Re Feliciano v Minister for Immigration and Ethnic Affairs

[1996] FCA 907

CATCHWORDS

ADMINISTRATIVE LAW - statutory appeals from Administrative Authorities to courts - review of decision to refuse applicant refugee status and a protection visa - whether there was evidence or other material to justify the decision - whether decision based on a fact which did not exist.

Migration Act 1958 (Cth) ss 475, 476(1)(g) and 476(4)

Curragh Queensland Mining Ltd v Daniel & Ors (1992) 34 FCR 212

RUBEN FELICIANO v
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ANOR

No. NG 771 of 1995

CORAM:       BRANSON J
PLACE:       SYDNEY
DATE:        18 OCTOBER 1996

IN THE FEDERAL COURT OF AUSTRALIA )   
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 771 of 1995
GENERAL DIVISION                 )

BETWEEN:               RUBEN FELICIANO
  Applicant

AND:                   MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS
  First Respondent

KAY RANSOME sitting as
  REFUGEE REVIEW TRIBUNAL
  Second Respondent

CORAM:    BRANSON J
PLACE:    SYDNEY
DATE:     18 OCTOBER 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:
     The decision of the Refugee Review Tribunal is affirmed.

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 )    No. NG 771 of 1995
GENERAL DIVISION                 )

BETWEEN:               RUBEN FELICIANO
  Applicant

AND:                   MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS
  First Respondent

KAY RANSOME sitting as
  REFUGEE REVIEW TRIBUNAL
  Second Respondent

CORAM:    BRANSON J
PLACE:    SYDNEY
DATE:     18 OCTOBER 1996

REASONS FOR JUDGMENT

APPLICATION

By an amended application for review, the applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the RRT") made on 19 September 1995:-
     (a)  not to grant the applicant refugee status; and
     (b)  not to grant the applicant a protection visa.

The grounds of the application are expressed as follows:-

1. there was no evidence or other material to justify the making of the decision, with the following particulars:

ano evidence that the New People's Army Advisory Committee as an entity lacks the experience in weapon handling or guerilla tactics.

bno evidence that the applicant did not have a non-combatant role."

REASONS OF THE REFUGEE REVIEW TRIBUNAL

The above grounds cannot be understood without reference to the reasons for decision of the RRT.

The wife of the applicant was an applicant before the RRT.  She is not an applicant before this Court.

The applicant and his wife gave evidence before the RRT that they had joined the New People's Army (NPA) in the Philippines in 1990.  The applicant stated that he did not have a combatant role within the NPA and therefore did not undertake any military style training.  He said that he formed part of a committee that provided advice about the financial status of the group, as to where supplies could be obtained, and of what to do in the face of an operation against them by the military.  The above evidence was and is fundamental to the applicant's claim of refugee status and for a protection visa.

The reasons of the RRT record that it found that there were a number of aspects of the case which caused it to doubt the veracity of the applicant's claims.  In particular it referred to information supplied by the Department of Defence in a
briefing on 19 August 1992.  Such information included the following passage:-

"The NPA, - unlike the Communist Party of the Philippines (CPP) or the National Democratic Front (NDF) - is a fighting/guerilla force, and its members would all undertake weapons and commando-style tactical training.  NPA members would tend to possess personal weapons and could be issued specialised weapons for particular operations.

... There are no permanently non-combatant roles, male and female members are allocated positions appropriate to the operations being undertaken: operational planning is typically thorough and execution highly-structured, particularly in relation to the activities of 'sparrow units' and other urban groups."

The reasons of the RRT then refer to the evidence of the applicant and his wife as follows:-

"Both applicants state that they did not have a combatant role and were given no training in weapons handling or guerilla tactics.  That also does not accord with known information about the way the NPA operates.  Mr Feliciano has stated that he was part of an advisory committee which provided advice to the leader of the NPA of what to do in the face of the attack by the military.  Mr Feliciano acknowledged at the hearing that he had no experience or training which would particularly equip him for this role.  It is implausible that the local NPA commander would seek advice on such matters from a committee with no tactical or guerilla experience in situations which may involve some urgency.

