Tiquia v Minister for Immigration and Multicultural Affairs

[2001] FCA 490

FEDERAL COURT OF AUSTRALIA

Tiquia v Minister for Immigration & Multicultural Affairs [2001] FCA 490

MIGRATION – review of decision of Refugee Review Tribunal – refusal to grant protection visas – error of law – whether incorrect interpretation of applicable law – whether incorrect application of law to facts – whether applicants seeking merits review.

Migration Act 1958 (Cth): ss 36(2), 476(1)(e)
Migration Regulations 1994: Sch 2 subclass 866

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

EDUARDO TIQUIA & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 858 of 2000

GOLDBERG J
1 MAY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 858 of 2000

BETWEEN:

EDUARDO TIQUIA
First Applicant

ROSEMARIE TIQUIA
Second Applicant

EDUARDO TIQUIA JNR
Third Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

1 MAY 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.        The applicants pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 858 of 2000

BETWEEN:

EDUARDO TIQUIA
First Applicant

ROSEMARIE TIQUIA
Second Applicant

EDUARDO TIQUIA JNR
Third Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:	GOLDBERG J
DATE:	1 MAY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. The applicants have applied to the Court pursuant to Pt 8 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) on 22 September 2000 to affirm the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), on 18 February 2000 to refuse to grant subclass 866 (Protection) visas to the applicants. The applicants rely on one ground of review, that the Tribunal fell into error of law within s 476(1)(e) of the Act in that it failed to consider the failure of police authorities in the Philippines to afford protection to the applicants.

2. The applicants are husband, wife and son and are citizens of the Phillipines. They arrived in Australia on 24 May 1999 on a visitor’s visa subclass 676 which was valid until 24 June 1999. On 24 June 1999 they applied for subclass 866 (Protection) visas with the Department of Immigration and Multicultural Affairs pursuant to the Act. The criteria for the grant of a subclass 866 (Protection) visa are set out in Pt 866 of Sch 2 to the Migration Regulations 1994 and in s 36 of the Act.

3. A criterion for a protection visa is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951, as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”): s 36(2) of the Act. If an applicant is a member of a family unit in which one family member is a person to whom Australia has protection obligations and who satisfies the other criteria for the grant of a protection visa, the applicant may be granted a protection visa without satisfying this criteria, provided the applicant satisfies the remaining criteria. Article 1A(2) of the Convention defines a refugee as 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 to the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. The first applicant, (“Mr Tiquia”), claimed that he has a well‑founded fear of being persecuted by the New People’s Army (“NPA”) on return to the Philippines.  The second applicant, (“Mrs Tiquia”), and the third applicant, their son, were included in Mr Tiquia’s application as members of his family unit.

5. On 18 February 2000, a delegate of the Minister refused to grant the visas and on 17 March 2000 the applicants applied to the Tribunal for review of that decision.  On 22 September 2000, the Tribunal affirmed the decision of the delegate to refuse the visa applications as the Tribunal was not satisfied that Mr and Mrs Tiquia were persons to whom Australia has protection obligations under the Convention.  On 2 November 2000, the applicants applied to the Court for an order of review in respect of the Tribunal’s decision.

   The applicants’ claims

6. I summarise the applicants’ claims as they were set out by the Tribunal in its reasons for decision.  The Tribunal recited the claims which were taken from the visa application and the application to the Tribunal.  In his visa application, Mr Tiquia said he lived in Valenzuela, an area in Metropolitan Manila, from 3 May 1993 until he travelled to Australia.  Mr Tiquia claimed that members of the NPA had threatened to kill him and his family members because he had attempted to collect a debt from them.  Mr Tiquia had carried out electrical contracting work on ten houses for Mr Rodolfo Sales, and when he attempted to collect payment for this work from Mr Sales, he was informed that the NPA owned the houses and would pay him for the work.  Mr Tiquia was told to contact a person (“X”) and to keep X’s name secret.  When Mr Tiquia contacted X, X was evasive about the payment, so Mr Tiquia sent a letter of demand to X.

7. The NPA responded by sending Mr Tiquia a letter, telling him to go away or he would be killed by them.  The NPA also stole his car, stoned his house, stalked Mrs Tiquia and their son, and warned other people not to deal with him.  Mr Tiquia was informed by an “NPA collaborator” that his name was on a list of people to be liquidated.  When Mr Tiquia approached the police for assistance, the police advised him to hide and be careful and said that they could not protect themselves when the NPA targeted them.  In response to a question on the protection visa application form which asked whether Mr Tiquia had been in contact with relatives in the Philippines, Mr Tiquia stated that he had been in contact with them by letter and telephone and they had told him that unknown persons had been asking for him.

