Ocsing, Nicolas Castillo v Minister for Immigration & Multicultural Affairs

[1998] FCA 1106

FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from Refugee Review Tribunal (“RRT”) decision refusing refugee status - whether RRT failed to observe procedures required by the Migration Act - whether RRT decision involved findings of fact that were not rationally supported by the probative evidence - whether RRT failed to rationally consider the probative evidence before it - matters relied upon by RRT to come to factual conclusions that it did were properly available to it

Migration Act 1958 (Cth), ss 420, 476(1)(a), 476(1)(e), 476(2)

NICOLAS CASTILLO OCSING v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 95 of 1998

O’CONNOR  J
SYDNEY
8 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 95  of   1998

BETWEEN:	NICOLAS CASTILLO OCSING APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		O'CONNOR J
DATE OF ORDER:		8 SEPTEMBER 1998
WHERE MADE:		SYDNEY

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 95 of 1998

BETWEEN:	NICOLAS CASTILLO OCSING APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'CONNOR J
DATE:	8 SEPTEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for the review of a decision of a member of the Refugee Review Tribunal (“the Tribunal”) dated 20 January 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

By Notice of Motion filed on 31 July 1998 the applicant moved to file and serve an amended application which was returnable on 6 August 1998.  At the hearing of this matter on 6 August 1998, the applicant without objection filed a further amended application.  The grounds of this further amended application are:

1. That the procedures that were required by the Act to be observed in connection with the making of the decision were not observed, in that the Tribunal failed to act according to the substantial justice and merits of the case as required by s 420 of the Migration Act 1958 (Cth) (“the Act”).

1. That the decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by the probative evidence, and it failed to rationally consider the probative evidence that was before it.

In respect of each of these grounds the applicant listed a series of particulars and these matters will be referred to later in these reasons.

Legislative Context
The relevant provisions of the Act in respect of this application are as follows:

“Refugee Review Tribunal’s way of operating

420.  (1)  The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)  The Tribunal, in reviewing a decision:

(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.

…

Application for review

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)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(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;

...

(2)  The following are not grounds upon which an application may be made under subsection (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.”

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The applicant seeks an order that the decision under review be set aside and remitted back to the Refugee Review Tribunal for determination according to law.

Factual Background
The applicant is a citizen of the Philippines.  He claims he left his country of origin because he was being pursued by an international drug syndicate known as “14K” because he was a member of the Philippines National Police assigned to work as an undercover agent and in 1996 the syndicate found out about his involvement.  Soon after, in mid 1996, he claimed he was ambushed when driving his car.  He says the “14K” had infiltrated the army and the police and that he had to hide until he was able to leave the country.  He said he feared for his life if he was to return.

The applicant graduated in 1992 and worked in a professional capacity for a construction company from mid 1986 to early 1997.

The applicant arrived in Australia in 1997 and applied to the Department of Immigration and Multicultural Affairs for a protection visa on 18 March 1997.  The delegate’s decision refusing the application was made on 8 May 1997.  The applicant applied for a review of that decision by the Tribunal on 12 June 1997.  The Tribunal rejected the application for review and his application for protection visa refused on 20 January 1998.

Tribunal’s Decision
On 15 December 1997 the Refugee Review Tribunal wrote to the applicant advising him that it had considered all the papers relating to his application but was unable to make a favourable decision on that information alone.  The applicant was invited by letter to give oral evidence before the Tribunal.  The applicant was also advised that, if he did not contact the Tribunal within a period specified in the letter, the hearing would not take place and a decision may be made on the evidence available to the Tribunal.  No response was received by the applicant and the matter was subsequently determined on the evidence before the Tribunal.

The Tribunal made the following findings:

The applicant’s claims lacked credibility in that the information provided in his primary application regarding his employment conflicts with his claim that he was a police officer.  Furthermore, his passport and Departmental records show that he received a visitor visa to Australia in 1996, yet despite the claim that he feared for his life he did not leave the Philippines until some months later in 1997.

The Tribunal found that his claims amounted to no more than a series of unsupported assertions. 

The Tribunal was unable, on the evidence before it, to assess the nature and extent of any harm the applicant suffered in the past or might suffer in the future. 

The Tribunal noted that the applicant had been notified that it was unable to make a favourable decision on the information before it yet the applicant did not provide any further information in support of his claims despite ample opportunity to do so.

The Tribunal concluded:

“I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention.”

Submissions of the Parties

Procedures required to be observed were not observed – s 476(1)(a) and s 420(2)(b)
In relation to the first ground of the further amended application that the procedures that were required by the Act to be observed in connection with the making of the decision were not observed because the Tribunal failed to act according to substantial justice and the merits of the case as required by s 420 of the Act, the applicant made a number of submissions:

• The Tribunal failed to properly disclose to the applicant the issues which were relevant to its decision, nor did it provide the applicant with a sufficient opportunity to reply to such issues; and

• The Tribunal failed to provide the applicant with a sufficient opportunity to attend and present his case orally, in order that the Tribunal could properly make an assessment as to the applicant’s credibility.

