SZEWB v Minister for Immigration - [2005] FMCA 1145

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEWB & ORS v MINISTER FOR IMMIGRATION
& ANOR

[2005] FMCA 1145

MIGRATION – RRT – Filipino applicant and children – husband killed by insurgents – Tribunal found crime not within ambit of Convention – failure to address whether killing was politically motivated – decision not independently supported by findings on relocation and effective protection – matter remitted.

Migration Act 1958 (Cth), ss.91R, 430, 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Respondents S152/200 (2004) 205 ALR 487
Minister for Immigration v Yusuf (2001) 206 CLR 323
Minister of Immigration v Khawar 210 CLR 1
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30

Applicants:

SZEWB, SZEWC, SZEWD, SZEWE & SZEWF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2097 of 2004

Judgment of:

Smith FM

Hearing date:

4 August 2005

Delivered at:

Sydney

Delivered on:

4 August 2005

REPRESENTATION

Counsel for the Applicant:

Mr J Young

Solicitors for the Applicant:

McLaughlin & Riordan

Counsel for the First Respondent:

Dr M Allars

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal be joined as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
Order that a writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 20 May 2004 in matter N04/48281.
Order that a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 31 December 2003.
Order the first respondent to pay the applicants’ costs in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2097 of 2004

SZEWB, SZEWC, SZEWD, SZEWE & SZEWF

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

Respondents

REASONS FOR JUDGMENT

(revised from transcript)

Preliminary

This is an application under s.483A of the Migration Act 1958 (Cth) which seeks judicial review remedies in relation to a decision of the Refugee Review Tribunal dated 20 May 2004 and handed down on

10 June 2004. The Tribunal affirmed a decision of the delegate made on 31 December 2003 which refused applications for protection visas made by the five applicants. They are a woman and four young children who are dependent upon her and for whom she has taken responsibility. One of them is her own child, and the other three are children of her deceased husband.
The applicants’ claims for protection arise from the circumstances of the death of their husband and father and from subsequent events which I shall describe below. The delegate and the Tribunal dealt with their claims on the basis that the claims of the mother raised the substantial issues concerning the application of the Refugees Convention, and the Tribunal’s decision refers to her as "the applicant" – as shall I.
The applicant's household when she came to Australia also included a niece in relation to whom a separate application for Protection Visa was lodged, but whose claims relied upon the same events as were narrated by the applicant. However, her claim was dealt with by a different delegate on a different day, and the delegate refused her application for reasons which are markedly different.
When the niece appealed to the Refugee Review Tribunal, her matter was listed before the same Tribunal member for a hearing following that of the applicant. However, as the Tribunal indicates in her statement of reasons, the applicants in all the matters consented to evidence being taken from both the applicant and her niece, and to this being treated as evidence in both of the matters. The Tribunal then prepared a substantial set of reasons in the present matter, addressing the foundation concerns of the applicant and her children based on their membership of a family unit which had included their murdered husband and father. It was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention, and affirmed the delegate’s decision. The Tribunal then, on the same day, handed down reasons for reaching the same conclusion in relation to the niece, drawing upon the reasoning provided in its statement of reasons in the present matter, but also provided additional reasons.
Both applicants lodged applications for judicial review in this Court which were listed before me on the same day, one in the morning and one in the afternoon. Unfortunately, although the same lawyers have represented all applicants, the Minister instructed different lawyers. I first heard argument in the present matter, and have reached the conclusions which I propose to explain in the present ex tempore judgment given in the presence of the Minister’s representatives in the niece’s matter. I propose then to hear submissions from them on the implications of my reasoning for that matter. [Postscript: the niece’s matter was adjourned to allow the Minister further time to consider her position in both matters.]
The Court's jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction of the Federal Court is under s.39B of the Judiciary Act 1903 (Cth), but in the present matter this is subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and subsequent cases, the limitations on my powers have the effect that I cannot set aside the Tribunal’s decision and send the matter back unless I am satisfied the decision was affected by jurisdictional error. As will appear, I have been so satisfied in the present matter.

