Rara, Lydia v Minister for Immigration and Ethnic Affairs

[1997] FCA 964

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - application for protection visa refused - whether Tribunal acted according to substantial justice in refusing to adjourn the hearing - whether Tribunal acted according to substantial justice when it received interpretations of the applicant’s evidence in narrative form - whether Tribunal correctly relied upon the “relocation” principle.

Migration Act 1958 (Cth): ss 420, 476

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Eshetu v Minister for Immigration and Multicultural Affairs, 10 July 1997, unreported, Davies, Burchett and Whitlam JJ
Khan v Minister for Immigration and Multicultural Affairs, 4 August 1997, unreported, Lockhart J

LYDIA RARA v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and JILL TOOHEY, SITTING AS THE REFUGEE REVIEW TRIBUNAL

NG 892 of 1995

LOCKHART J
9 SEPTEMBER 1997
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 892  of   1995

BETWEEN:

LYDIA RARA
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
FIRST RESPONDENT

JILL TOOHEY, SITTING AS THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

LOCKHART J

DATE OF ORDER:

9 SEPTEMBER 1997

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application is 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 892 of 1995

BETWEEN:

LYDIA RARA
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
FIRST RESPONDENT

JILL TOOHEY, SITTING AS THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	LOCKHART J
DATE:	9 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The applicant, Lydia Rara, seeks to review the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 October 1995 not to grant the applicant refugee status and not to grant her a protection visa. The application for review is made pursuant to s 475(1)(b) of the Migration Act 1958 (“the Act”).

Before turning to the grounds of review I shall state the material facts as found by the Tribunal.

The applicant is a national of the Philippines who was born in Lambunao in Iloilo province in the Philippines.  The applicant’s grandfather owned 75 hectares of land in the village.  He was well respected and known for his support of the government.  The family in general shared his political beliefs, the applicant’s half brother was elected barrio or local area captain and her cousin was a local policeman.  On her grandfather’s death his property was divided amongst his ten children including the applicant’s mother.

From about 1973 members of the New People’s Army (“NPA”) (who were tenants on the family’s property) starting demanding money, livestock and produce.  They threatened to kill family members unless they co-operated.  The applicant did not herself receive demands and threats; but other members of her family did.  In time most of them left the area because of the continuing threats.  A few family members still live on the property.

In 1975 the applicant moved to Manila, principally to avoid the NPA.  She has not returned to Iloilo since then.  She married in 1977.  From 1979 to 1985 her husband lived and worked in Saudi Arabia.  In 1987 they came to Australia.  Mrs Rara’s husband applied for refugee status in January 1991.  The applicant was included in his application as a member of his family unit.  His application was rejected by a delegate of the respondent, the Minister for Immigration and Ethnic Affairs, in 1991; and the delegate’s decision was affirmed by the Tribunal in May 1995.

In 1983 a cousin of the applicant was stabbed in the back with an ice pick in Manila and died as a result.  In 1987 the applicant’s cousin, a policeman in Lambunao, was shot and killed at his home.  In July 1993 the applicant’s brother, a barrio captain, was killed.  The applicant’s cousin who was accompanying her brother was also killed.  They were both hacked to death.  In January 1995 the applicant’s nephew visited Lambunao from Manila to obtain for her documentary proof of the killings to support her application for refugee status.  He was ambushed by NPA members, badly injured and was taken to hospital.

The Tribunal noted that it was put to the applicant by the Tribunal that the violent incidents against members of her family by the NPA were all confined to Lambunao.  She agreed that it is the family property which led to the dispute and to the killings and violence.  She conceded that, apart from the time when she was told to be “careful” because she lived near a local police station, the NPA did not approach her or threaten or harm her while she was in Manila.  Nevertheless, she said that she feared the NPA would kill her if she returned to the Philippines.

The Tribunal accepted the applicant’s claims and said that they had been consistent throughout and were supported in general terms by independent evidence.  The Tribunal posed the question before it for decision as whether on the evidence before it the applicant’s fear of persecution was well founded within the meaning of the Refugees Convention (meaning the 1951 Convention Relating to the Status of Refugees) as amended by the 1967 Protocol Relating to the Status of Refugees.

The Tribunal’s critical findings on this point were as follows:-

• with the exception of the death of the applicant’s cousin in Manila in 1983, the deaths of her family members and the attack on her nephew all took place in or near Lambunao;

• once the applicant moved to Manila she had no trouble from the NPA;

• there was no evidence of any actual or intended harm to her in the twelve years since she lived in Manila.

