Pepingco, Jose Maria v Minister for Immigration & Multicultural Affairs
[1997] FCA 644
•21 JULY 1997
FEDERAL COURT OF AUSTRALIA
MIGRATION - Judicial Review - whether the Refugee Review Tribunal made an error of law by incorrectly applying the law (s 476(1)(e) of the Migration Act 1958) - whether procedures required to be observed by the Tribunal were not observed (s 476(1)(a)) - whether the Tribunal failed to adequately take account of the applicant’s membership of a social group - whether the Tribunal erred in concluding that it was reasonable to require the applicant to relocate.
Migration Act 1958 - s 476(1) (a), s 476(1)(e)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Randhawa v Minister for Immigration (1994) 52 FCR 437
Moges Eshetu v Minister for Immigration and Multicultural Affairs10 July 1997,
Full Court, unreported
JOSE MARIA PEPINGCO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 931 of 1996
CORAM: Lehane J
PLACE: Sydney
DATE: 21 July 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 931 of 1996 ) GENERAL DIVISION )
BETWEEN: JOSE MARIA PEPINGCO
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE(S): LEHANE J PLACE: SYDNEY DATED: 21 JULY 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application is dismissed with costs.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 931 of 1996 ) GENERAL DIVISION )
BETWEEN: JOSE MARIA PEPINGCO
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE(S): LEHANE J PLACE: SYDNEY DATED: 21 JULY 1997
REASONS FOR JUDGMENT
This is an application, under s 476(1) of the Migration Act 1958, for review of a decision of the Refugee Review Tribunal (the Tribunal). The decision, made on 29 October 1996, was that the Tribunal was not satisfied that the applicant, Mr Pepingco, is a refugee and affirmed a decision of a delegate of the Minister to refuse to grant Mr Pepingco a protection visa.
Facts
What follows is derived from material which was before the Tribunal and the Tribunal’s findings of fact: none of it, for the purposes of these judicial review proceedings, is in controversy. The material before the Tribunal included the departmental file (including Mr Pepingco’s application, other material which he had supplied and a record of an interview with him), the Tribunal’s own file and material from outside sources, particularly Amnesty International.
Mr Pepingco is a national of the Philippines. He was born in 1955 in the town of Himamaylan in Negros Occidental. He lived there until December 1985. He is a graduate in fine arts and is, by occupation, a commercial artist.
In 1984 and 1985 Mr Pepingco taught in a community centre run, apparently, by the Presentation Order of Nuns and a body known as the Christian Community Fund. The Australian missionary, Father Brian Gore, was one of those associated with that organisation; Father Gore wrote to the Department in support of Mr Pepingco’s application for recognition as a refugee (the application which, by virtue of s 36 of the Act, is now to be treated as an application for a protection visa). Mr Pepingco was also involved with a group called Kristianong Katilingban (which apparently means Basic Christian Community). The Tribunal had before it material, including information from Amnesty International, concerning violent campaigns by military and police personnel, in Negros Occidental, against the communist New People’s Army (NPA) and against others whom, rightly or wrongly, they associated with the NPA, including members of the Basic Christian Community. Father Gore’s letter to the Department indicated that in 1994 violent attacks were still being directed against priests and nuns in Negros Occidental and, more particularly, more vulnerable local people working with them.
Mr Pepingco described particular harassment directed against him by the military and the police. He said that he was believed to have been a communist and to have incited the overthrow of the government while teaching at the community centre. He was arrested and jailed on 1 May 1985; he was interrogated by the chief of police and beaten: he was asked to give information concerning the people with whom he was working, including Father Gore. In an interview with the delegate, Mr Pepingco spoke of three other particular occasions of harassment, in May and June 1985, by the police. In his application for recognition as a refugee, Mr Pepingco said “I was harassed and threatened not to continue with my social awareness activity with the people exposing human rights violations” : that, he said, occurred during 1984 and 1985. After the incidents of May and June 1985, Mr Pepingco claims to have stayed at home and was not subject to further harassment. In December 1985, he went to Manila where he lived with his sister until, in April 1986, he left for Australia. He does not assert that he was subjected to any persecution or harassment in Manila.