The applicant’s claims

The claims for refugee protection made by the applicant were summarised in a covering letter to her visa application written by her migration agent. This said that she was a Filipino national who feared to return to the Philippines “where her husband was executed in front of her”. The letter said that she feared that she and/or her children would be kidnapped, beaten and tortured or even killed by factions of the New People's Army. It said that she claimed that she was especially vulnerable because she “has a family”, that her experiences of police protection were that it was not available, and that “the police in the Philippines are corrupt and inefficient, making her unwilling and unable to avail herself of their protection”.
A statutory declaration by the applicant briefly gave an account of her husband's murder. She said that she had lived in a town or village where her husband was “an independent councillor allied to the municipality mayor”. He was also president of the “Association of Barangay Captains (ABC)” (Barangay meaning “a village”). She said that he was a marine engineer “elected by the people” in July 2002. She said:
4. For months after the election things were okay. But on (a date in February 2003) I was sitting under the Acacia tree next to our house with my son and husband, when around 30 men approached with guns. 5 of the armed men threatened us with guns while the rest entered the house and searched it.
5. They ransacked out house and took my husband’s two guns, radio and cell phone. The 5 that remained held us at gun point and told my husband. My sister in law lived next door to us and when she saw the gunmen she rang the police to tell them what was happening, but no police came.
6. They took us at gunpoint to (the husband’s) brother’s house, 2 blocks away, but his brother was not there. They executed my husband in front of my son and I, despite our pleas for mercy.
7. After they killed him, one of them shouted “we will kill all the (surname) family”. The gunmen then left the scene and I tried to take (the husband) to the hospital, but he was pronounced dead on arrival. I have attached a newspaper report describing the events from the (two days later) edition of the People’s Journal and English language newspaper in the Philippines.
8. It was the New Peoples Army that targeted my husband because I later leaved (sic) received threatening letters in their name.
9. I believe that they wanted my husband to use his council connections and ABC presidency to acquire guns for them, but he refused.
10. My husband believes in government and refused to help the rebels with their cause.
11. The New Peoples Army have carried out many operations in the Philippines in the last five years, including extortion and robbery to finance their insurrectionist war.
12. The New Peoples Army have cells all over the Philippines and could follow me anywhere. They want to pressure my family and other to help their cause. I fear to live anywhere in the Philippines and I especially fear for the safety of my family.
13. My husband had plans to run for mayor in the next election and this may be another reason that they killed him. The rebels hate those who side with government.
14. I fear to return to the Philippines for my life and the life of my family who are known to our persecutors.
Also forwarded with the visa application was a copy of an autopsy report, a copy of a police report two days after the murder, and two press reports concerning the murder. These generally corroborated the claims of the applicant and, although there were some inconsistencies, these were not found by the Tribunal to be of significance. The Tribunal appears to have accepted the circumstances of the death of the applicant’s husband as described in the above evidence.
The police report referred to “shot by his abductors heavily armed men believed to be CPPN/NPA”. It also referred to statements by witnesses that some of the armed men had inquired about the applicant’s brother-in-law, a police officer who lived in a neighbouring house. One press report referred to the deceased being “gunned down by still unidentified men believed to be members of the Rebolusyonaryong Hukbong Bayan (RHB)”. It said: “Police and military were pursuing the killers in the mountainous area of the town even as the police conducted follow-up in investigation on the motive of the killing.” The second press report identified the perpetrators as being “members of the RHB-ABB”, without explaining what these initials stand for.
In support of her claim that she had subsequently received extortion demands, the applicant forwarded to the Tribunal two letters which the Tribunal accepted had been received by her, with translations. The first demand for money purported to be written by a named “Commander (Region) Chapter”. It purported to be written by the same people who had “visited your place”. It contained the warning “no-one should know about this and we know you can afford it.”
A second letter purported to be from ‘RHB’, and made a further demand for money with the concluding threat: “Remember what could possibly happen if you do not comply with this”.
The delegate in her reasons in this matter described the applicant’s claims in a manner which counsel for the applicants accepted was an acceptable, albeit brief, summary:
In summary the applicant claimed that her husband was killed by the New Peoples Army (NPA) because of his position as an independent councillor in the local municipal council. The applicant claimed that she believes that the NPA asked her husband to obtain guns for them but he refused, as he is a supporter of the government. She claimed the NPA has carried out extortion and robbery to finance their war against the government. She can not live anywhere in Philippines as they will follow her and force her family to help them.
The delegate's reasons for not finding eligibility for a protection visa appear not to reject the Convention basis for the claims, but to have turned on findings that the government “had not failed in its duty to provide protection”, and that the applicant could “reasonably and safely relocate to another part of the country where the NPA influence is not strong and where there is minimal likelihood of being pursued by NPA members”.
The applicant's appeal to the Refugee Review Tribunal was assisted by her agent. The agent made a lengthy submission which addressed the matters decided by the delegate adversely, but also contained this summary of the applicant's claims to have a well founded fear of persecution:
Well founded fear of persecution.
(The applicant) has a well founded fear of persecution in the Philippines that results from the assassination of her husband and the subsequent death threats against her by the New Peoples Army.
