SZKJJ v Minister for Immigration

[2008] FMCA 865

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKJJ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 865

MIGRATION – Review of decision of Refugee Review Tribunal – complaint that Tribunal failed to take into account relevant information – complaint that Tribunal should have undertaken further enquiries – applicant sought impermissible merits review – findings open to the Tribunal on the material before it – no obligation for Tribunal to seek further material or undertake investigation – Tribunal considered all of the applicant’s claims – no bias – no obligation to consider adequate state protection where there is no Convention nexus– no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91, 91R, 422B, 424A, 65, 36, 426, 441A, Division 4 of Part 7

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
WAGJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration [2002] FCAFC 432; (2002) 125 FCR 407
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, [2001] HCA 17
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104
SZBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 264
SZBBE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 753.
WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14
Refugee Appeal No 71427/99 (unreported; New Zealand Refugee Status Appeals Authority; 16 August 2000)
Minister for Immigration & Multicultural Affairs v Respondents 152/2003 [2004] HCA 18
MZRAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1261

Applicant: SZKJJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 904 of 2007

Judgment of: Nicholls FM

Hearing date: 25 February 2008

Date of Last Submission: 25 February 2008

Delivered at: Sydney

Delivered on: 27 June 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms H Younan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 13 March 2007, and amended on 18 June 2007, is dismissed.

2. The applicants pay the first respondent’s costs set in the amount of $3,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 904 of 2007

SZKJJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 13 March 2007, and amended on 18 June 2007, under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 7 December 2007, and handed down on 27 February 2007, which affirmed the decision of a delegate of the first respondent to refuse protection visas to the applicants.

Background

1. The first respondent has put two bundles of relevant documents before the Court (Court Book – “CB” and the Supplementary Court Book – “SCB”) from which the following background may be discerned.

2. The applicants are husband and wife.  They are citizens of the Philippines.  They arrived in Australia on 16 March 2006 and applied for protection visas on 8 August 2006 (see CB 1 to CB 31 and SCB 1 to SCB 17).  The applicant wife did not make claims to be a refugee in her own right, but applied for a protection visa on the basis of her membership of her husband’s family unit.  

The Applicant’s Claims to Protection

1. The applicant husband’s (“the applicant”) claims for a protection visa were that in 2000 he established an animal feed distribution business, in the Bulacan province of the Philippines and in parts of surrounding provinces.

2. During mayoral elections in 2004 he supported a particular candidate, who was unsuccessful. The supporters of the successful candidate, who included some of the applicant’s business rivals, started to harass the applicant, his family and his business. The claim was that in September 2005 “a gang” stole stock from his warehouse and that “rumour has it” that the gang members were working for one of the allies and political supporters of the mayor. In trying to pursue this matter, the applicant claims to have received death threats, and that in November 2005 “they” shot at his car in what he said was “an attempt to assassinate” him.

The Delegate’s Decision

1. The delegate refused the application on 3 October 2006 (see CB 35 to CB 43).  The delegate found that she could not be satisfied that the applicant’s fear of persecution upon return to the Philippines was well-founded.  First, the delegate found the claims to be “general”, and that no evidence had been provided in support of what were “serious claims”.  Second, that if the applicant had had a well-founded fear, given the serious nature of what was claimed, he would not have left his children behind in the Philippines.  Third, the applicant’s support for the mayoral candidate who belonged to a “legitimate political party in the Philippines” was “not unlawful” (see CB 41.9). Further, the delegate found that the applicant could safely and reasonably relocate to another part of the Philippines.

The Tribunal

1. The applicants applied for review by the Tribunal on 8 November 2006 (CB 44 to CB 47).

2. Both applicants were invited to appear at a hearing before the Tribunal on 19 December 2006 (the Tribunal’s reference to “2007” at CB 69.7 is clearly a mistaken reference to 2006 – see CB 50). The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 69.7 to CB and 71.7). The applicant wife did not attend the hearing. She had elected not to do so because she “had no claims of her own” (CB 69.7). 

3. Following the hearing, the applicant husband provided the names and contact details of two persons in the Philippines who he said could confirm that his “statement” in support of his protection visa application was true (see CB 66). 

4. The Tribunal found that the applicant was a “frank, honest and articulate witness” and it accepted “most of his claims without hesitation” (CB 71.8). The Tribunal noted that, to the extent that it had reservations about the applicant’s claims, this was to “do with the interpretation of the events he has recounted” (CB 71.9). The Tribunal accepted the applicant’s claims that he and business associates were harassed following his decision to support a particular political candidate in May 2004, that the successful candidate was allied with business rivals and, further, that it was persons associated with these business interests who were “behind the harassment.” Further, the Tribunal was satisfied that the applicant would not be able to obtain effective protection from “local authorities” (CB 72.2).

5. The Tribunal identified the relevant issues that it was required to determine as “whether the harm the applicant fears is persecution, and whether that fear is well founded; and, if so, whether he could avoid the harm he fears by relocating elsewhere in the Philippines” (CB 72.3). 

6. The Tribunal did not accept that there had been an attempt on the applicant’s life, noting that the claim was that his car was “shot at” in November 2005, and that this incident was said to have occurred some fifteen months after he was first warned that his life was in danger. The Tribunal found that the “indirect threats and the rumour campaign” appeared to, nonetheless, have had the effect of undermining the applicant’s business.  It accepted his evidence that his business was “less profitable” than it was prior to the May 2004 elections.

7. However, and with reference to s.91R of the Act, the Tribunal was not satisfied that the harm was serious enough to constitute persecution (CB 72.3 to CB 72.6). Further, the Tribunal found that the “events” demonstrated that the threats made against the applicant were “empty”, and that he remained in the Philippines for more than two years after the threats and harassment started, during which time he resided in his usual place of residence, and continued in his usual place of employment. The Tribunal was also of the view that the applicant’s own conduct “further indicates the lack of seriousness of the threats” (CB 72.7 to CB 72.10).

8. While the Tribunal accepted that some economic damage was done to the applicant husband’s business, it was not satisfied that the damage was “serious harm” constituting persecution for the purposes of s.91R(2) of the Act. In all the circumstances, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution at the time of its decision, nor in the reasonably foreseeable future (CB 73.4 and CB 73.6).

9. The Tribunal further found that even if it were the case that the applicant did face serious harm in his usual place of residence, it was satisfied that it would be reasonable for him to safely relocate to another part of the Philippines, given that the interests of his enemies were “local” (CB 73.9).

10. In all, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations and, as no specific Convention related claims were made by, or on behalf of, the applicant wife, and as her application depended on the outcome of her husband’s application, it could not be satisfied that either of the applicants met the relevant criteria for a protection visa. On that basis, it affirmed the decision under review.

