Schwarzkopf, Sidney v Minister for Immigration & Multicultural Affairs

[1998] FCA 1049

FEDERAL COURT OF AUSTRALIA

IMMIGRATION – Migration Act 1958 (Cth) – application to review Refugee Review Tribunal decision to refuse protection visa – whether fear of persecution for reason of political opinion – whether fear well-founded

Migration Act 1958 (Cth) ss 420, 475, 476

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300

SIDNEY SCHWARZKOPF & ANOR v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1120 of 1997

BRANSON J
SYDNEY

1 SEPTEMBER 1998

GENERAL DISTRIBUTION

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1120   of   1997

BETWEEN: 

SIDNEY SCHWARZKOPF
FIRST APPLICANT

MARIA SCHWARZKOPF
SECOND APPLICANT

AND: 

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE(S):

BRANSON J

DATE OF ORDER:

1 SEPTEMBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal be affirmed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

              GENERAL DISTRIBUTION

NEW SOUTH WALES DISTRICT REGISTRY

  NG 1120   of   1997

BETWEEN: 

SIDNEY SCHWARZKOPF
FIRST APPLICANT

MARIA SCHWARZKOPF
SECOND APPLICANT

AND: 

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE(S):	BRANSON J
DATE:	1 SEPTEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the respondent not to grant a protection visa to the applicants.  The applicants are entitled to a protection visa if the relevant decision-maker is satisfied that they are persons to whom Australia has protection obligations under the 1951 Convention relating to the status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Refugees Convention”).  The applicants’ claims to be entitled to a protection visa are based on the circumstances of the first applicant (“Mr Schwarzkopf”).  The second applicant relies on her membership of Mr Schwarzkopf’s family unit.  Australia will have protection obligations to Mr Schwarzkopf under the Refugees Convention if 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” (Article 1A(2) of the Refugees Convention).

BACKGROUND FACTS

The Tribunal apparently accepted the applicants’ claims concerning their experiences in the Philippines.  Their claims were as follows.  Mr Schwarzkopf owned a successful trucking business in Quezon City (“the company”).  The company ran trucks from Manila to areas in the south of the Philippines.  In May 1995 Mr Schwarzkopf received a letter which stated that the New People’s Army (“the NPA”), the armed wing of the Communist Party in the Philippines, expected him to pay revolutionary taxes of 1,000 pesos per month.  It is not suggested that this demand was made on Mr Schwarzkopf by reason of his political opinion, or by reason of a political opinion ascribed to him, or for any other convention related reason.  Mr Schwarzkopf stated that he felt that his life and the lives of his family would be in danger if he did not make the payments required by the letter.  From June to November 1995 Mr Schwarzkopf made payments to the NPA and also allowed the NPA to use his vehicles.

In December 1995, one of the drivers employed by the company was beaten after refusing to take part in a NPA ambush using one of the company’s trucks.  On 4 December 1995, as a consequence of this incident, Mr Schwarzkopf met with a NPA leader, argued with him or her, and said that he would not make further payments to the NPA.  Mr Schwarzkopf said that he could not longer accept NPA principles, was against communism, and threatened to report the NPA to the authorities.  After leaving the meeting unharmed, Mr Schwarzkopf received a threatening telephone call during which the caller said, “we will get you”.

Mr Schwarzkopf received approximately eight threatening calls on his mobile phone between 4 December 1995 and the second week of January 1996.  On 6 December 1995, after the second threatening call, the applicants left their home and lived with relatives.  They arrived in Australia on 2 February 1996.  They lodged combined applications for a protection visa on 8 February 1996.

Mr Schwarzkopf told the Tribunal that he believed the NPA wanted to harm him not so much because he refused to make further payments to them, but because he had threatened to report them to the authorities.

The Tribunal referred to reports linking the NPA to the deaths of many prominent people in the Philippines, and to reports which indicated that, although the NPA has declined in strength, it continues to be responsible for the deaths of its perceived or actual opponents including police officers.