The New Peoples Army is a Marxist Leninist guerrilla organisation operating a guerrilla based rebel campaign that seeks the overthrow of the elected government of the Philippines. Its political ideology is clear and the violence undertaken by the group is based upon their belief in guerrilla struggle.
The New Peoples Army see themselves as representatives of the marginalised and disenfranchised, however, since the collapse of the Soviet Union and the ongoing readjustment of the left internationally, the NPA has lost significant support amongst the populace.
This does not mean the organisation has become less dangerous. On the contrary, the dwindling mass support base in the peasantry and amongst students and intellectuals has led the inner core of the organisation to adopt ultra left tactics that include the targeting of civilians and softer targets to achieve their political aims and to maintain their political profile.
With the strategy of popular support less viable, the leadership has turned towards what may be cautiously termed terrorism. The politically motivated murder of the applicant’s husband must be seen in this context, the aim of which is to prove the relevance of the insurgency and the potency of the NPA as a political organisation.
The secondary reason for the murder was to find weapons for use in their armed struggle against the government. After her husband’s assassination, (the applicant) was threatened in the hope that she would be able to provide funds and in order to keep her quiet as a witness to a politically motivated crime.
The applicant is being targeted for her political opinion, imputed from the activities of her deceased husband as an independent councillor opposed the New Peoples Army and all other insurgencies. The applicant’s husband’s political opinion made him a particular target for guerrilla persecution as he was president of the Association of Barangay Captains.
Alternatively, it may be convincingly argued that (the applicant) is being targeted also because of her membership of a particular social group, the (surname) family, targeted because of the political opinion of the assassinated family head.
Since receiving the two threatening letters and given what happened to her husband, (the applicant) understandably feared for her life and being unable to avail herself of internal protection, fled the country as soon as she was able.
The agent also forwarded to the Tribunal a further statutory declaration of the applicant addressing the question of relocation. It included the statement: “I am afraid to live anywhere in the Philippines as cells of the New People's Army operate throughout the country”. She also explained why in her circumstances relocation would be difficulty and would not remove her fears. Various media reports were also presented, evidencing continuing guerrilla activity by New People's Army in the Philippines.
In its reasons the Tribunal under the heading “Claims and Evidence” summarised the applicant's claims which I have referred to above. Although not fully reciting the evidence upon which the applicant claimed that the murder of her husband was related to his political situation, the Tribunal did refer to some evidence relevant to this. For example, it referred to the applicant's belief that he was hated as a person “who side with the government”.
The Tribunal also gave a description of what happened at the hearing. A transcript of the evidence is in evidence, but counsels’ submissions proceeded today on the basis that the Tribunal's description was generally accurate. The Tribunal said:
The Tribunal confirmed with the applicant that her husband was working as a councillor at the time of his death. She said that he had an office in the municipal building in town but that his constituents from the village would sometimes call on him at home to discuss specific problems. She said that he did not appear to have any problems at the time of his death, nor had there been any indications of people taking an adverse interest in him.
The Tribunal noted that the applicant used the term NPA to describe the assailants, but that this term was not used by other commentators on the incident: for example, in the police report or in the newspaper reports. In fact, the latter had used the term RHB. The applicant said that the first time that she heard the term RHB used in connection with her husband’s killers was when she read the newspaper report. She said that the journalist heard it from the applicant’s neighbours, who claimed that the assailants shouted it as they were leaving. The applicant said that in any case, NPA and RHB were all the same – all communists.
At the time of the incident (date), the property next door was occupied by Sgt (name), the brother-in-law of the applicant’s husband. He was a police officer. When the armed men were confronting the applicant and her husband and child in the yard outside their house, the next-door neighbours must have been able to see what was taking place. However, according to the applicant, Sgt (name) locked his own doors and hid inside, rather than coming to the assistance of the applicant’s husband. Sgt (name)’s wife telephoned the police. It was Sgt (name) who later told the applicant that the NPA were responsible for the incident and that the police were frightened of the NPA. The applicant noted that the police interviewed herself and the other witnesses only once.
The Tribunal asked the applicant if she stayed in the house after the death of her husband. She said that she went home to her parent’s house, which was about an hour away if travelling by bus. Some of her husband’s friends visited her at her parent’s house after her husband’s death and said that they had confirmation that it was the rebels who had killed him. This confirmation came from some of the local villagers (that is, constituents in the barangay represented by the applicant’s husband) who themselves were NPA members. The applicant understood that the NPA had been sending her husband letters demanding a “revolutionary tax” and weapons.
The Tribunal put it to the applicant that she had previously said that there was no sign that anyone was taking an adverse interest in, or causing problems for, her husband prior to his death. The Tribunal put it to her that extortion letters were problems that should have been reported to the authorities. She replied that her husband had mentioned receiving these letters but that he had not complied with any of the demands. He had apparently not reported these letters to any one.
The Tribunal then described lengthy questioning of the applicant about the letters demanding money, evidence taken from the applicant's niece, and other matters to which it is not necessary for me to refer.