Before the Court

1. The applicants have filed two affidavits in this matter.  Both are affidavits of the applicant.  One was filed on 13 March 2007, with the originating application, which attaches the Tribunal decision record and asserts, without any details, that the Tribunal “breached the rules of natural justice and procedural fairness when making its decision.”  The other was filed on 18 June 2007 and asserts that the Tribunal “made jurisdictional error, error of law and procedural fairness.”

2. In the amended application for review, the applicants’ assert one ground:

   “1. The Refugee Review Tribunal did not follow the law of natural justice and procedural fairness when make its decision to dismiss the applicants review application and doing so made jurisdictional error and error of law.”

[Errors in original]

1. A long list of particulars follow (under the heading of “Particulars” (a) to (i), and under the heading of “Convention Reason” (j) to (v)).

2. At the hearing of this matter, the applicant appeared in person. The applicant wife did not appear.  The applicant husband stated that he would speak on her behalf, noting that she had not made any claims to protection in her own right. The applicant husband spoke English and confirmed that he did not require the services of any interpreter.

3. The applicant husband confirmed that he was pressing the matters set out in his amended application, and also said that he sought to rely on a transcript of the hearing before the Tribunal, which he said he had filed some time ago at the Court registry. There was no record of any such filing apparent from the Court’s file, and no transcript was contained on the Court’s file. The applicant (and his brother, who accompanied him to Court) insisted that a transcript had been filed, but were unable to produce a “stamped” copy.  Nor had the respondent been served with any such document.  I adjourned proceedings briefly to allow the applicant to make enquiries of his brother’s wife, who he said was at their place of residence where he had left the “stamped” copy of what had been filed in Court.  No stamped copy of the transcript was available.

4. In any event, the applicants were granted leave to file in Court a copy of what purported to be a transcript of the hearing before the Tribunal.

5. While noting the difficulties in admitting the transcript into evidence before the Court (there was no affidavit seeking to put the document before the Court in a formal sense, nor any evidence as to its provenance) and noting also that the Minister’s representative had no notice that the document was to be relied upon by the applicant, I nonetheless allowed the applicant to make his submissions and noted that I would rule on the admissibility of the document, if necessary, after having given the applicant this opportunity.

6. The applicant also advised the Court that in preparing for the hearing he had been assisted by a solicitor who was described as “a friend of a friend”. I note that no solicitor appears on the record representing the applicant.

7. The applicant read from a prepared statement in making his submissions to the Court. The submissions made four complaints (in addition or further to what was set out in the amended application):

   1)Despite telling him (at the hearing) that it could take into account information from other sources (such as human rights reports or media reports about the situation in the Philippines) the Tribunal did not do so and, therefore, it did not understand that the area where he suffered persecution was one of the “red spots” in the Philippines.

   2)Disputed the Tribunal’s reasoning that the harm that he feared was not “serious harm” or did not involve “economic hardship” based on, he said, the view of the Tribunal that he was not killed in the two years after the relevant mayoral election. He also complained, given that the Tribunal found him to be “honest,” that the Tribunal, before making its decision, should have contacted the people whose names he had provided to it, and should have made enquiries of them as to why he was not killed in that period.

   3)That in relation to the Tribunal’s “relocation” finding, the Tribunal did not understand (as it would have done had it referred to relevant media reports) that, in circumstances where a person is a political target in the Philippines, the “easiest way to get eliminated is to transfer to another location from where your political area is.”

   4)The Tribunal did not take into account that his brother had been in Australia for eighteen years, and had the applicant wanted to come to Australia, he could have done so earlier, when he was younger and his opportunity for doing so would have been “better”.

Consideration

1. Turning first to the amended application, the applicants broadly assert that the Tribunal did not follow the rules of natural justice and procedural fairness in making its decision.  (As also asserted in the applicant’s affidavit of 18 June 2007.)  I understood this ground was to be considered in light of the particulars.

2. Particular (a) makes reference to s.91R of the Act, without specifically identifying any error on the part of the Tribunal. To the extent that there is reference to some aspects of the applicant’s claims, it may be that the applicants seek to complain, in light of those aspects of the applicant’s claims, about the Tribunal’s finding that the applicant’s circumstances did not amount to “serious harm” for the purposes of s.91R, then such a complaint seeks impermissible merits review of this Court and would not succeed for that reason (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

3. Particulars (b), (c) and (d), again make reference to the merits of the applicant’s claims and assert that the Tribunal should have found that his circumstances amounted to persecution for the purposes of the Refugees Convention. The application makes reference to the “second element of the Convention definition” and asserts that the applicant’s circumstances met this definition. It would appear, however, granted what follows at (c) and (d), that the applicant’s reference is really to what is set out in the Tribunal’s decision record (at CB 68.4):

   “There are four key elements to the Convention definition …

   Second, an applicant must fear persecution …”

4. If the applicants are seeking to complain that the Tribunal should have relied on the Convention definition of “refugee”, without reference to s.91R of the Act, then such a complaint cannot succeed. Article 1A(2) of the Convention Relating to the Status of Refugees 1951 makes reference, amongst other things, to the definition of “refugee”, including:

   “… owing to well-founded fear of being persecuted for reasons of …”

5. However, for the purposes of the Tribunal determining whether an applicant has a well-founded fear of persecution, it is not open to the Tribunal to ignore relevant requirements of Australian law. In this regard, s.91R of the Act qualifies the term “persecution” as set out in Article 1A(2). Section 91R provides that for the purposes of the Act, and Regulations (that is, relevantly for the purpose of determining whether the applicants must be granted a protection visa), Article 1A(2) does not apply in relation to persecution for any of the Convention reasons, unless the reason is the essential and significant reason or, relevantly, the persecution involves “serious harm” to the applicant.

6. To the extent, therefore, that the applicants’ complaint may be understood as a complaint that the Tribunal was in error in finding that these circumstances did not amount to serious harm for the purposes of applying the term “persecution” to those circumstances, then the applicants’ complaint does not rise above a challenge to the factual findings made by the Tribunal. While the Tribunal generally accepted the applicant’s account of the events occurring between the 2004 mayoral election to his departure from the Philippines, it did not accept that the applicant was the target of an attempted shooting, or that the “economic damage” inflicted on his business constituted “serious harm” within the meaning of s.91R(2).

7. I cannot see that the Tribunal misunderstood what is set out at s.91R(1) and (2), or was otherwise in error in the way that it applied it to the applicants’ circumstances. The Tribunal set out its understanding (at CB 68) in the usual, unexceptional terms and, importantly, in applying these provisions, it understood that the definition of “persecution”, for the purposes of the Act did not “exhaustively” include only the matters set out at s.91R. The Tribunal properly understood that what was set out at that part of the Act were “[e]xamples of persecutory conduct” (see CB 72.6).