REASONS OF THE TRIBUNAL

The Tribunal referred to observations of Gummow J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 as to the meaning of “persecution”. His Honour said at 375:

“In ordinary usage, the primary meaning of “persecution” is:

The action of persecuting or pursuing with enmity and malignity, esp the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it; the fact of being persecuted; an instance of this.

Accordingly, I agree with the following formulation by Burchett J in giving the judgment of the Full Federal Court in Ram v Minister for Immigration and Ethnic Affairs:

“Persecution involves the implication of harm, but it implies something more: on element of an attitude on the part of those who persecute which leads to the implication of harm, or an element of motivation (however twisted) for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.  Not every isolated act of harm to a person is an act of persecution.”

The Tribunal concluded that the sole motivation for the harm feared by the applicants is the NPA’s fear that Mr Schwarzkopf would report the NPA to the authorities.  It went on:-

“Even if the agents of harm think Mr Schwarzkopf would expose their activities because of a political opinion which they attribute to him, that is not a reason for the persecution in any issue relevant to the policy of the Convention.  Mr Schwarzkopf is being targeted as an individual because of what he knows and what he might expose, and not “for reasons of” his actual or imputed political opinion.  I find that Mr Schwarzkopf does not fear persecution for any actual or perceived anti-communist opinion.

I find that the motivation of those who seek to have Mr Schwarzkopf arrives from the belief of the NPA that he might expose their activities and has nothing to do with his political opinion.  Therefore I find that the harm Mr Schwarzkopf fears is not owing to the Convention ground of political opinion.

In addition, the Tribunal concluded that:

“The independent evidence does not suggest that the NPA mistreat those who have had minimal contact with them.  In my view there is nothing in the independent evidence or in Mr Schwarzkopf’s own evidence which suggest that his threat to report the NPA to the authorities was perceived by the NPA as being of any significance.  In my view, if the NPA had indeed regarded Mr Schwarzkopf as a government asset then there would be more evidence to this effect than a number of threatening telephone calls.  I find that the threats Mr Schwarzkopf received represented the extent of the harm the NPA wanted to inflict on him.

The Tribunal found that Mr Schwarzkopf does not have a well-founded fear of persecution in the Philippines.

CONSIDERATION

The decision of the Tribunal is a “judicially reviewable decision” within the meaning of s 475 of the Migration Act 1958 (Cth) (“the Act”). The grounds upon which the Federal Court may review such a decision are exhaustively enumerated in s 476 of the Act.

The submissions of the applicants appeared largely to proceed on the assumption that there is a general right of appeal from a decision of the Tribunal.  The written submissions of the applicants make the following broad criticisms of the decision of the Tribunal:-

“The Tribunal’s findings are flawed because:-

(a)The Tribunal fails to adopt a holistic approach to the interpretation of the Convention: Applicant A v Minister at 333 per Brennan CJ, 339.35; per Dawson J.; 351.30 per McHugh J.

(b)The Tribunal confuses the legal test to be applied as to “political opinion” with that applied in relation to “membership of a particular social group”.

(c)There are many internal inconsistencies among relevant factual findings made by the Tribunal and the Tribunal fails to address those inconsistencies.

(d)There is no evidence or other material to justify the making of the findings (within the meaning of Section 476(1)(g) of the Migration Act 1958 (“the Act”).

(e)The Tribunal wrongly assumes that the Convention would not protect Mr Schwarzkopf even if the NPA’s fear of exposure were triggered by Mr Schwarzkopf’s anti-NPA political opinion.

(f)The Tribunal wrongly assumes that the Convention provisions would apply only if the sole motivation behind the persecution were the repression or extirpation of Mr Schwarzkopf’s political opinion.

(emphasis in original)

The more detailed criticisms of the decision of the Tribunal made by the applicants’ written submissions include challenges to the significance placed by the Tribunal on its various findings of primary fact, and on the inferences drawn by it from such findings. Neither in the applicants’ written submissions, nor in the oral submissions of counsel, were these criticisms placed in any meaningful way within the context of s 476 of the Act.