The Tribunal’s finding that the murder was not “within the ambit of the Convention”

The Tribunal’s assessment of the applicant's claims appeared under the heading ‘Findings and Reasons’. The opening four paragraphs are:
On the evidence of their passports, the Tribunal finds that all applicants are citizens of the Philippines and assesses their claims against that country.
The Tribunal accepts that the applicant’s husband was killed by armed men who also stole two guns, a radio and a mobile phone from his home. The Tribunal accepts that the incident was correctly reported to the police, who investigated, but who failed to find the assailants. The Tribunal accepts that there were newspaper reports that the armed men may have belonged to a rebel group called the RHB and that they may also have been looking for a police sergeant who was both a relative and neighbour of the dead man.
The Tribunal accepts that the incident must have been very traumatic for the applicant, who was an eye-witness to her husband’s death. It understands her wish to distance herself from the place where the incident occurred and her desire to do the best by her late husband’s children. It also accepts that the applicant feels responsible – and indeed, is responsible – for four young children and her niece; and that she wishes to shield her parents from any of her own troubles.
Nevertheless, the compassion that one must feel for a person in the applicant’s circumstances must not blind one to the facts of the matter when assessing whether she engages protection obligations.
The Tribunal then made findings about the two letters of demand of extortion and the applicant’s claim that she also received mobile phone demands. It characterised each of the demands as “opportunistic”. The meaning and reasons for this conclusion are unclear, but I take it that the Tribunal concluded that the letters were not as they purported to be, made by the murderers of her husband, but were written by unknown and unrelated extortionists. Although criticisms of the Tribunal’s reasoning about this were made by counsel for the applicants, it is unnecessary for me to examine these matters.
The Tribunal then returned to the killing of the applicant’s husband, and stated its reasoning and conclusions in two paragraphs:
In short, the applicant’s husband was the victim of a crime which did not fall within the ambit of the Convention. There are no claims, nor does the evidence indicate, that any harm was intended at the time or subsequently to the applicant. Nor are there any claims, nor does the evidence suggest, that the harm which befell the applicant (the witnessing of her husband’s death) was for a Convention reason. The Tribunal notes that the State authorities acted promptly and properly in relation to the crime, even if they were unable to arrest and charge the perpetrators.
The applicant has claimed that she has had two threatening letters and a number of phone messages since her husband’s death from her husband’s killers demanding money. The Tribunal is not satisfied that the two letters (which it accepts) are related to the first incident or even to each other but rather are unsophisticated and opportunistic attempts to “cash in” using publicly available knowledge. The Tribunal does not find that letters demanding money, on the grounds as stated in the letters that the writers believe the applicant can afford to pay, fall within the ambit of the Convention. The Tribunal does not accept that the applicant received messages on her mobile phone, or that she was followed. It does not place weight upon third-hand reports that “strange cars” were seen in the vicinity of her parent’s house, thereby indicating that some people were looking for the applicant with the intent of doing her harm.
The central issue raised by the present application is to discover the reasoning followed by the Tribunal when deciding that the murder of the applicant's husband, and the applicant's fears arising from that incident, did not “fall within the ambit of the Convention”.
The Tribunal’s only discussion of the incident is found in the two paragraphs which I have highlighted in the extracts above. Nowhere in this discussion does the Tribunal performing an analysis of the motives of the murderers and the reasons for their selection of the applicant's husband as their target. Indeed, it is not clear whether the Tribunal has even attempted to made findings as to who the murderers were.
Counsel for the Minister referred to the sentence:
The Tribunal accepts that there were newspaper reports that the armed men may have belonged to a rebel group called RHB.
She submitted that this implicitly accepted that they were insurgents of the group called RHB. However, this would give the Tribunal’s statement a reading contrary to its literal meaning, and would also leave unclear why the Tribunal accepted this report and not the other reports which identified different insurgent groups as being suspects. If, indeed, the Tribunal accepted that the murderers were a “rebel group”, this finding also draws attention to the absence of any further discussion on whether there were political motivations for the murder.
Giving the Tribunal's reasoning the latitude that I am required to give, see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, I think that the Tribunal's reasoning on this critical issue must be found in the second of the paragraphs which I have emphasised above. However, this too contains reasoning which is cryptic.
Examining that paragraph, I accept the submission of counsel for the Minister that the Tribunal provided its critical finding and conclusion in its first sentence “the applicant's husband was the victim of a crime which did not fall within the ambit of the Convention”. It then provided statements which purported to give some explanations for this conclusion, without providing an exhaustive chain of reasoning. To give reasoning in this manner does not necessarily reveal error (c.f. Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 at [14]).
On this reading of the opening sentence, the Tribunal has concluded that the circumstances of the murder did not allow the applicant’s fears arising from it to be brought within the Convention due to the characteristics of the incident as “a crime”. It also appears that the Tribunal did not feel it necessary to elucidate the reasoning leading to this characterisation and to its conclusion in relation to the Convention.