8. In his application to the Tribunal, Mr Tiquia claimed that he had reported the threats by the NPA to the police in Lucena, Quezon and they had told him to “keep quiet as the people [he] was dealing with are elements of the NPA”.  Mr Tiquia had sought assistance from “higher authorities in the province but to no avail”.  In late December 1997, before his car was stolen, Mr and Mrs Tiquia “noticed unfamiliar faces roaming around [their] neighbourhood.”  Mrs Tiquia had a nervous breakdown as a result of the lack of protection from the authorities.  Shortly before Christmas, the NPA sent Mr Tiquia a letter which stated that his “days are numbered” because he had approached the authorities.  Mr Tiquia approached the police again and was told that there was nothing they could do.  After complaining to the higher authorities, Mr Tiquia received threatening telephone calls and his house was stoned by “an unidentified group”.  The NPA said that it was the NPA who stoned his house and that the “worst is yet to come if [Mr Tiquia did not] keep his mouth shut”.

9. Mr Tiquia submitted several documents to the Tribunal which included the following:

   ·Statutory declaration by Efren Vergara and Emilie Vergara on 13 March 2000 in which they stated that they had stayed with Mr Tiquia in the Philippines in December 1998 and January 1999.  They said that Mr and Mrs Tiquia had told them about the NPA failing to pay for Mr Tiquia’s work on ten houses and his fear of being harmed by the NPA.

   ·A record of complaint by Mr Tiquia to Valenzuela City Police dated 29 December 1998 which stated that Mr Tiquia’s car had been stolen from outside his home on 28 December 1998, but did not refer to any evidence about who had stolen the car.  It stated that the complaint would be investigated further.

   ·A record of complaint by Mr Tiquia to Valenzuela City Police dated 13 March 1999 which stated that a “group of bystanders” had stoned his house on 12 March 1999, that the “alleged suspect immediately fled after the incident”, and that the complaint would be investigated further.

   ·An article from Philippine Daily Inquirer entitled “Red leaders behind Metro bombings Balweg slay fall” by C. Balanda dated 23 March 2000.  The article reported that military intelligence agents captured an NPA leader and an NPA member on suspicion of having committed numerous crimes, including terrorist bombings and murder.

   The Tribunal Hearing

10. At the hearing before the Tribunal, Mr Tiquia said that he received 50% of the total amount to be paid for the contracting services before the work commenced.  He completed the work in November 1998 and expected to be paid by Mr Sales.  Mr Sales referred the applicant to X to obtain the payment.  X told Mr Tiquia to come back for the money on three or four occasions.  Mr Tiquia said that the police told him that the people he had been dealing with were connected with the NPA.  He said that the police had learned that there was an NPA connection from an NPA informer and that they had identified X as an NPA member.  They told Mr Tiquia that he had to take legal action to recover his debt.  Mr Tiquia commenced legal action against X.

11. Mr Tiquia told the Tribunal that the NPA had approached his son, and had telephoned Mrs Tiquia and threatened to liquidate her and their son if he pursued his legal action.  He said that the NPA had approached his son and asked him where his father was and said that they would kill his father if he continued to take legal action.  The NPA had also approached Mr Tiquia’s clients and told them that he was not a good contractor and was always asking for money.

12. Mr Tiquia said that after he complained to the police about his house being stoned and the theft of his car, the police said that they would do their best to find the culprits.  When the Tribunal asked Mr Tiquia whether he had given the police evidence on which they could act, Mr Tiquia said that he had told the police that he thought that the NPA had been responsible for the crimes and that he had given the police descriptions and details for their investigations.  When it was put to the applicant that there was little detail in the police complaints as to who had stoned his house and stolen his car, Mr Tiquia responded that he thought the NPA had been responsible for the crimes and that after his house was stoned, the NPA had telephoned him and told him that they had done it.

13. The applicant told the Tribunal that he had not shown the police the threatening letter sent to him by the NPA before Christmas 1998 because he had a visitor at the time.  When asked why that would have prevented him from giving the police evidence to support his complaints, he responded that he was confused, that his wife had had a nervous breakdown and that he did not know where the letter was now.  He said that he believed that the police could not protect him because the police had said that they could not even protect themselves. 

14. The applicant said that when he referred to “higher authorities” he meant that he had approached the police chief in Velenzuela who had told him that the police were doing their best and that he should be careful.  When asked to provide further information about his statement in the protection visa application that unknown persons had been contacting his relatives about him, Mr Tiquia said that somebody had called his relatives one month ago and had asked where he was.  When it was put to him that it could have been a friend, Mr Tiquia responded that his relatives knew who his friends were. 

