Alejandro Tolentino v Minister of Immigration and Ethnic Affairs [1993] FCA 559 (24 November 1993)

FEDERAL COURT OF AUSTRALIA

ALEJANDRO TOLENTINO v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG336 of 1993
FED No. 851
Number of pages - 6
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
GUMMOW J

CATCHWORDS

Administrative Law - application for domestic protection (temporary) entry permit - determination that the applicant did not have refugee status - whether denial of natural justice - whether decision made in accordance with a rule or policy without regard to the merits of the particular case or otherwise made contrary to law.

Administrative Decisions (Judicial Review) Act 1977

Migration Regulations

HEARING

SYDNEY, 12 November 1993
24:11:1993

Counsel and solicitors Rhonda Henderson
for the applicant: instructed by

Leith Hasson and Dent

Counsel and solicitors Elizabeth Wilkins

for the respondent: instructed by the

Australian Government
Solicitor

ORDER

The Court orders that:

(1) The application be dismissed.
(2) The applicant pay the costs of the respondent.

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

DECISION

GUMMOW J The applicant was born on 22 October 1944 at Valenzuela in the Philippines. Between 1975 and 1986, he worked as a jeweller in Valenzuela. His wife and three children still reside in the Philippines. On 5 April 1987, the applicant arrived at Sydney on a visitor's visa. He had a 6 month temporary entry permit, but stayed in Australia after the expiry of that permit. He worked in Sydney as a jeweller. On 13 November 1991, the applicant signed an application for refugee status and on 5 December 1991 he applied for a Domestic Protection (Temporary) Entry Permit.

2. On 15 April 1993, a Delegate of the respondent determined that the applicant was not a refugee within the meaning of the 1951 United Nations Convention and the 1967 Protocol relating to the Status of Refugees. The application for the entry permit also was refused by the Delegate on 15 April 1993. Regulation 117A of the Migration Regulations included as one of the necessary criteria for grant of a Domestic Protection (Temporary) Entry Permit the determination that the applicant had refugee status. It followed that that status having been denied, the entry permit also was to be refused.

3. A refugee is defined by the 1951 Convention, as amended by the 1967 Protocol, as a person who:

"owing to well founded fear of being persecuted
for reasons of race, religion, nationality,
membership of a particular social group or
political opinion, is outside the country of his
nationality and is unable or, owing to such
fear, is unwilling to avail himself of the
protection of that country."

4. The applicant's case had been that (i) he had a well founded fear of being persecuted for reasons of political opinion, and (ii) the government of the Philippines was unable to provide him with protection.

5. The decision denying the applicant refugee status is embodied in a document of 8 pages. The Delegate therein states that in making his assessment, he had regard to various material including the departmental file consisting of 96 folios. The file was in evidence on the present application.

6. By application filed in this Court on 28 May 1993, the applicant seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The application was filed outside the prescribed period specified in s. 11 of the ADJR Act, but it was accompanied by a notice of motion seeking an extension of time. Upon the matter coming before me for hearing on 12 November 1993, I made, without opposition by the respondent, an order extending the time for lodgment of the application for an order of review until 28 May 1993.

7. Reliance is placed upon three of the grounds of review specified in s. 5 of the ADJR Act. First, it is said that the making of the decision was an improper exercise of power because it was an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case: para. 5 (1) (e) together with para. 5 (2) (f). Then it is said that in the course of determining the application for refugee status, the delegate so fundamentally misdirected himself as to the question he was required to consider that he failed to perform his function and thereby made a decision that was "otherwise contrary to law" within the meaning of para. 5 (1) (j). Finally, it is submitted that a breach of the rules of natural justice occurred in connection with the making of the decision (para. 5 (1) (a)).

8. The first of these grounds may be disposed of somewhat shortly. The applicant maintained that some time in 1986 he became involved, to use a fairly neutral expression, with members of a communist group known as the "The New People's Army" ("the NPA"). The applicant says that after participating in various meetings and sessions, "they let me in to their operations", but that he did not participate in killing any person. Rather, he acted as a courier and at times served as a go-between for the NPA. The applicant decided to sever his connection with the NPA in 1987. He had earlier disclosed everything that he knew about the organisation of the NPA to a military officer who was an acquaintance. About a week after the applicant gave his information to the military officer, he received a call from a familiar voice, being one of the NPA members he had dealt with. The caller told the applicant that he would be killed for having betrayed them.

9. The material before the delegate included, as I have indicated, a voluminous departmental file. On 9 March 1992, Mr Tolentino had been sent the primary assessment and record of recommendation made by a case officer of the respondent's department. The recommendation was against the grant of refugee status because the applicant had failed to provide "adequate and consistent details substantiating the claim of persecution by the New People's Army". The applicant was given the opportunity to comment on the case officer's assessment and recommendation and to provide any new material in support of his claim to refugee status. This the applicant did in a 3 page typed letter dated 23 March 1992. Then, after consideration of this material, the delegate refused the grant of refugee status on 9 April 1992. The accompanying document contained reasons extending over 8 pages. The applicant was then notified by letter dated 9 April 1992 that whilst the decision had been adverse to him, he was entitled to seek a review by the Refugee Status Review Committee. This body comprises representatives from the respondent's department, from the Department of Foreign Affairs and Trade, the Attorney-General's Department and the Refugee Council of Australia. A representative of the United Nations High Commissioner for Refugees participates as an adviser.