There is another particular matter. In March 1986, the chief of police and a number of other members of the police force were ambushed and killed in Negros Occidental. Mr Pepingco claimed that, as a result of threats which he had made at the time when he was arrested and beaten, relatives of the police who were killed thought that he was responsible for the ambush and would seek him out for “payback” so that he would not be safe anywhere in the Philippines. In an interview with the delegate he said that relatives had informed him that the police were interested in his whereabouts.
On the question whether, even if he had a well-founded fear of persecution for a Convention reason in Negros Occidental, it was reasonable for him to move to another part of the Philippines (particularly Manila), Mr Pepingco claimed, in material submitted to the delegate and in interview with the delegate, that he had no relatives there, could not obtain work there and would still have to live “like a fugitive” there; he said also that his own language was different from that of other parts of the Philippines (though it may be mentioned that the material which he submitted suggests that he attended university in Manila, and he lived there for several months before coming to Australia).
Finally, it should be mentioned (though, as the Tribunal correctly pointed out, no adverse inference is to be drawn from it) that Mr Pepingco elected not to appear before the Tribunal or give oral evidence to it.
Basis of Claim for Protection Visa; Tribunal’s Reasons
The criterion to be satisfied, at the time of decision on an application for a protection visa, is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention (Migration Regulations, sch 2 para 866.221). The Refugees Convention is the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. A refugee to whom Australia has those obligations is, for present purposes, 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; ....
Mr Pepingco claims that he has a well-founded fear of being persecuted “for reason of” his membership of a particular social group, the Basic Christian Community. The Tribunal accepted a number of matters relevant to Mr Pepingco’s claim. They include the following:
·A person living on Negros who is identified as associated with one of a number of different groups, including the Christian Church, may face grave harm which, depending on the circumstances, could be said to give rise to a well-founded fear of persecution within the meaning of the Convention.
·Mr Pepingco was detained and beaten in May 1985 and thereafter harassed as he claimed; the detention and beating amounted to a serious violation of his human rights and the later incidents were a form of harassment.
·The tradition of “payback” is strong in the Philippines, and relatives of those killed in the 1986 ambush may seek revenge against those responsible.
·“Given the history of Negros generally and, in particular, the targeting of members of the BCC and other groups,... Mr Pepingco is genuinely fearful of returning there”.
The Tribunal, however, was not satisfied that Mr Pepingco had a well-founded fear of persecution within the meaning of the Convention. The Tribunal directed itself, in terms of which no complaint was made, and which seem to me unexceptionable, as to the meaning of a “well-founded fear” as elucidated particularly by Chan Yee Kin v Minister for Immigration and Ethic Affairs (1990) 169 CLR 379. On that footing, the Tribunal concluded that:
· Mr Pepingco’s fear of persecution in Negros was not well-founded: his detention and harassment appeared to have been isolated incidents, there being no evidence of repetition after June 1985: the evidence strongly suggested that he was no longer of interest to the chief of police or other officers after June 1985.
· Nothing in the evidence established any basis for Mr Pepingco’s fear that he was identified as responsible for the ambush. Particularly, there was no evidence that the police or military authorities visited his family looking for him after the ambush. He merely told the delegate that the police were still looking for him in December 1993, but there were no details of that claim.
· “When Mr Pepingco’s claims are considered in the light of evidence of substantial political change in the Philippines since 1986; the fact that it is over ten years since he was in the Philippines; and that there is no evidence of any substance to suggest that the authorities have any continuing interest in him, I am not satisfied that his fear is well-founded”.
· In any event, even if the officers’ relatives considered Mr Pepingco to be responsible for their killing, and wished to take revenge, “payback” in those circumstances would not constitute persecution for a Convention reason (Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314 at 317, 318).
· Even if Mr Pepingco’s fear in relation to Negros was well-founded, the problems in Negros had their roots in social and economic conditions there and were confined to that part of the country. There was no evidence that the trouble extended to Manila or other parts of the country, and Mr Pepingco had in fact lived in Manila without problems for several months before coming to Australia.
· It was not unreasonable to expect Mr Pepingco to relocate in Manila: particularly, on the evidence before the Tribunal, “he is a man in his early forties with a trade and there is no apparent reason why he could not find work”.