8. In my view, having properly understood the qualification set out in the Act to the concept of “persecution” derived from the Convention, the Tribunal properly applied this understanding, and made findings which were open to it on the material before it, and for which it gave reasons. I cannot discern jurisdictional error in this regard in the Tribunal’s decision.

9. Particular (e) complains that the Tribunal did not rely on independent country reports or evidence as to the persecution against political opponents of the current regime in the Philippines. To the extent that the reference to the “current regime of Ms Gloria” makes reference to the national regime in the Philippines at the relevant time, then it may be that the applicant is seeking to argue now, before this Court, that the candidate that he supported in the mayoral elections was of the political party “of the deposed President Estrada” (see CB 9.1), and that the subsequent victory of the political opponent of this candidate, presumably, was from the party of “Ms Gloria”. That is, that the Tribunal should have found that the harm that the applicant feared had a national, not only a local, dimension.

1. The Tribunal plainly understood the applicant’s claim that the mayoral candidate that he supported was from the party of the former president (see CB 69.5). Nonetheless, the Tribunal found that: “[b]ased on the applicant’s evidence I am satisfied that the interests of his enemies are local” (CB 73.9). This was a finding that was open to the Tribunal to make on the evidence before it and, importantly, was based on the applicant’s own evidence. Such findings of fact are for the Tribunal to make within the exercise of its jurisdiction (ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”)). In these circumstances, if there was independent country information about purported persecution of opponents of the national regime (a claim not put to the Tribunal nor arising from the relevant circumstances as put by the applicant), then I cannot see that the Tribunal was under any obligation to investigate or have regard to such information.

2. Beyond the mere reference to the mayoral candidate belonging to a particular political party of the former deposed President, there is nothing in the material that the applicant put before the Court, nor his evidence, to give rise to any national aspect to the applicant’s fears such as to oblige the Tribunal to make the enquiries that the applicant now asserts that it should have done. I cannot see that the applicant’s circumstances (as presented by the applicant himself) gave rise to any obligation on the Tribunal to undertake any such consideration.

3. Second, if there was such material that would support any such argument (which the applicant did not make before the Tribunal, and which the circumstances did not suggest gave rise to any such issue), then it was a matter for the applicants to put such material, and claims, before the Tribunal, such as to oblige it to consider this issue.

4. Ultimately, as the first respondent submits, it was for the applicant to place such material as was necessary in order to persuade the Tribunal of his claims (see, in particular, VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [27], WAGJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] – [25], and W389/01A v Minister for Immigration [2002] FCAFC 432; (2002) 125 FCR 407 at [74] – [78]). Nor is the Tribunal obliged to deal with a claim not made.

5. The Tribunal considered all aspects of the applicant’s claims and simply could not be satisfied that the harm feared was such as to constitute persecution for the purposes of the Act. The Tribunal’s conclusion in this regard was based on the findings which were plainly open to the Tribunal on the material before it and, in circumstances where I cannot see any obligation for the Tribunal to have made any further enquiries, this complaint does not succeed.

6. In particular (f) the applicant complains that the Tribunal did not provide him with an opportunity to comment on adverse information contained in the independent country information relied on by the Tribunal “that was credible, relevant and significant to the Tribunal’s decision.”

7. It appears (with reference to what is quoted above) that the solicitor, whom the applicant husband said assisted him in preparing documents to put before this Court (through a friend) sought to rely on common law principles of procedural fairness in this regard. I note that this is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act, the exhaustive statement of the natural justice hearing rule, absent bias (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).

8. In this regard, therefore, relevantly the Tribunal’s obligation to afford the applicant an opportunity of commenting on information is that found in s.424A of the Act.

9. The applicant does not identify what country information the Tribunal relied on, and should have been put to him for comment. This is not surprising because, in the circumstances of this case, I cannot see that there is any independent country information that “would be the reason or a part of the reason for affirming the decision that is under review” (see s.424A(1) and SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [17]). The information that would be the reason for affirming the decision under review (noting the two independent bases of the Tribunal’s decision, namely, that based on the applicant’s own evidence, his claims did not amount to serious harm for the purposes of s.91R of the Act and, secondly, in any event, the applicant husband could safely relocate to another part of the Philippines) was based on evidence provided by the applicant himself (and as such, falls within the exception contained in s.424A(3)(b) from the obligation contained in s.424A(1)) and did not rely on any independent country information.

10. In addition, the first respondent submits that, to the extent that it may be said that the Tribunal relied on country information, which appeared in the delegate’s decision (with reference to CB 41 to CB 42), that information was not specific to the applicant and therefore, in any event, would fall within the exception in s.424A(3)(a) of the Act.

    
    

    If such information “would” have been part of the reason for its decision, then that information would plainly fall within that exception. 

11. In particulars (g), (h), and (i), the applicant complains that the Tribunal’s “comment” that the applicant remained in the Philippines for two years “after the persecution happened” is “absurd”, in the applicant’s view, given the applicant’s situation, and is inconsistent with “the situation” in the Philippines. The applicant, therefore, appears to take issue with the Tribunal’s finding that the threats made against him following the mayoral election in May 2004 were “empty” because the applicant remained in the Philippines for more than two years after the threats and harassment were said to have started (see CB 72.8).

12. To the extent that particulars (g) and (h) appear to assert that the Tribunal made a finding that the applicant did not face persecution in the Philippines because he took two years to leave the country, such an assertion misrepresents the actual reasoning of the Tribunal.

13. The Tribunal accepted the applicant’s account of the events leading up to his departure from the Philippines (CB 71.9). With s.91R in mind, however, the Tribunal did not accept that the “conduct complained of by the applicant in the past constituted persecution” (CB 72.7). The Tribunal was not satisfied that, in the circumstances of the applicant’s case, the threats of the harm levelled against him were “sufficiently serious as to be characterised as persecution.” Again, this was in the context of what is set out in s.91R. It was in this context that the Tribunal found that in any event “the threats were empty.” It based its reasoning on the fact that the applicant remained in the Philippines for more than two years after the threats and harassment were said to have started, and that he continued to reside in his usual place of residence and continued to work in his usual place of employment. The Tribunal found that there was “no escalation in the severity of the conduct levelled against the applicant” and that there was nothing “to indicate that the threats would actually be carried out.” In focusing on the seriousness of the harm (as it was required to do by s.91R), the Tribunal also found that the applicant’s own conduct “further indicates the lack of seriousness of the threats” (CB 72.9).

14. Similarly, in relation to the “economic harm” that may constitute persecution (with reference to s.91R(2)), the Tribunal found that it could not be satisfied that the economic damage done to the applicant’s business (accepting that some damage had been done) was “damage … serious harm constituting persecution” (CB 73.2). In this context, the Tribunal found that the applicant’s own evidence was that the business “survives and still supports his partner, and provides some income to the applicant.”