This is a situation where I consider that I can draw inferences from the omission of further discussion, given the obligation on the Tribunal under s.430 to include its findings “on any material questions of fact” (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], 75]). In particular, I conclude that the Tribunal thought that it was not necessary as a matter of law for it to engage in further examination of the underlying reasons for what it found to be “a crime”, and in particular for the targeting or selection of the victim. In my opinion, the Tribunal has formed the view that it was not necessary for it to address the fears of the applicant that the murder was politically motivated, in the sense that the choice of the victim related the deceased's political position and his failure to support the insurgency movement.
However, the failure to address that issue was, in my opinion, a failure to address an essential element of the claims of the applicant for protection under the Convention. The Tribunal was prepared to accept or assume that the perpetrators were members of a rebel group pursuing political objectives, but has failed to deal with the claim that the applicant’s husband, and consequently his family, were targeted for a criminal attack for political motives. In my opinion, this claim was clearly raised in the material that I have extracted above. She claimed to fear that violence against her and her family would be repeated, due to the murder of her husband as a perceived supporter of democratic institutions maintained by the government and as a perceived opponent of the insurgents and their political objectives.
By failing to address and make finding upon this element in the applicant's claims, the Tribunal has, in my opinion, made an jurisdictional error by constructively failing to perform its duty to “review” the delegate’s decision by reference to the claims made by the applicant. This has recently been described in the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63].
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.
Counsel for the Minister argued that I should not infer error from the Tribunal's silence as to the motivation of the persecutors and their reasons for selecting the victim. She sought to persuade me that the Tribunal made an implicit finding addressing the question of political targeting, and that it concluded that the deceased was, in effect, randomly targeted for a criminal attack by rebels seeking to steal arms. Such reasoning might have been open to the Tribunal, although it would appear to fly in the face of circumstances pointing in the opposite direction. However, I am unable to identify the Tribunal making such a finding or following reasoning which would lead it to such a finding. Rather, I consider that it has failed to complete its review function by stopping short at a characterisation of the killing as “a crime”.
I therefore conclude that the Tribunal failed to exercise its jurisdiction to review the delegate's decision in relation to all the claims made by the applicant, and that its conclusion in relation to those claims was vitiated by jurisdictional error.
I am supported in this conclusion because I am also prepared to infer that the reason for the Tribunal’s failure to address an essential element in the applicant’s claims was a simplistic legal opinion that the shooting of the applicant's husband would necessarily not be for “reasons” providing a Convention ground by reason of its criminal nature. However, reflection upon guerrilla insurgencies should suggest that this must be wrong. Underlying the claims made by this applicant was historical knowledge that crimes of violent theft, murder and extortion against perceived supporters of government are a standard tactic of insurgents in the pursuit of political objectives. The criminal nature of these actions does not allow them to be put aside as necessarily not “for reasons … of political opinion” and as falling outside the ambit of the Convention.
The Tribunal, in my opinion, was obliged by the Convention definition of “refugee”, as adopted and modified by the Act, to address whether there were Convention reasons for the crime perpetrated on this family, and whether within s.91R(1)(a) they were “the essential and significant reasons for the persecution”.
There was discussion in the course of the hearing concerning the sentences which followed the “in short” sentence which I have addressed above as providing the Tribunal's essential finding and conclusion. These sentences are difficult to understand, even accepting that they were put forward only as partial explanations for the conclusion made in the opening sentence rather than links in a chain of reasoning.
However, the sentence: “nor are there claims ……that the harm which befell the applicant (the witnessing of her husband's death) was for a Convention reason” is difficult to explain.Read literally, the assertion that there are “no claims” raising a Convention reason for the death tends to confirm that the Tribunal overlooked that a political explanation for the crime had been part of the applicant's claims.
Counsel for the Minister attempted to explain this sentence as intending to say only that the applicant did not claim that the murder was directed at her as distinct from her husband. However, this is stretching the language used by the Tribunal and I am unable to read it in that way. It would also not seem to be a relevant answer to the claim that the applicant’s fears of harm to herself and her family resulted from a politically motivated killing of her husband. Whatever it means, I cannot find in this sentence nor in any other part of the Tribunal’s reasoning an indication that the Tribunal has properly addressed this issue.
As I have noted, the Tribunal's reasoning in relation to the extortion letters was the subject of criticism by counsel for the applicant in relation to its factual basis and other aspects, but I do not find it necessary to address his arguments. I do not think that the Tribunal's discussion of the letters and its conclusion about them, even if not revealing any separate error of law, can overcome the failure of the Tribunal to address the essential issues in relation to the killing of the applicant’s husband.