It was on those grounds that the Tribunal was not satisfied that Mr Pepingco was a refugee and affirmed the decision to refuse to grant him a protection visa.
Consideration of Grounds of Application for Judicial Review
Mr Pepingco sought to rely on s 476(1)(e), claiming that the decision of the Tribunal involved an error of law, being an error involving an incorrect application of the law to the facts as found by the Tribunal. In the light of the decision of the Full Court in Moges Eshetu v Minister for Immigration and Multicultural Affairs 10 July 1997 unreported, counsel for Mr Pepingco sought leave to amend his application so as to rely additionally on s 476 (1)(a), on the footing that the procedures adopted by the Tribunal were such that it failed to act according to substantial justice and the merits of the case (s 420(2)(b)). The Minister did not oppose the amendment, and an amended application has now been filed in accordance with a direction made at the hearing. The argument before me proceeded on the basis that the amendment had been made.
In substance, the complaint of Mr Pepingco on both grounds was that the Tribunal, first, failed adequately to take account of his membership of a particular social group (the Basic Christian Community) and, secondly, erred in concluding that it was reasonable to require Mr Pepingco to relocate to Manila. Mr Pepingco gave the following particulars of the errors of law which he asserted:
1.(i) The applicant’s claim was that by his membership of the Basic Christian Communities, he was a member of a particular social group within the Convention.
The Tribunal accepted “targeting of members of the Basic Christian Communities and other groups. (page 37 Appeal Book, page 11.3 of Judgment).
The Tribunal did not deal with the factor of the applicant’s claimed social group membership in its reasons for judgment. (page 38 Appeal Book, page 12.5 Judgment), “any harm which Pepingco suffers as a result of “payback” by officers’ relatives would not, in my view [be] on[e] of the reasons in the Convention”.
(ii)Facts in the judgment where the applicant’s claim that he could not move to another part of the Philippines because “the Philippines is very regionalised and comprises different ethnic groups and his language is different from that of Tagalog or that in Mindanao” (page 34 of Appeal Book, page 8.2 Judgment).
The Tribunal found “the only reasons presented by Mr Pepingco as to why he could not move [to] Manila, for example, are that he has no family or relatives there and the would not find work”. (page 39 Appeal Book, page 13.1 Judgment).
The Tribunal did not give proper or indeed any weight to the language difficulties.
The amended application states the added ground, and its particulars, as follows:
2.The procedures required to be observed by the Tribunal in connection with the making of its decision were not observed, namely:
The Tribunal did not act in accord with substantial justice and the merits of the case.
Particulars
a)In reaching a conclusion that the applicant’s fear of persecution was not well founded the Tribunal ommitted[sic] to deal with the applicant’s claim of persecution for reason of his being a member or a previous member of a social group.
b)In not being satisfied that it would not be reasonable to expect the applicant to relocate elsewhere in the Philippines the Tribunal
i)omitted to deal with the language difficulty component of the applicant’s case; or in the alternative
ii)did not place proper weight on facts previously referred to in the judgment, 8(34).2, namely the language difficulty claimed as a barrier to employment.
A further ground stated in the original application (and retained in the amended application) - that the Tribunal ought to have concluded on the facts found by it that the applicant had a well-founded fear of persecution were he to be returned to the Philippines - was not pursued at the hearing.
The substance of Mr Pepingco’s complaint, in relation to his membership of the Basic Christian Community, was that the Tribunal concentrated on Mr Pepingco’s particular circumstances, substantially to the exclusion of considerations arising from his membership of the relevant social group. The argument was that membership of the group, on the evidence accepted by the Tribunal, exposed a person to persecution, and the targeting of members of the group continued. This, however, was a matter to which the Tribunal did not address itself in forming its conclusion.
In my view that argument should not be accepted. The Tribunal plainly recognised that members of Christian groups, including the Basic Christian Community, were subjected to harassment and persecution. But in the case of a person who claims to be a refugee, within the meaning of the Convention, the question is whether that person has a well-founded fear of persecution for one of the Convention reasons. Membership of a social group is a Convention reason; the extent to which members of a social group, to which an applicant belongs, are generally subjected to persecution is relevant to the inquiry whether the applicant is a refugee, but in the end the question to be answered is one which relates to the particular applicant. Accordingly, the Tribunal here - correctly, in my view - having considered more general evidence relating to the Basic Christian Community and other groups, focussed its attention on the particular circumstances of the applicant. It concluded, on the evidence, that there was not a real chance that the applicant, as an individual, would be subject to persecution. Once that is seen, it is evident that the Tribunal’s decision was a decision on the merits, not demonstrated in this respect to involve any error of law. Likewise, the decision, in this respect, did not involve a failure to observe a procedure which the Act requires to be observed.