15. These findings were all open to the Tribunal on the material before it. To the extent, therefore, that the applicant seeks to challenge the Tribunal’s findings, and the analysis underpinning those findings, I cannot see that the applicant’s complaint in these circumstances rises above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ and per Kirby J at 291).

16. Plainly, the findings of fact made by the Tribunal in this regard are findings properly made within the exercise of its jurisdiction as the relevant finder of fact. These complaints also do not succeed.

17. Particular (j) asserts that:

    “The Tribunal did not rely upon any Human Rights Reports and US Country Information Reports and DFAT Reports in respect of indiscriminate persecution against PNP leaders and it allies in the Philippine.”

[Errors in original]

1. I understood the applicant’s reference to “PNP” to be a reference to the “PMP”, the political party of the former and deposed “President Estrada”, which was the party of the mayoral candidate that he supported in the 2004 elections (see CB 9).

2. The applicant appears to assert a claim now before the Court that was not made before the Tribunal, nor a claim that could be said to arise from the circumstances put before the Tribunal. The applicant never claimed to be a PMP leader, nor a political party ally of this leadership. The applicant’s claim needs to be seen in the context in which it was put forward. That is, that in a local mayoral election, he supported a particular candidate and that, following the unsuccessful campaign by this candidate, supporters of the rival and successful candidate who were the applicant’s business competitors, harassed the applicant and affected his business.

3. But even taking the applicant’s complaint at its face value, I cannot see that there was any obligation on the Tribunal to rely on any of the reports to which the applicant generally refers. First, there is nothing in the Court book to show that the applicant referred the Tribunal to any independent country reports as set out in particular (j) of his application, nor that he asked the Tribunal to refer to any such reports. The transcript of the hearing, provided by the applicant himself, also shows that no such referral, or request for the Tribunal to look at any independent country reports, was made by the applicant.

4. To the extent that the complaint is that the Tribunal should have made enquiries of these independent reports, and failed to do so, then as already set out above, there is no obligation on the Tribunal to have made any such enquiries in the circumstances of this case. Ultimately, if the applicant thought that such material would assist his claims, then it was always open to him to have put such information before the Tribunal.

5. The applicant also complains at particular (j) that:

   “The Tribunal took into account all of the minimum negative perspectives of my interview and evidences and avoid maximum positives aspects which gone to favouring my case.”

6. To the extent that this may imply that the Tribunal acted with bias (or even that the well-informed lay observer would reasonably apprehend bias), or acted in bad faith, then there is nothing in the material before the Court to show that any such complaints can be made out. Nor, it must be said, has the applicant provided any evidence in discharge of the heavy onus that an applicant bears in proving bias (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], see also Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, [2001] HCA 17at [35] and [72]).

7. At particular (k) the applicant complains that the Tribunal took all of the “negative information” to reject his application and put “his [her] personal idea” to the application and did not refer to any independent evidence and information “against my claim.” The applicant asserts that the Tribunal’s “personal idea to reject” his application is an error of law.

8. To the extent that this may assert again that the Tribunal failed to act impartially (bias, apprehension of bias or bad faith), then this complaint fails for identical reasons as set out in relation to particular (j) above.

9. The complaint also appears to misunderstand the nature of the task required of the Tribunal. The relevant legislative scheme (in particular, ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction that, in effect, the applicant meets the definition of “refugee” (with regard to Article 1A(2)of the Convention and s.91R of the Act), and if it reaches that level of satisfaction, then a protection visa must be granted to the applicant (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 at [15] to [16] and NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5]).

10. The Tribunal is required to consider all of an applicant’s claims and each aspect of the claims (Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79], VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]-[47]). In discharging its function as the “decision-maker par excellence” (see Durairajasingham per McHugh J. at [67]), the Tribunal is required to evaluate the applicant’s evidence and other information put before it, and to then reach (or not reach) the requisite level of satisfaction.

11. That the Tribunal took a particular view of the applicant’s evidence and the information he gave, does not, of itself, reveal any error of law. The evaluation and findings made by the Tribunal were open to it on the material before it. Further, the Tribunal gave cogent reasons. In these circumstances, no error of law is revealed.

12. Nor is the Tribunal obliged to “disprove” an applicant’s claims. As set out above, the Tribunal is required to consider the claims, and to reach, or not reach, the requisite level of satisfaction that the applicant is a person to whom Australia owes protection obligations, by virtue of their meeting the Convention definition of “refugee” (as qualified by the Act). It is for an applicant to make out their case and for the Tribunal to evaluate that case, in light of what is before it. This complaint also does not succeed.

13. Particular (l) asserts that the Tribunal was in error in failing to consider the issue of the effectiveness of state protection, given that in the applicant’s circumstances, the fear of harm was from a “no [sic] -state actor.” Particular (m) complains that the Tribunal misunderstood the relevant law, and that it therefore made an error of law, in stating that there needs to be a Convention reason in order for it to determine that the applicant is a refugee.  That it considered the issue of harm in that light, instead of assessing whether there was adequate state protection available to the applicant (presumably, because the fear of harm was said to come from a non-state actor or party). Particular (n) reinforces this complaint in that it asserts that: “… the applicant did not have to address the Convention ground when the issue was effective State protection.”

14. In reviewing a decision to refuse an applicant a protection visa, the Tribunal is required to determine whether it can be satisfied that Australia owes protection obligations under the Refugees Convention to the applicant (s.36(2) of the Act). In essence, and generally (and certainly, specifically, in the applicant’s case) this requires the Tribunal to have regard to Article 1A(2) of the Convention, which sets out, in effect, the definition of “refugee.” That is, any 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 …”

15. Plainly, the Tribunal is required to consider whether the applicant has a well-founded fear of being persecuted for any one, or more, of the Convention reasons. In the current case, the Tribunal properly understood that the applicant claimed to fear harm because of his support for a particular political mayoral candidate. Any plain reading of the Tribunal’s decision record reveals that the Tribunal was unable to be satisfied that the harm which the applicant claimed to have suffered (and which, to a large measure, the Tribunal accepted) amounted to “serious harm” for the purposes of the Act. As it was not so satisfied, then the fear said to have been experienced by the applicant did not amount to “persecution” as that term is understood with reference to s.91R.

16. Therefore, although not required to do so, but given that the Tribunal accepted that the applicant had suffered some level of harm (although not amounting to persecution), and that this had been directed to the applicant from non-state actors, the Tribunal did go on to consider, in those circumstances, whether the applicant could safely and reasonably relocate to another part of the Philippines and found that he could do so. It was in this context that the Tribunal did consider whether effective state protection was available locally to the applicant and found:

    “I am satisfied that, because of political corruption, the applicant would not be able to obtain effective protection against the harm he fears from the local authorities” (CB 72.2)

17. It is plainly to be understood that the harm which the Tribunal accepted had occurred to the applicant, and in respect of which he would be unable to find effective state protection locally, was not “serious harm” for the purposes of the Convention and the Act.