The Tribunal’s reasoning about relocation

Counsel for the Minister sought to maintain the validity of the Tribunal's ultimate decision to affirm the delegate's decision, by arguing that it had independent support in findings on relocation and effective protection. She argued that any error in the assessment of whether the applicant had experienced “persecution” for a Convention reason was, therefore, immaterial.
The Tribunal's conclusions about relocation were contained in two paragraphs:
The Tribunal sympathises with the applicant’s desire to move away from a place which must hold many sad memories. However, it must be said that no harm befell her in the village where she lived with her husband or the nearby town where she worked and where her children went to school. Even though she did not continue to live there after her husband’s death, she travelled there twice a day to take the children to and from school; and her PVA indicates that she continued to work in her place of employment there until June 2003. Her niece began college there and continued until the family left the Philippines. Nor did harm befall her while living at her parent’s place, perhaps an hour away from her marital home.
However, if the applicant wishes to move from her former place of residence, there is no reason why she cannot do so within the Philippines. There is freedom of movement within the country. The applicant and her family are members of the ethnic, linguistic and religious majority. The applicant has shown herself to be an extremely resourceful woman in caring for her dependents (including her niece). She is skilled and has been in the paid workforce for a number of years, as well as helping her husband run a profitable rice mill (as revealed at hearing), which she still owns although it is currently dormant.
These findings followed the Tribunal's conclusions in which it found that the applicant’s history did not contain persecution coming within the ambit of the Convention. Those findings, as I have found, failed to address whether the applicant and her family had experienced persecution from insurgents which had been politically targeted at her family. The effect of that failure may well have been to cause the Tribunal to fail properly to address the likelihood of such persecution re-occurring in the future and failing properly to consider where it might be encountered.
I am not satisfied that the Tribunal provided its conclusion about relocation independently of its previous findings in relation to whether there was a Convention basis to the applicant's fears. In this respect I think the onus is on the Minister to persuade me that it was unaffected by the Tribunal’s errors. A significant claim by the applicant was that she was at risk from insurgents anywhere in the Philippines where she could reasonably be expected to take her family. I consider that it is likely that the Tribunal’s error would have caused it not to have assessed this claim properly on its merits. I am not persuaded to reach the converse conclusion.
Counsel for the Minister attempted to support the Tribunal’s relocation finding also on the basis that the Tribunal had found that the insurgents feared by the applicant were only the RHB Group, and that this group had only a local area of operation. However, I cannot find such a finding made by the Tribunal, and in particular not as the basis for its conclusions about the reasonableness of relocation. I am also doubtful whether it would have been open on the evidence before the Tribunal, particularly in view of the police report, to have ruled out a real chance that the perpetrators were members of other insurgent groups.