15. Mrs Tiquia gave evidence that she was frightened by the death threats made by the NPA, that she had a nervous breakdown when she received many death threats, and that she was taking Prozac and had been seeing a psychiatrist for five months.  Their son gave evidence that he was afraid to go out in the Philippines.  He told the Tribunal that no-one from the NPA had approached him.

    The Tribunal’s reasoning

16. The Tribunal set out correctly relevant principles of law which applied to the applicants’ claims and described the applicants’ claims and evidence in considerable detail in the terms to which I have referred. The Tribunal referred to country information from the US Department of State which described the NPA as follows:

    “The military wing of the Communist Party of the Philippines (CPP), the NPA is a Maoist group formed in December 1969 with the aim of overthrowing the government through protracted guerrilla warfare.  Although primarily a rural-based guerrilla group, the NPA has an active urban infrastructure to conduct terrorism and uses city-based assassination squads called sparrow units.

    Derives most of its funding from contributions of supporters and so-called revolutionary taxes extorted from local businesses.

    Activities

    The NPA primarily targets Philippine security forces, corrupt politicians, and drug traffickers.  Opposes any U.S. military presence in the Philippines and attacked U.S. military interests before the U.S. base closures in 1992.  Press reports in 1999 indicated that the NPA would target U.S. troops participating in joint military exercises under the Visiting Forces Agreement and US Embassy personnel.  (Patterns of Global Terrorism, 1999, April 2000)”

    The Tribunal accepted this description of the objectives and methods employed by the NPA as accurate.

17. The Tribunal found that Mr Tiquia was not a credible witness.  It said that his “evidence was inconsistent, implausible and unconvincing in significant respects” which it then discussed.

18. The Tribunal noted that the evidence which Mr Tiquia gave in his protection visa application was inconsistent with the evidence which Mr Tiquia gave at the hearing.  In his protection visa application, Mr Tiquia claimed that when he tried to collect his payment for the work from Mr Sales, he was told that the NPA owned the ten houses and the NPA would pay him for the work.  However, in his application to the Tribunal and at the hearing, Mr Tiquia said that he had learned from the police that he was dealing with people connected with the NPA .  In his protection visa application, Mr Tiquia also claimed that the NPA had stalked his wife and son.  At the hearing, Mr Tiquia said that the NPA had approached his son and asked him where his father was and told him that they would kill his father if he continued with his legal action.  However, at the hearing Mr and Mrs Tiquia’s son said that he had not been approached by the NPA.

19. The Tribunal found it implausible that the police would have said that they could not protect themselves from the NPA, that they advised him to institute legal proceedings against the NPA in relation to the recovery of the debt, and that Mr Tiquia or the police would believe that the applicant would recover a debt from the NPA by instituting legal action against one of its members or associates. 

20. The Tribunal said:

    “The applicant gave evidence that he lodged formal complaints with the police on 29 December 1998 and 13 March 1999 about the theft of his car and the stoning of his house, respectively; and that the police told him that they would do their best to find the culprits.

    Both complaints to the police state that the police would be investigating his complaints further.  The evidence that the police took the applicant’s complaints and marked them for further investigation is inconsistent with the applicant’s evidence that the police failed to respond, or could not respond, to his complaints.  Furthermore, it is inconsistent with the applicant’s assertion that the police were unable to protect him that he lodged a second complaint with them approximately four months after his complaint about the theft of his car.  Had the police been ineffective as claimed by the applicant, it is reasonable to expect that he would not have approached them for assistance on a second occasion within a relatively short period of time.  Had they been ineffective, it is also reasonable to expect that the applicant would have explained his failure to show the police the threatening letter from the NPA (at least in part) by reference to their ineffectiveness.”

21. The Tribunal considered that Mr Tiquia’s evidence that the police had recourse to an NPA informer and that they had identified X as an NPA member, was evidence that the police considered the NPA to be of concern and that they were collating evidence of criminal activities by the NPA.  The Tribunal considered such evidence to be inconsistent with Mr Tiquia’s assertion that the police were not providing adequate or effective protection in respect of illegal activities by the NPA. 

22. The Tribunal found it “implausible that the applicant [Mr Tiquia] would not have shown the threatening letter he received from the NPA to the police had he received such a threatening letter”.  The Tribunal also considered that Mr Tiquia’s assertion that the authorities in the Philippines could not provide him with effective or adequate protection was inconsistent with the country information provided by him, in the article in the Philippine Daily Inquirer which reported the capture of an NPA leader and NPA member on suspicion of having committed serious crimes.  The assertion was also inconsistent with the Department of Foreign Affairs and Trade advice, accepted by the Tribunal, that the NPA was not considered a major threat to internal security in the Philippines, but more of a “constant irritant” to the government.