18. To the extent, therefore, that the applicant asserts that whenever there is harm feared from a non-state actor, the Tribunal should not address the relevant Convention grounds, but should immediately go on to consider the issue of adequate state protection, this assertion misrepresents the obligation imposed on the Tribunal. Particular (l) in that regard, is not made out.

19. To the extent also that particular (m) asserts error of law on the part of the Tribunal, because the Tribunal said it required a Convention reason for the alleged persecution, this is, as the Minister correctly submits in my view, also misconceived and fails to appreciate the role of the Tribunal in determining whether the applicant satisfies the relevant criterion for a protection visa set out in s.36(2) of the Act and, with reference to the definition of “refugee” under Article 1A(2) of the Refugees Convention, I also note in this connection, that given that the Tribunal found that the harm feared by the applicant (harm that the Tribunal, to some extent, accepted had occurred) was not “serious harm”, and therefore the applicant did not face a real risk of harm and did not have a well-founded fear of persecution, it was plainly unnecessary for the Tribunal to then go on and consider separately or consequently whether these claims of harm had a Convention related nexus or reason.

20. At particular (n) the applicant repeats the complaint made at (l) and (m) and this complaint therefore does not succeed for the same reasons. 

1. At particular (o) the applicant asserts that the Tribunal failed to take into account “relevant considerations” and these were said to be “the applicant’s class” and effective State protection. In relation to effective State protection, this complaint fails for reasons already referred to above.  (See also [74]ff below.)

2. It is not clear to what the applicant refers as his “class.” The applicant makes reference at particular (o) that this issue was “discussed in previous section,” but even with reference to the previous section (which I took to be a reference to particulars (a) to (i)), I cannot see any reference to “class”.  Nor can I see in the applicant’s claims, as set out in various parts of the Court Book, that the applicant made any reference to a “class of person” or even that he was a member of a particular social group.  Nor that his circumstances give rise to such a claim.

3. Given the applicant’s reference in particular (r) to Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 (“Khawar”) (and what is said at particular (q)), I understand the applicant’s complaint to be that the Tribunal was obliged to consider the issue of effective state protection, in that his circumstances were similar to those before the High Court in Khawar.

4. I understood the various references in the application that assert that “harm” need not be directly Convention related in order for it to satisfy the requirements of Article 1A(2) to be an assertion that even if the harm feared is not Convention related, then there can still be a well-founded fear of persecution if there is a reasonable chance that the state authorities would not provide the applicant with non-discriminatory state protection. That is, that the state will not protect, or is unable to protect, the applicant, for a Convention reason. For example, the membership of a particular social group is, in the context that I comprehend (seeking to put the most advantageous interpretation for the applicant, on what is asserted in the application), that the harm feared was from non-state agents, and as in Khawar, the state either tolerates, or condones, or is unable to provide protection to the applicant in the Philippines from the harm.

5. What the applicant’s assertions fail to comprehend, is that in Khawar, the High Court linked the adequacy, or otherwise, of effective State protection, being withheld for a Convention reason, albeit in circumstances where the harm feared that was from non-state actors. Mrs Khawar was subjected to domestic violence by her husband and his family. She was a woman in Pakistan. The issue, therefore, was whether women in a particular social group, being women in Pakistan without protection from male relatives, would be unable to obtain protection from the state (the police and other authorities) because the state tolerated, or condoned, the harm inflicted on her because of her membership of a particular social group.

6. As I understand it, in Khawar, the High Court said that the Refugees Convention test may be satisfied where the relevant statutory instrumentalities (including police) selectively or discriminatorily withhold protection (against non-state actors) for a Convention reason from serious harm that is itself not Convention-related.

7. While I understand (with respect) there to be some difference in approach to this issue in the various judgments, what is still required is that the Tribunal must be satisfied that there is a Convention nexus.

   Per Gleeson CJ at [31]:

   “… then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state …”

   Per McHugh and Gummor JJ at [84]:

   “It should, in our view, be accepted that, whilst malign intention on the part of the State agents is not required, it must be possible to say in a given case that the reason for the persecution is to be found in the singling out of one or more of the five attributes expressed in the Convention definition, namely race, religion, nationality, the holding of a political opinion or membership of a particular social group. If the reason for the systemic failure of enforcement of the criminal law lay in the shortage of resources by law enforcement authorities, that, if it can be shown with sufficient cogency, would be a different matter to the selective and discriminatory treatment relied upon here.”

   Per Kirby J at [120], where reference is made to Refugee Appeal No 71427/99 (unreported; New Zealand Refugee Status Appeals Authority; 16 August 2000) at [112]:

   “… the nexus between the Convention reason and the persecution can be provided either by the serious harm limb or by the failure of the state protection limb …”

8. Irrespective of how “persecution” and “State protection” are to be classified, in circumstances such as found in Khawar, where the harm from the non-state, against individuals (Mrs Khawar’s husband and his family) was essentially criminal in nature, and not related to any of the Convention grounds, nonetheless, the important issue for the Tribunal is whether in all these circumstances, the conduct of the state (inaction or withholding protection) was selective and discriminatory such that protection can be said to have been withheld for a Convention reason. In that case, members of a particular social group in Pakistan.

9. The applicant’s circumstances are not comparable to that situation. While it is true that the applicant claimed to fear harm from non-state agents, as in the case of Khawar, there is first, nothing in the applicant’s circumstances to give rise to an obligation on the Tribunal to consider the applicant as a member of a particular social group. Nor, second, on what was before the Tribunal, could it be said that the Philippine authorities would tolerate, or condone, or be unable to assist the applicant in relation to the harm claimed to have been meted out by the non-state agents. That is, his business rivals who were allied to the successful mayoral candidate.

10. The applicant’s emphasises and relies on the similarity to the circumstances in Khawar as to the claimed fear of harm being from non-state agents. But he does not go to, or point to, any circumstances relevant to his case, that go to the issue of whether the conduct of the state authorities was such as to withhold protection and, in doing so, whether it was selective and discriminatory, such that the withholding of protection was for a Convention reason. For example, as in Khawar, membership of a particular social group.

11. The applicant made no claim that he was refused protection by the police. (the relevant state instrumentality to be relied on, at least, initially, where the harm was said to be minimal in nature.) Importantly, the applicant also confirmed at the hearing before the Tribunal (see CB 71.3 and Transcript page 19: “[Tribunal member]: …Did you report the problems to the police? THE APPLICANT: No, member.”) that he had not approached the police to ask for their assistance or protection.

