comment one way or the other, these were matters for her determination and not for the Court.

The significant point is that it is quite impossible to say that she failed to take into account the identified material when her reasons for decision reveal, not only that it was placed before her, but that it furnished material which caused her to ask questions of Mr Lasam and which she then dealt with extensively in her reasons for decision.

As I say, it seems to me that the application for review, limited as it is by the grounds set out in the Administrative Decisions (Judicial Review) Act is hopeless.  The application must be dismissed.

The application will be dismissed for costs.

I certify that this and the preceding four (4) pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Wilcox.

Associate:
Dated:    15 February 1995

APPEARANCES

Counsel for the Applicant:       J Icao       

Solicitors for the Applicant:        Belen Oag    

Counsel for the Respondent:      N J Williams

Solicitors for the Respondent:    Australian Government Solicitor

Date of hearing:                 15 February 1995