23. The Tribunal concluded:

    “As I have found the applicant was not a credible witness, I do not accept his claim that the NPA threatened him because he sought to recover a debt from the NPA or an NPA member or associate or for any other reason; that the NPA stole his car or stoned his house; that the NPA threatened or stalked the applicant wife and applicant child; that the NPA sent the applicant a threatening letter shortly before Christmas 1998; that the applicant complained to the police that he had been threatened by or at risk of harm at the hands of the NPA; that the police failed to provide or were unable to provide adequate or effective protection against acts of violence by the NPA; and that the NPA has made threatening telephone calls to his relatives in The Philippines since the applicant has been in Australia.”

24. The Tribunal found that Mrs Tiquia was not a credible witness and that her evidence that she received many death threats was inconsistent with Mr Tiquia’s evidence.  The Tribunal did not accept that she received any death threats from the NPA, or that she had a nervous breakdown because of such threats or ineffective state protection. 

25. The Tribunal concluded that Mr and Mrs Tiquia did not have a well founded fear of being persecuted for a Convention reason. Accordingly, they were not persons to whom Australia had protection obligations under the Convention and did not satisfy the criterion set out in s 36(2) of the Act for a protection visa. The Tribunal noted that as no specific Convention claims were made by or on behalf of Mr and Mrs Tiquia’s son, his application depended upon the outcome of his parent’s applications. As the Tribunal refused to grant those applications, it followed that Mr and Mrs Tiquia’s son could not be granted a protection visa.

    The review

26. The applicants did not attend the hearing before the Federal Court and no legal representative appeared for them. They had filed written contentions of fact and law on 27 March 2001 and I have considered those contentions in reaching my decision. In those contentions, the applicants relied upon one ground of review. They submitted that the Tribunal’s decision involved an error of law within the meaning of s 476(1)(e) of the Act. The applicants referred to the passage from the Tribunal’s reasons for decision referred to at par 20 above. They submitted that it was clear from this passage that the Tribunal failed to consider the failure of the police authorities to afford protection to the applicants. In their application for review, the applicants stated “There were no results either way which is a clear indication of a failure of the state to protect or at the very least act on the complaints of the applicants”. The applicants also stated:

    “The NPA is still an active revolutionary unit of the Communist Party of the Philippines.  In the Country Information Report relied upon by the Tribunal, the US Department of State described the NPA ‘derives most of its funding from contribution of supporters and so-called revolutionary taxes extorted from local businesses.’  As found out by the Tribunal the applicant is an electrical contractor who had the misfortune of having an uncollected debt from a known NPA membe/supporter [sic].  The police could not do anything but just refer the applicant to lodge a court case which is not a real help since the applicant was already being victimised by the NPA.”

1. The Minister submitted that the Tribunal’s decision involved no incorrect interpretation of the applicable law or incorrect application of the law to the facts as found by the Tribunal within the terms of s 476(1)(e) of the Act, that the decision was made in accordance with law, and that the applicants have sought, in effect, a review of the merits, rather than a review of the legality of the decision of the Tribunal. The Minister provided detailed written submissions in relation to the approach to be taken by the Court when reviewing a decision pursuant to Pt 8 of the Act. Having regard to the limited ground of review relied upon by the applicants, it is not necessary to consider those submissions in any detail.

2. I am satisfied that the Tribunal did not fail to consider the applicants’ claim that the police had failed, or were unable, to afford protection to the applicants.  The Tribunal specifically directed itself to this issue and made findings of fact in relation to it.  The Tribunal specifically rejected the claim that the police failed to provide, or were unable to provide adequate protection against acts of violence by the NPA.  It was open to the Tribunal to reach this conclusion and make this finding of fact.

3. The effect of the applicants’ ground of review is to seek to review the merits of the Tribunal’s decision which is not a proper ground of review.  I pay heed to the observation of the majority (Brennan CJ, Toohey, McHugh and Gummow JJ) in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272:

   “… any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision‑maker upon proper principles into a reconsideration of the merits of the decision.  This has been made clear many times in this Court.”

4. The application for an order of review will be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             1 May 2001

Counsel for the Applicant:	There was no appearance by the applicants
Counsel for the Respondent:	BF Quinn
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 May 2001
Date of Judgment:	1 May 2001