12. Further and ultimately, the selective and discriminatory withholding of state protection for a Convention reason must be from harm that is “serious harm” (s.91R(1)(b) of the Act). While the concept of “persecution” must involve “systematic and discriminatory conduct” (s.91R(1)(c)), it must also involve “serious harm”).

13. In this regard, the Tribunal found that the harm feared by the applicant was not “sufficiently serious as to be characterised as persecution” (CB 73.4). In these circumstances, the Tribunal was not obliged to consider the issue of state protection, either in the Khawar sense or otherwise.

14. As already set out above, the Tribunal found that the harm feared by the applicant was not serious harm for the purposes of Article 1A(2) of the Convention, and in relation to the issue of “persecution.”

15. In particulars (p), (s) and summarised in particular (v), the applicant asserts that the Tribunal did not consider what was said in “Minister for Immigration and Multicultural Affairs v Respondents 15/2003 [2004] HCA 18; at [28]” (I understood this to be a reference to Minister for Immigration & Multicultural Affairs v Respondents 152/2003 [2004] HCA 18 (“Respondents 152/2003”)  that where a state does not provide its citizen with a level of state protection required by international standards, the unwillingness to seek protection of the government would be justified.

16. See Respondents 152/2003 (per Gleeson CJ, Hayne and Heydon JJ) at [28]:

    “A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection. For example, an Australian court that issues an apprehended violence order is rarely, if ever, in a position to guarantee its effectiveness. A person who obtains such an order may yet have a well-founded fear that the order will be disobeyed. Paradoxically, fear of certain kinds of harm from other citizens can only be removed completely in a highly repressive society, and then it is likely to be replaced by fear of harm from the state.”

17. I understand the complaint to be that with reference to Respondents 152/2003 at [28] the Tribunal failed to consider that the applicant was justified in being unwilling to seek state protection because the Philippines does not provide a level of state protection required by international standards.

18. It should be noted that in Respondents 152/2003 the High Court said that the relevant state is not required to guarantee the safety of its citizens from harm by non-state actors (See Respondents 152/2007  at [26] per Gleeson CJ, Hayne and Heydon JJ: “No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence …” See also at [117] per Kirby J: “The Convention does not require or imply the elimination of all risks of harm … It posits a reasonable level of protection, not a perfect one …”)

19. The respondent’s written submissions at [26] assert, in answer to the applicant’s complaint at particular (p), that Respondents 152/2003 established the contrary to what the applicant asserts. I have some difficulty accepting this. In my view, while the High Court said that it was not “necessary in this case to consider what those standards might require or how they would be ascertained …” (at [28]), it is open (with respect) to understand this as nonetheless supporting the proposition that “international standards” may be used as a guide to what may be adequate levels of protection. (See also at [27] and [29]).

20. But I do not understand this to mean that the mere failure of the Tribunal to consider whether the level of state protection (in the current case – afforded by the Philippines authorities) met international standards, in circumstances where the failure to do so, meant the applicant was justified in being unwilling to approach them for protection.

21. In MZRAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1261, per Heerey J, the Court said at [26]:

    “The ratio decidendi of S152/2003 does not include the proposition that, in considering a claimed fear of persecution by non-state agents where the issue of effective protection arises, there will be jurisdictional error unless the Tribunal identifies, and specifies the content of, ‘international standards’ of protection and matches the law enforcement machinery of the state in question against those standards.”

22. See also, in this regard, SZBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 264 on appeal from SZBBE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 753.

23. Whatever the situation in this regard, however, what the applicant’s “submissions” fail to comprehend is that it was not necessary in the circumstances of his case for the Tribunal to consider whether (let alone what level of) state protection was required. As referred to above, the Tribunal was not satisfied that the fear of harm experienced by the applicant was sufficiently serious to constitute persecution, such that he did not have a real risk of harm and therefore did not have a well-founded fear of persecution. In these circumstances it was not necessary for the Tribunal to consider the issue of state protection. This issue did not arise.

24. That the Tribunal found that effective protection was not available from “local” authorities must be seen in the context of the finding that the applicant did not face “serious harm” locally, but even if it could be said (“even if it were the case,” at CB 73.7) that he did face such harm locally he could reasonably and safely relocate to another part of the Philippines. In these circumstances, the applicant’s complaint does not succeed.

25. Particular (q) asserts that the applicant fears persecution from private individuals, not the government of the Philippines, and that because the individuals are allied to the government, this amounts to persecution.

26. First, it is clear that the Tribunal accepted that the claimed fear of harm was from private individuals. I cannot see that the Tribunal misunderstood the applicant’s claims to be that he feared harm from the Philippines government, as it appears to be asserted. Second, to the extend that particular (q) also seeks to assert that the Tribunal should have found that the individuals who he claims harmed him were “allies” of the government, such an assertion seeks impermissible merits review, and does not succeed for that reason.

27. I note, in any event, that the Tribunal accepted the applicant’s claim that the harm he feared was from non-state individuals, and accepted that the applicant would not be able to obtain effective protection against this harm (which was not “serious harm” in any event) from the local authorities. In this regard, the Tribunal found that the applicant could safely and reasonably locate to another part of the Philippines and would thereby avoid that the harm (which it found did not amount to persecution) in his local area.

28. At particular (t) the applicant “submits” that the Tribunal misdirected itself as to whether the persecution the applicant feared was for a Convention reason. Again, this misunderstands that even Khawar, the case on which the applicant seeks to base his argument that the issue of the failure of state protection was said to be in circumstances where an applicant fearing harm from non-state actors, was denied state protection for a Convention reason.

29. Further, to the extent that particular (t) is directed to the issues raised by particulars (l), (m), and (n), then it does not assist the applicant for the reasons already set out above.

30. Particular (u) again relies on Khawar and Respondents 152/2003 to assert that the Tribunal fell into jurisdictional error because it asked whether the persecution feared had a Convention reason and failed to ask whether there was State protection available. This particular does not assist the applicants for the reasons already set out above (see [76] to [85]).

31. At particular (v) the applicant summarises the complaints made above and does not add anything further.

Submissions at the Court Hearing

1. At the hearing before the Court, the applicant complained in submissions that the Tribunal did not take into account information from other sources. I understood the applicant’s complaint to be that at the hearing before the Tribunal, the Tribunal told him that it could take into account information from other sources, such as human rights or media reports about the situation in the Philippines and that the Tribunal did not do this. Had the Tribunal done so, it would have discovered information to support his assertion that the areas of claimed persecution are among the “red spots” in the Philippines in “terms of politics.”

2. I understood there to be two elements to the applicant’s complaint. First, that the Tribunal should have had regard to other human rights reports or media reports. This appears to be a restatement of the applicant’s complaint at particulars (e) and (j). Such a complaint does not succeed for the reasons set out above (see [54] to [55]).