The application for an order of review filed on 22 December 1997 was made on one ground only, namely that the decision of the Tribunal involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the Tribunal (s 476(1)(e).  During the course of the hearing, following questioning by the Court as to how submissions being made on behalf of the applicants arose out of the only ground of review referred to in the application, the applicants sought and were granted leave to add a second ground of review, namely, that there was no evidence or other material to justify the making of the decision (s 476(1)(g)).

Section 476(4) of the Act 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 found the decision on the existence of a particular fact and that fact did not exist.”

No submissions were put to the Court on behalf of the applicants in an endeavour to establish that the requirements of either of paragraphs (a) or (b) of s 476(4) had been made out. Paragraph (a) of s 476(4) could not have any application in the circumstances of this case. For the reasons given below, paragraph (b) of s 476(4) in fact has no application in this case. It is not necessary for me to give further consideration to the ground of review set out in s 476(1)(g) of the Act.

The applicants contend that the decision of the Tribunal involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the facts as found by the Tribunal.  In particular the applicants argued that the Tribinal adopted a wrong approach to its determination of whether the NPA’s interest in Mr Schwarzkopf was “by reason of” his political opinion or a political opinion imputed to him.  However, a difficulty in the way of the applicants succeeding on the basis of this contention, assuming for present purposes that it is otherwise sustainable, is the finding of the Tribunal that the NPA did not perceive Mr Schwarzkopf’s threats to report them to the authorities as being of significance, and that the telephone threats that Mr Schwarzkopf received “represented the extent of the harm the NPA wanted to inflict on him.”

The Tribunal noted that the applicants remained in the Philippines from 4 December 1995 to 1 February 1996, staying mainly in the home of Mrs Schwarzkopf’s parents, without suffering harm beyond telephone threats.  Mr Schwarzkopf told the Tribunal that he believed that the NPA had the ways and means to find him wherever he went.  He ascribed to “luck” the fact that the applicants suffered no harm other than calls to his mobile telephone during this period.  In my view, it cannot be said that there was no evidence or material from which the Tribunal could reasonably be satisfied that Mr Schwarzkopf’s threats were not of significance to the NPA, and that the telephone threats represented the extent of the harm that the NPA wanted to inflict on Mr Schwarzkopf.  I am not satisfied that these findings were perverse (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason J at 358-359). Nor am I satisfied that such findings indicate that the Tribunal failed to act according to substantial justice and the merits of the case as required by s 420(2) of the Act (Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 per Davies J at 203 and Burchett J at 317). The Tribunal was, in my view, entitled to infer from the evidence and material before it, that the failure of the NPA to do more than make threatening telephone calls to Mr Schwarzkopf between 4 December 1995 and 1 February 1996 was not simply a matter of luck, but indicated a lack of an intention in the NPA to do any real harm to the applicants.

It is now well over two years since the applicants left the Philippines.  The Tribunal concluded, on a basis which was reasonably open to it, that the applicants were of no significance to the NPA when they left the Philippines.  It was not suggested that anything has happened in the interim to increase the level of the NPA’s interest in the applicants.  It was plainly open to the Tribunal, in my view, to conclude, as I am satisfied that it did, that any fear entertained by the applicants of being harmed by the NPA should they return to the Philippines is not well-founded.  On that basis, having regard to applicants’ case as put to the Tribunal, it was inevitable that the Tribunal would conclude that the applicants do not have a well-founded fear of persecution in the Philippines.

The decision of the Tribunal will be affirmed.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson

Associate:

Dated:             1 September 1998

Counsel for the Applicant:	Mr C.R. de Robillard
Solicitor for the Applicant:	Parish Patience, Solicitors
Counsel for the Respondent:	Mr T. Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 June 1998
Date of Judgment:	1 September 1998