The Tribunal’s reasoning about effective protection

In relation to effective protection, the Tribunal said:
The Philippines Government has consistently shown itself, over the years, opposed to rebel groups and active in dealing with them; and there is no reason that the applicant could not seek assistance from the State authorities if she were facing extortion demands from any of them. The inefficiency of certain police stations, or the corruption of particular officers, does not negate the concept of State protection.
Counsel for the applicant submitted that the Tribunal's statement which put aside consideration of “the inefficiency of certain police stations or the corruption of particular officers” showed that it failed to appreciate that such matters were relevant, and had to be addressed, when considering effective protection. He cited Gleeson CJ’s reference in Minister of Immigration v Khawar 210 CLR 1 at [29] to a need to consider whether a failure of the State to protect victims “resulted from inability to do anything about it”. A need to address ability as well as willingness to afford protection is also recognised in the judgments in Minister for Immigration and Multicultural Affairs v Respondents S152/200 (2004) 205 ALR 487 (e.g. at [21], [34], [77], [101]).
In the paragraph set out above, I cannot find the Tribunal addressing that issue and making the assessment required of the effectiveness of the Philippines government's opposition to rebel groups insofar as it might relate to the circumstances of this applicant and her family. Her own account raised the effectiveness of government responses as an important issue, since she described how her brother-in-law, a police officer living nearby, had so ineffectively responded to the attack of the insurgents.

Counsel for the Minister drew my attention to the following paragraph earlier in the Tribunal's reasons, and argued that it had addressed issues of effective protection:
Again, there is nothing before the Tribunal that indicates that the Philippines authorities would not have acted if the applicant had informed them of this letter. The Tribunal says this notwithstanding the number of newspaper articles which the applicant has supplied which point to various inefficiencies or corruption on the part of the police, and reports of ongoing activities of the NPA and other similar groups. The Tribunal notes independent evidence from the latest US Department of State report on the human rights practices in the Philippines which indicates that “The Government generally respected the human rights of its citizens; however, there were serious problems in some areas.” The “problem areas” involving the police were that “Police and local government leaders at times appeared to sanction extrajudicial killings and vigilantism as expedient means of fighting crime and terrorism”. In other words, the police took action – and at times too much action, action that was extrajudicial – against those whom they regarded as terrorists.
However, I do not accept that in this paragraph the Tribunal addressed anything other than what it thought would be the responses of the Philippines authorities to a complaint in relation to the extortion letter which was the subject of its consideration at that part of its reasons.
I am not satisfied that the Tribunal's findings about effective protection were untainted by error of law. I am also not satisfied that they were untainted by the Tribunal’s error when addressing the foundation claims of the applicant to fear persecution.
For the above reasons I consider the applicant has made out grounds for relief by way of writs of certiorari and mandamus, and that its errors were jurisdictional so as to permit the Court to order relief in this case. I propose to make those orders, and I shall enter them forthwith unless I am requested not to do this.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 16 August 2005