3. The second element is that the Tribunal misled the applicant into thinking that it would look at such reports. The applicant referred the Court to page 3 of the transcript of the Tribunal hearing that he had provided, where the Tribunal said: “... I can also take into account information from other sources such as human rights reports or media reports about the situation in the Philippines.”

4. On what is contained in the transcript (noting that this is the transcript provided by the applicant himself), I cannot see that the Tribunal misled the applicant into believing that it would look at other independent reports.

5. The part of the transcript, to which the applicant referred, is part of the introduction to the hearing where the Tribunal set out for the applicant the process by which the hearing was to be conducted (see transcript page 2). It then continued (see transcript page 2.10 to transcript page 3.3):

   “… Now, the first thing that you need to understand is that this Tribunal is not part of the Department of Immigration, it’s a completely separate, independent body which basically means that the Department of Immigration and the Minister for Immigration don’t tell me how to decide individual cases that come before me. So I make up my own mind based on the information that give me here today, the information provided to the Department in your protection visa application, any other written material you’ve provided and I can also take into account information from other sources such as human rights reports or media reports about the situation in the Philippines.”

6. In context, any plain reading of that part of the transcript of the hearing reveals that the Tribunal squarely told the applicant that it would have regard to the evidence that the applicant gave it during the hearing, the information that it provided to the first respondent’s Department in his protection visa application, and any other written material that he may have provided. It was in this context that it notified the applicant of the possibility of taking into account information from other sources.

7. There is nothing further in the transcript provided by the applicant to show that the Tribunal went beyond raising the possibility of having regard to such information, which in context, would have been clearly understood, as after reviewing all the information that the applicant had provided, that the Tribunal may, or could (but not “would”) have regard to other information. This is in accordance with the relevant legal principle that the choice, and weight, to be given to such information is for the Tribunal.

8. The applicant’s second submission was to take issue with the Tribunal’s conclusion that the harm that he feared, and that the incidences of harm that he claimed had occurred to him, were not “serious harm” or “economic hardship.” He took issue with the Tribunal’s reasoning process in that because he had not been killed in the two years after the (2004) election, that the shooting incident was “somehow bogus” and that he could “still operate one part of [his] business.” The applicant complained that if the Tribunal found him to be honest, it should have made enquiries from what he described as the “resource people” to whom he had referred the Tribunal, and to make enquiries of them as to why the applicant had not been killed in the two years following the mayoral elections, and also to obtain information from them as to the difficulties encountered in his business.

9. In explaining this submission, the applicant directed the Court to what he said was the last page of the Tribunal’s decision, where he said the Tribunal stated that it did not need to call what he described as the “resource people” because they would only corroborate what he had said. The last page of the Tribunal’s decision record is at CB 74, and I could not see any such reference, nor at CB 73.

1. It would appear that that part of the decision record to which the applicant refers is that which is set out at CB 71.7:

   “I asked the applicant whether I would be able to speak to anyone who could confirm his claims. He said that he would provide me with contact details of the dealers and possibly Mr Ventorino. In a letter dated 12 January 2007 the applicant provided telephone numbers for his business partner, and a municipal councillor in San Ildeponso; he said that he had been unable to obtain contact details for Mr Ventorino, but was still trying to do so. The applicant stated that these people could confirm that his claims were true. However, given the basis on which I have decided this application, it was not necessary to contact them. As discussed below, I accepted those of the applicant’s claims which the witnesses could have corroborated.”

2. First, I should note that the reference to “these people” in the Philippines, who may have possibly corroborated the applicant’s claims, could not be said to be a notice from the applicant that he wanted the Tribunal to obtain oral evidence from the these persons for the purposes of s.426 of the Act. Such notice must be given in writing within seven days after being notified of an invitation to appear before the Tribunal to give evidence. The Tribunal gave notice of this by letter dated 21 November 2006 (CB 50). Even taking into account the relevant prescribed period, at the end of which the applicant is said to have received this notice, any such request at the hearing (if, indeed, that is how it could be viewed in the circumstances) was not given within seven days and, in any event, was not given in writing as required by s.426(2) of the Act.

3. Further, I did not see the Tribunal’s request (as set out above) as falling within the provisions of s.424 of the Act. Section 424 contemplates that any such invitation to seek additional information given by the Tribunal must be given by one of the methods specified in s.441A. The oral request by the Tribunal is not one such method.

4. In any event, it is clear, on any plain reading of the Tribunal’s analysis of the applicant’s claims, that the Tribunal essentially accepted the factual basis of the applicant’s claims. As the Tribunal itself explained its “reservations” were about “the interpretation of the events he has recounted” (see CB 71.8).

5. In relation to these “resource people” the applicant was unable to provide contact details for Mr Ventorino (see CB 71.7 and the applicant’s transcript of the hearing at pages 27 to 29 generally. Mr Ventorino was the unsuccessful mayoral candidate. In this respect, see CB 9.1).

6. As to the others, on the applicant’s version of the transcript of what occurred at the hearing, the Tribunal told the applicant that it may not need to speak to these people.

7. At page 28.5 the following is reported:

   “[Tribunal Member]: That would be great. Look, I don’t guarantee that I need to speak to them, it might be that I could ---

   THE APPLICANT: I understand.

   [Tribunal Member]:--- because I don't really have too much problem with the facts of what you're telling me, it’s just, you know, the legal interpretations on those facts so I may decide that there’s nothing really to be gained form [sic] talking to them.

   THE APPLICANT: Yes, member

   [Tribunal Member]: Okay.

   THE APPLICANT: But maybe a good resource persons is the candidate himself.

   [Tribunal Member]: Yes, that would be good. Look, if you could just write me a letter or send me a fax over the next week or so with the names of some people, just tell me who they are.

   THE APPLICANT: Yes member

   [Tribunal Member]: And their contact details, that would be great and then I’ll give some consideration to whether I want to go ahead and give them a call.

   THE APPLICANT: Yes, member.”

8. The applicant provided these details on 19 January 2007 (see CB 56).

9. Given what is set out above, I cannot see that there was any obligation on the Tribunal to proceed to contact the people for whom the applicant gave contact details. Further, the Tribunal did not mislead the applicant into thinking that it would contact those people. The transcript provided by the applicant makes it clear that the Tribunal told the applicant that it would only do so if it needed to do so and, indeed, told the applicant that it probably would not do so because it did not have any difficulty with the facts, as he had presented them, which these people would presumably corroborate.

10. Any plain reading of the Tribunal’s decision reveals that the applicant’s case did not turn on any issue of credibility regarding the facts as presented by the applicant himself. The issue turned, as the Tribunal plainly recorded, on the consideration of those facts in the Convention and legal context that the Tribunal was obliged to apply.