The Tribunal was not satisfied that there was a “real chance” that the applicant faced persecution in Manila.  It found that no conclusions could be drawn as to who was responsible for the 1983 killing of the applicant’s cousin.  She did not know who was responsible and could only speculate it was the NPA.  Given that there was no other evidence of violence against family members outside Lambunao, and, given that in the four years after her cousin’s death and before she left for Australia there was no evidence of NPA’s intention to harm her, the Tribunal found that it was not satisfied that there was any connection between the death of the applicant’s cousin and the NPA’s dispute with her family.  The Tribunal found that, if the applicant returned to live in Manila, as she did previously, the chance of persecution by the NPA was remote.  The Tribunal found also that there was no evidence to suggest, and the applicant had not suggested it herself, that she faced any practical difficulties in moving to or remaining in Manila.  She had been able to secure protection in Manila and could do so again.

The Tribunal notd that the term “well-founded fear” was not precise and that what constitutes a well-founded fear of persecution must be determined by reference to the circumstances of each case.  But it must not be a fear which is all in the mind: the words “well-founded” mean that an objective examination of the facts is needed to see whether the fear is justified; and the Tribunal referred to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379 per Dawson J at 396 and per McHugh J at 429. The expression “a real chance” conveys the notion of a substantial as distinct from a remote chance of persecution occurring and, though it does not weigh the prospects of persecution, it discounts what is remote or substantial: a reference to the statements by Mason CJ in Chan at 389 and Toohey J at 407.

The Tribunal noted that the applicant must fear “persecution”, a term not defined by the Convention; but what will constitute persecution depends on the circumstances of each case.  Not every form of harm will constitute persecution for Convention purposes.  There must be “some serious punishment or penalty or some significant detriment or disadvantage” if the applicant returns to his or her country: a reference by the Tribunal to the judgment of Mason CJ in Chan at 388.  It need not necessarily be harm as serious as loss of life or liberties; in certain cases measures “in disregard of human dignity” will amount to persecution; a single act of oppression may constitute persecution as long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class: a reference to the judgment of McHugh J in Chan at 430.

The Tribunal found that the persecution feared must be for one of the reasons set out in the Convention, namely, race, religion, nationality, membership of a particular social group or political opinion.  It also found that the date when the determination is required is the time at which one must look to determine whether an applicant has a fear of persecution and whether that fear is well founded: a reference to Chan per Mason CJ at 386-387, Dawson J at 399 and Toohey J at 405-406.

The Tribunal also found that a person cannot be said to be at risk if that person has access to effective protection in some part of his or her state of origin, a principle which it noted was affirmed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

The applicant mounted a number of attacks upon the decision of the Tribunal. The first ground of challenge was that in conducting its review the Tribunal was said not to have complied with s 420(2)(b) of the Act in that it did not act according to “substantial justice” or the “merits of the case”. The applicant thus relied upon the ground of review specified in s 476(1)(a) of the Act, namely, that procedures that were required by the Act to be observed in connection with the making of the decision were not observed.

Section 420(2) of the Act provides that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case. The relationship between s 420 and s 476(1) of the Act has been considered in a number of cases by judges of this Court at first instance where differing opinions were expressed; but a Full Court of this Court considered the question in Eshetu v Minister for Immigration and Multicultural Affairs, 10 July 1997, unreported, Davies, Burchett and Whitlam JJ. Davies J found that s 420 prescribed procedures with which the Tribunal is bound to comply and that a breach of them is a ground of review under s 476(1) of the Act. Burchett J came to the same conclusion for substantially the same reason. Whitlam J dissented. See my analysis of Eshetu in Khan v Minister for Immigration and Multicultural Affairs, 4 August 1997, unreported, at pp 6 and 7.

The applicant alleges that the Tribunal did not act according to substantial justice by refusing the applicant’s request to adjourn the hearing to allow her to adduce “newly discovered fresh evidence of persecution of the applicant’s cousin in Manila”.

The manner in which the applicant’s application for review before the Tribunal occurred must be referred to.  On 20 March 1995 the applicant applied to the Tribunal for review of the delegate’s decision.  It was not until 20 October 1995, five days prior to the hearing on 25 October 1995, that the applicant sought an adjournment.  The applicant had not referred to the murder of her cousin in 1983 in her application for refugee status, her interview with the Minister’s delegate, the application for review to the Tribunal, the submission of 18 October 1995 from her solicitors to the Tribunal or her own statutory declaration to the Tribunal.