... While Mr Feliciano has some knowledge of the history and philosophy of the organisation, the Tribunal ... concludes that, based upon inconsistencies between his evidence and known information about the NPA, that he ... was not a member.

The applicant's account of events and their fear of return to the Philippines stems from their membership of the NPA.  As the Tribunal does not accept that they were members of the NPA, it also does not accept that those events occurred."

STATUTORY FRAMEWORK

The decision of the RRT is a "judicially-reviewable decision" within the meaning of s475 of the Migration Act 1958 (Cth) ("the Act"). Section 476 of the Act provides that application may be made for review by the Federal Court of a judicially-reviewable decision on one or more specified grounds. The ground here invoked is that specified in s476(1)(g), namely "that there was no evidence or other material to justify the making of the decision". Subsection (4) of s476 provides as follows:-

"(4)The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

The effect of s476(4) is that the "no evidence ground" may be made out if, but only if, the case falls within s476(4)(a) or
(b) (Curragh Queensland Mining Ltd v Daniel & Ors (1992) 34 FCR 212 at 220 per Black CJ).

SECTION 476(4)

It was contended on behalf of the applicant that both pars(a) and (b) of s476(4) are satisfied in this case. However, as to par(a), Mr Parnell, counsel for the applicant, did not clearly identify the "particular matter" which it was contended would require the decision-maker to reach a particular decision were such matter established. When one has regard to the findings of fact identified by the amended application in this case as being those as to which it is asserted that there was no evidence, it seems to me to be plain that neither of them is capable of supporting an argument based on s476(4)(a). As to neither of them could it be said that the decision-maker was required by law to reach the decision which it did only if such finding were made.

As to s476(4)(b), Black CJ, with whom Spender and Gummow JJ agreed, stated in the Curragh Queensland Mining Case at 220-221 in respect of a comparable provision contained in s5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") as follows:-

"Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision.  A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision.  A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance.  A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion."

The reasons of the RRT make it clear that it did not base its decision on the existence of the fact that "the New People's Army Advisory Committee as an entity lacks the experience in weapon handling or guerilla tactics" (see the terms of the present application).  Indeed, as the RRT did not accept that the applicant was a member of the NPA, it necessarily did not accept that he was a member of any advisory committee of the NPA.  The RRT regarded the applicant's account of events in the Philippines, which necessarily included his account of his involvement in an advisory committee of the NPA, as a fabrication. 

The RRT's principal reason for regarding the applicant's account of events in the Philippines as a fabrication was the inconsistency between his evidence that he had no combatant role with the NPA and was given no training in weapon handling or guerilla tacts, and the information supplied by the Department of Defence that all members of the NPA would undertake "weapons and commando-style tactical training".  It was not open to the applicant to contend, and he did not
contend, that the fact that he had no combatant role with the NPA and was given no training in weapons training and guerilla tactics did not exist.  Nor was the applicant able to show that the fact asserted by the Department of Defence that all members of the NPA would undertake weapons and commando-style tactical training did not exist. 

In my view, neither of para(a) nor para(b) of s476(4) of the Act is satisfied in this case.

Indeed, once it is accepted, as in my view in the circumstances it must be, that the RRT was entitled to act on the above advice from the Department of Defence, it becomes clear that, even without reference to s476(4), the applicant cannot make out a complaint that there was no evidence or other material to justify the making of the decision reached by the RRT in this case.

The decision of the RRT is affirmed.

I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of the Honourable Justice Branson.

Associate:

Date:        18 October 1996

Counsel for the applicant:           Mr J. Parnell

Solicitors for the applicant:             Belen Oag

Counsel for the respondents:         Mr B. Preston

Solicitor for the respondents:       Australian Government
  Solicitor

Hearing date:  11 October 1996