11. In this regard, the Tribunal found that the factual basis of the applicant’s claims, as presented by the applicant himself, were not such as to amount to “serious harm” or, in relation to his business, reveal such “economic harm” as they may be said to therefore constitute persecution, bearing in mind the requirements of s.91R. In these circumstances, I cannot see error in what the Tribunal has done. The Tribunal did not need to speak to any of these contacts because it accepted the relevant factual elements of the applicant’s claims and therefore did not need any confirmation or corroboration of them. This complaint is not made out.

12. The third submission, made by the applicant at the hearing before the Court, is that the Tribunal should have investigated, or made enquiries of, media reports that would show that in the Philippines it would be unsafe for “political targets” to relocate to another area of the Philippines because this would make it easier for them to be “eliminated”.

13. Again, as already set out above in this judgement, it is not for the Tribunal to search for, or seek out, media reports that may make out an applicant’s case for him. Or, indeed, to see whether there existed any other information beyond that which the applicant himself chooses to put before the Tribunal in the possibility, or hope, that such information may, or may not, support the applicant’s claim.

14. What the applicant’s submission seems to ignore is that the Tribunal did consider the applicant’s claims, and found them to be based on what the applicant himself had put to it, that the “interests of his enemies are local” (CB 73.9). It accepted that “a political assassin could find a person anywhere in the Philippines” (which appears to be an example of the very point above which the applicant now says the Tribunal should have made further independent enquiries). Ultimately, the Tribunal found that the applicant’s enemies, given the circumstances as presented by the applicant himself, would not seek to pursue the applicant beyond the local area in which he lived and worked, and it considered that for two years, following the mayoral election, the applicant continued to reside at his “usual place of residence and undertook essentially normal activities” (CB 73.9). 

15. Plainly, the Tribunal’s reasoning was that if the applicant’s enemies had sought to kill him, they had ample opportunity to do so in the two years available to them when the applicant was living and working openly in his local area. This finding was a finding open to the Tribunal on what was before it. In these circumstances it was not necessary, nor was it obliged, to seek out media reports that went to some (at best) general situation about violence in the Philippines. Ultimately, the applicant could have put this material to the Tribunal if he so wished. I cannot see error in the way it approached this issue. 

16. The fourth submission made by the applicant is that the Tribunal did not take into account that his brother had been in Australia for eighteen years, and had the applicant sought to have come to Australia, for any other reason, other than his fear of persecution, he would have had a “better opportunity” during that eighteen year period and he could have done so.

17. In regard to the material in the Court Book and the transcript of the hearing provided by the applicant, there is a reference to the applicant’s brother (at transcript page 21.5).  The applicant told the Tribunal that his brother had been in Australia for eighteen years and had been helping him to live in Australia. However, I cannot see that this exchange at the hearing could be construed now as a basis to assert (going, as it is put to the Court now, to the credibility of his claim to fear persecution) that he himself could have come to Australia any time in that eighteen year period but chose not to do so.

18. However, this point is made at transcript page 26.3, where the applicant is reported as saying:

    “With regards to the suggested relocation, I believe that in our country you cannot hide from a political enemy who uses – who uses a hired killer to get to you, to eliminate you. My brother has been here 18 years, have I – have I wanted to be here? I may – I may qualify for – for sponsorship or a skilled migrant visa but I stayed in the country, the Philippines. It is only now that my – because my life is in danger that I tried to get into this country. I have a six year old daughter and I have a 14 year old autistic child. There is no single day that – that they haven’t pictured in my mind and my wife’s mind.”

19. The task for the Tribunal was to consider whether the applicant had a well-founded fear of persecution for a Convention reason if he were to return to the Philippines. The applicant’s claims were that he had been harassed by those allied with a successful mayoral candidate whom he had opposed, by his support for another candidate, and that he had been harassed by these people, including, and involving, his business. He claimed that his life was in danger and that he would be killed by them if he were to return to the Philippines.

20. The Tribunal found that the applicant’s claims, in light of his evidence, were not such as to amount to “serious harm” for the purposes of s.91R of the Act. While it accepted much of the factual basis of the applicant’s claims, the Tribunal did not accept that the claimed threats to his life were other than “empty.” The Tribunal reasoned that the applicant resided for more than two years in his local area with little change to his normal routine and that, further, it was his own evidence that he only made “minor changes” to his normal working arrangements, and none to his living arrangements, which would indicate that he took the threats of harm seriously.

21. This finding was plainly open to the Tribunal to make in the light of the evidence before it. Further, the Tribunal found that to avoid such a level of harm, which it accepted had occurred to the applicant (but not “serious harm”), it was reasonable for the applicant to safely relocate to another part of the Philippines. The Tribunal found, in this regard, that his enemies were local and that, in any event, if they had sought to kill the applicant, they would have had ample opportunity over the two years that he remained in his local area. This finding was also open to the Tribunal in the circumstances of the evidence provided by the applicant himself. In this respect, the Tribunal addressed the question that it was jurisdictionally charged to address. That is, whether the applicant’s circumstances would give rise to a well-founded fear of persecution for a Convention reason.

22. That the applicant could have had the opportunity to come to Australia in any of the eighteen years in which his brother resided in Australia, and chose not to do so, does not assist the applicant now. It does not address the circumstances put by the applicant to the Tribunal that his difficulties began in May 2004 (not eighteen years ago) and does not explain, or assist to explain, why the applicant waited for two years before leaving the Philippines after his difficulties were said to have arisen.

23. Nor does the omission of the applicant’s evidence from the Tribunal’s decision record assist the applicant now.

24. First, I note that the Tribunal’s setting out of its decision record was obviously created pursuant to s.430 of the Act. In relation to the applicant’s evidence given at the hearing as quoted above, the Tribunal is not required in its decision record to refer to every piece of evidence before it. Section 430(1)(d) requires the Tribunal to prepare a statement that “refers the evidence or any other material on which the findings of fact were based.”

25. The Tribunal’s relevant findings relating to the claimed fear (of harm and for his life) was clearly based on the applicant’s own evidence of what he said had occurred during at the time of the mayoral elections in 2004 and over the two subsequent years. This evidence was plainly referred to by the Tribunal in its decision record.

26. In any event, the applicant’s claim that he could have come to Australia at any time during the preceding eighteen years was not an issue that could have assisted the applicant, given the Tribunal’s finding that the applicant’s claimed “threats were empty.”

27. The material relevant to the question as to whether the applicant had a well-founded fear of persecution for a Convention reason were the matters raised by the applicant himself in relation to what he said had occurred in the Philippines between 2004 and 2006. This complaint therefore does not assist the applicant.

28. In all, I cannot discern jurisdictional error in the Tribunal’s decision as it is said to arise from what is stated in the application, in submissions nor otherwise. For the applicants to succeed in the application to Court I would need to at least find such error. On this basis, the application is dismissed. 

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  27 June 2008