The Tribunal member who conducted the review asked the applicant specific questions about the murder of her cousin.  The applicant said that she did not know who killed her cousin but that “... it might be the NPA”.  The Tribunal found that no conclusions could be drawn as to who was responsible for the killing in 1983 of the applicant’s cousin and that the applicant did not know who was responsible and could only speculate that it was the NPA.  The Tribunal was not satisfied that there was any connection between the death of the applicant’s cousin and the NPA’s dispute with the applicant’s family.

The applicant alleges that the fresh evidence which she wished to adduce, had the adjournment been granted, was the death certificate of Elmore Luceno Lastimoso which states that Mr Lastinoso died on 24 December 1983 at the Philippine General Hospital in Manila of “multiple stabbed wounds” [sic].  The death certificate does not implicate the NPA in Mr Lastinoso’s murder.  The Tribunal obviously took the view that it added nothing to the applicant’s evidence.

There is no substance in this ground of challenge by the applicant.

The applicant also asserted that the Tribunal did not act in accordance with substantial justice and the merits of the case in that it received interpretations of the applicant’s evidence in narrative form and uninterpreted dialogue from the applicant.

The Tribunal informed the interpreter that the interpreter was not to give evidence in this form and the interpreter then gave his interpretation of the applicant’s evidence in direct speech and not in narrative form.  It is plain from an examination of the transcript of the proceedings before the Tribunal that the Tribunal was clearly satisfied that the problem was solved.  Having perused the transcript I am satisfied that initial translation of the applicant’s evidence in narrative form rather than direct speech did not affect the substance of what was said; nor were the relevant passages relating to the central issue upon which the Tribunal decided the case, namely, the applicant’s ability to live safely in Manila, affected.

Plainly the Tribunal was satisfied that the applicant and the Tribunal did understand each other in relation to the giving of the applicant’s evidence; and I see no ground for disturbing that decision.

Also, the applicant’s solicitor, a Mr Icao who speaks fluent Filipino, had made an initial complaint to the Tribunal about the interpreter giving his interpretation of the applicant’s evidence in direct speech and not in narrative form; but he made no further complaint after the Tribunal spoke to the interpreter and corrected him.

There was another ground of complaint of the applicant about the decision of the Tribunal, namely, that the Tribunal failed to make a positive decision on cumulative grounds and that this amounted to a failure to give reasons in breach of s 430(1)(b) of the Act, ie, failure of the Tribunal when making its decision on a review to prepare a written statement that sets out the reasons for its decision. This ground was withdrawn by counsel for the applicant during the course of the hearing.

The applicant submitted that the Tribunal incorrectly interpreted the law by saying that a “real chance” of a well-founded fear of persecution on a Convention ground involves a probability and not a possibility.

The applicant relied to some degree in support of this submission on dialogue between the Tribunal and the applicant during the hearing.  I accept the argument of counsel for the respondent that it is the reasons for the decision to which regard must be had in finding whether or not an error of law of this kind was committed by the Tribunal.  If there were some ambiguity or if there is some other good reason to do so, regard may be had to the transcript to determine what was said by the Tribunal, but not in this case where the reasons for decision are clear.  In any event a perusal of the transcript does not establish this ground of attack.  In particular in one passage the Tribunal said:

“... may be there is only a very small chance, but it can still be a real chance that something may happen.”

The Tribunal correctly set out the decision in Chan for determining whether a fear of persecution is well-founded and proceeded to apply that test.  This ground of criticism fails.

The applicant attacked the Tribunal’s finding that her fear of persecution was not “well-founded” and that there was no real chance that she would be persecuted if she returned to the Philippines.  The Tribunal correctly relied upon the “relocation” principle or “internal protection” principle to which the Full Court of this Court referred in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

The evidence plainly enabled the Tribunal to find that there was no serious possibility of the applicant being persecuted in Manila, given that all the acts of violence to family members with the exception of the death of her cousin in Manila in 1983, had occurred in or near her home area of Lambunao and that in the twelve years from 1975 to 1987 which the applicant spent in Manila she had no trouble from the NPA.

The Tribunal did not err as alleged by the applicant.

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 Lockhart

Associate:

Dated:            9 September 1997

Counsel for the Applicant:	Mr J Parnell
Solicitor for the Applicant:	Belan Oag
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 August 1997
Date of Judgment:	9 September 1997