It must be emphasised that the function of the Court, in judicial review proceedings under the Act, is a limited one. It is concerned only with the legality of an administrative decision, measured by reference to the particular grounds set out in s 476 of the Act, its function and not to reconsider the merits of the decision. That principle has been laid down many times, recently by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272:
...Any court reviewing a decision upon refugee status must be aware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin [(1970) 170 CLR 1 at 35-36]:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and govern of the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they are distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The second basis on which Mr Pepingco seeks to impugn the Tribunal’s decision fares, in my opinion, no better. Again, it comes at least perilously close to a complaint about the Tribunal’s decision on the merits. The complaint is, in substance, that the Tribunal did not take into account the “language difficulties”. As Mr Pepingco’s particulars record, the Tribunal referred to Mr Pepingco’s statement that his language “is different from that of Tagalog or that in Mindanao”. Certainly it is true that the Tribunal says, at 13:
The only reasons presented by Mr Pepingco as to why he could not move to Manila, for example, are that he has no family or relatives there and that he would not find work.
But I think there are at least two reasons why the fact that there is there no mention of language difficulties is not a ground on which the decision can be judicially reviewed. One is what has been said many times, perhaps most recently and authoritatively in Wu, to the effect that the reasons for an administrative decision ought not be subjected to microscopic examination. Secondly, I can see no reason why the Tribunal should in any event have taken what was said about different language groups as evidence that Mr Pepingco would have “language difficulties” in Manila: there was no express statement to that effect before the Tribunal, Mr Pepingco spent several months in Manila before his departure for Australia and, as I have mentioned, his evidence was that he obtained his degree from a Manila university. The particulars of the ground based on s 476(1)(a) suggest that “language difficulties” were put forward as a barrier to employment. It is evident that the Tribunal did not so understand the evidence and, in dealing with the evidence as it did, the Tribunal in my view made no error: certainly, no reviewable error.
The Tribunal referred to the proposition, for which Randhawa v Minister for Immigration (1994) 52 FCR 437 is authority, that where there is real protection available in some part of an applicant’s country of nationality, and it is reasonable, in all the circumstances, to require the applicant to relocate there, the applicant must rely on national protection and will not be regarded (for Convention purposes) as a refugee. Particularly, the Tribunal seems to me in this case to have followed the process of reasoning required by the decision of the Full Court in Randhawa: see particularly at 442, 443 per Black CJ, with whom Whitlam J (at 453) agreed.
Thus, in my view, the applicant has not demonstrated that, in dealing with the question of “internal relocation”, the Tribunal committed an error of law or failed to comply with s 420 and thus to observe a procedure required by the Act to be observed.
The Eshetu Point
When leave was granted to Mr Pepingco to amend his application so as to raise the ground provided for in s 476(1)(a) of the Act, Counsel for the Minister informed me that she had not been able to obtain instructions as to submissions to be made, in the light of Eshetu, as to the law to be applied in relation to the ground added by the amendment. Eshetu had been decided only a few days previously. I indicated that if I were disposed to accept the submissions made by Counsel for Mr Pepingco in relation to the added ground, I would, before coming to any final conclusion or making any orders, give the parties an opportunity to make submissions as to the effect which I ought to give to the decision in Eshetu. It will be evident, from my reasons, that my view is that on a view of Eshetu which favours Mr Pepingco, his application nevertheless fails. It is, accordingly, unnecessary to consider in this case the precise effect or scope of that decision.
Conclusion
For the reasons I have given, the order of the Court is that the application is dismissed with costs.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane
Associate:
Dated: 21 July 1997
Counsel for the Applicant: Mr J Parnell Solicitor for the Applicant: Belen Oag Solicitors Counsel for the Respondent: Ms E Williams Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14 July 1997
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