The respondent, in reply, submitted that the Tribunal’s determination of the applicant’s claim complied with all procedures specifically required of it by the Act and it exercised its discretions as to the conduct of the application in a manner that gave the applicant “procedural fairness”. The respondent put that the Tribunal must balance the parts of s 420 dealing with giving applicants substantial justice according to the merits of each case, with the other requirements of the section – namely that the Tribunal’s review be “economical, informal and quick” and that the Tribunal not be bound by “technicalities, legal forms or rules of evidence”.

The respondent further submitted that the applicant was on notice that the credibility of his claim was in issue when advised by the Tribunal that it was unable to make a favourable decision “on the papers” in its letter of 15 December 1997.  Furthermore, even after receiving no response from the applicant to attend a hearing, it did not proceed to make its decision until 20 January 1998, almost a week after the date on which the applicant had been advised that the hearing was arranged, and almost three weeks after the specified period in which the Tribunal asked the applicant to advise whether he wanted to come to a hearing.  In the circumstances the respondent submits the Tribunal gave the applicant a reasonable opportunity to make arrangements to attend the hearing or to ask the Tribunal to give him more time.

In response to the applicant’s evidence that the applicant’s migration agent had failed to contact the Tribunal and take further action on his behalf the respondent submitted that the applicant has not sought to lead evidence from the agent, or provide a copy of any document on his behalf it is claimed the Tribunal did not receive.  It was not contested that the Tribunal was not advised, at any stage, that the applicant was represented by an agent or provided with the agent’s details.  In these circumstances, the respondent submits that it was the applicant’s responsibilities to ensure that the Tribunal was so advised.  He was personally aware of the hearing date and took no steps himself to ensure that he attended or sought an adjournment of it.

Error of Law – s 476(1)(e)
In relation to the second ground of the further amended application that the decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by the probative evidence, and it failed to rationally consider the probative evidence that was before it, the applicant made the following submissions:

• The Tribunal’s finding that “The applicant’s claim lacks credibility in that the information provided in his primary application regarding his employment conflicts with his claim that he was police officer” failed to properly consider and apply the evidence that in the applicant’s primary application he gave his occupation or profession as a structural draftsman but went on to claim, under the question “Why did you leave your country”, that as a member of the Philippines National Police he was assigned to work as “an undercover agent”.

• The Tribunal’s finding that the applicant’s claims lacked credibility because his passport and Departmental records showed that he received a visitor visa to Australia in November 1996, yet despite the claim that he feared for his life he did not leave the Philippines until February 1997 failed to properly consider and apply the evidence that in the applicant’s primary application, under the question “Why did you leave your country”, the applicant said “I hid for some time until I could arrange to go overseas”.

The respondent, in reply, made the following submissions:

• So far as the applicant is seeking to challenge the Tribunal’s factual findings, he must establish one of the grounds of review in s 476 of the Act in relation to them. Part 8 of the Act does not permit the Court to undertake a review of the Tribunal’s decision in its merits and these submissions are an attempt to invite merits review.

• No error of law is apparent in the way in which the Tribunal arrived at its factual findings, interpreted the Convention, or applied it factual findings to it.  The applicant seeks only to challenge the factual conclusions reached, without pointing to any defect in the fact finding process which could sustain an error of law.  Even if it were established that the RRT failed to “properly consider and apply the evidence”, this does not amount to an error involving an incorrect application of the law to its factual findings as contemplated by s 476(1)(e) of the Act.

• The correctness of the Tribunal’s approach to the issue of the applicant’s credit when making its ultimate finding that “His claims amount to no more than a series of unsupported assertions” was demonstrated by its consideration of the relevant authorities concerning its duties when assessing such an issue.

• The Tribunal’s rejection of the applicant’s claim that he worked as an undercover agent was a finding of fact.  There was no indication that the applicant asserted he worked as an undercover agent at the construction company and it would not follow as a matter of logic that the Tribunal would so infer.

• The Tribunal was entitled to have regard to any delay in the applicant’s departure from the Philippines and the seeking of refugee status in making a finding on the applicant’s claim of fear for his life.  The evidence the applicant is quoted as giving in his primary application refers to him having hidden since the incident until he could arrange to go overseas.  Implicit in the Tribunal’s finding is that he had already made such arrangements by November 1996, and still delayed, demonstrating a genuine lack of fear.

Decision
In my view, neither of the grounds finally relied on by the applicant at the hearing have been made out.  The Tribunal followed the requisite procedures and had no further obligation based on principles of fairness or statutory provisions to contact the applicant after the 15 December 1997 communication.

As submitted by the respondent the matters relied upon by the decision maker to come to the factual conclusions that it did were properly available and the determination that the applicant had no “well-founded fear of persecution” if he did return to the Philippines was a conclusion that could be made on the facts as found.

The application is dismissed with costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated:             8 September 1998

Counsel for the Applicant:	N Poynder
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 August 1998
Date of Judgment:	8 September 1998