10. The application for review was made on 11 May 1992, supported by 3 pages of detailed typed submissions by the applicant in which he dealt with various aspects of the assessment by the case officer. The committee recommended that the applicant not be given refugee status. A draft decision by the delegate was then prepared. On 1 April 1993, an officer of the respondent's department wrote to the applicant advising him of the adverse recommendation by the committee and stating that the delegate was presently of the opinion that the applicant was not a refugee. The letter continued:

"Before a final decision is made, you have the
opportunity to comment on the proposed decision.
You have fifteen (15) calendar days from the
date of receipt of this letter in which to do
so. You are deemed to have received it five (5)
working days after the date of this letter. I
have attached for your information papers which
set out the views of each member of the
Committee which form the basis of their recommendations."

The applicant responded with a letter dated 8 April 1993. Like all his correspondence, it was typed and in English. As I have indicated, the final decisions, including that the subject of the present application to this Court, were then made on 15 April 1993.

11. The ground contained in paras. 5 (1) (e) and 5 (2) (f) of the ADJR Act involves the exercise of a discretionary power in accordance with a rule or policy "without regard to the merits of the particular case". Counsel for the applicant before me referred to various passages in the reasons for the decision in question and the anterior decisions. These applied, she submitted, what were predetermined findings or assumptions as to the methods and activities of the NPA. Counsel then submitted that the applicant's case was then judged in a manner adverse to him because his version of events did not square with the particular view which had been taken as to the methods and activities of the NPA.

12. The present case does not fall within the statutory concept of "a rule or policy". Rather, there is, at best, a formulation of a view, after regard has been given to various sources of information as to the methods and operations of the NPA. The case put forward by the applicant as to his involvement with the NPA and his apprehensions following his severing of contact with the NPA, is assessed accordingly. The conflict is essentially, in my view, at the level of factual dispute rather than the exercise of discretion with reference to a rule or policy.

13. In any event, as counsel for the respondent pointed out, the voluminous materials to which I have referred are largely concerned with a detailed analysis of the facts as applicable to the applicant, with a view to a determination of his case upon the perceived merits. This is a far cry from the exercise of a discretionary power in accordance with a rule or policy "without regard to the merits of the particular case".

14. Accordingly, the first ground of the application for an order of review is not made out.

15. I turn to consider the second ground.

16. It is contended for the applicant that the respondent assumed a requirement to determine the case on the (false) footing that the recruitment of the applicant to the NPA was coerced, and that his departure from it was "forcible". However, paras. 4.6.2 and 4.6.6 of the reasons in support of the decision of 15 April 1993 denying the grant of refugee status, make it clear that the decision maker proceeded on the footing, after considering all the material, that little weight was to be placed upon the claim of association of the applicant with the NPA. The delegate proceeded on the basis that the applicant was not a member of the NPA. Likewise, the delegate also expressly found that the applicant did not "forcibly leave" the NPA. The delegate concluded that there was little evidence to suggest that after a period of 5 years in Australia, the applicant would face a real chance of persecution by the NPA. Accordingly, contrary to the contention of the applicant, it is incorrect to view the matter as one in which the delegate determined the question of whether the applicant would face a real chance of persecution solely on the assumption that his departure from the NPA was forcible.

17. The contention that the delegate's finding that the applicant did not hold a well founded fear of persecution for reasons of political opinion was flawed because of a fundamental misdirection by the delegate as to the question he was required to consider, is not made out. The finding which was made by the delegate was sufficient to deny the applicant refugee status.

18. A further aspect of the claim by the applicant was that the government of the Philippines was unable to provide him with protection. The delegate went on to hold (para. 4.7.1) that the government of the Philippines did provide a witness protection service, and that the applicant would be able to apply for inclusion in that service. It followed that the delegate did not accept the applicant's claim that he was unable to avail himself of the protection of the government of the Philippines. The difficulty with this finding is that the material before the delegate included information that whilst the Philippine government does have a witness protection programme, it only includes those people involved in assisting the capture of NPA cadres. It was pointed out that the applicant might not be eligible for the protection programme because of the apparently low level of his involvement with the NPA.

19. Nevertheless, in para. 4.7.1 of the decision of 15 April 1993, the delegate stated that should he accept the applicant's claims of his imputed association with the NPA, his assessment was that the applicant would be able to apply for inclusion in the witness protection service.

20. Counsel for the respondent quite properly conceded that this finding was deeply flawed. Nevertheless, she also pointed out that this additional finding was unnecessary, in the sense that the primary adverse finding to the applicant, was, of itself, sufficient to lead inevitably to the denial of refugee status. Accordingly, I would not make any order of review based upon this later deficiency in the decision making process.

21. There remains the third ground upon which an order for review is sought, namely that in connection with the making of the decision of 15 April, there occurred a breach of the rules of natural justice.

22. I have already traced the various steps in the decision making process which led to the decision, denying refugee status, of 15 April 1993. I have referred also to the placing before the applicant of the materials involved in the decision making process. In the primary assessment and decision dated 9 April 1992, the delegate, at various points, referred to what was said to be a lack in substantive details supplied by the applicant. In particular, it was said that the applicant had failed "to provide adequate and consistent details substantiating the claim of persecution by the New People's Army". Further written submissions were then made by the applicant, particularly in his application for review by the Refugee Status Review Committee. The additional material was summarised in the subsequent draft decision of the delegate as follows:

"He provided information to the military related
to NPA members, two locations of firearms
caches, and the planned ambush on the
Constabulary Detachment Unit in Bulacan.
The applicant established his credibility with
the military after the firearms were located and
arrests were made because of his assistance.
His association with the NPA occurred only
outside business hours.
He never became a member of the NPA, but he did
act as a courier on their behalf. The applicant
decided to leave the NPA in the 'early part of
1987' and that whilst he cannot remember the
exact time of the threatening phone call, it too
was during this period.
The NPA give advance warning of their intentions
as part of their terror tactics."

The applicant used the opportunity given him to comment on the proposed decision, before the final decision of 15 April 1993 was made. Again, he did so in writing, on 8 April 1993. In the final decision, the delegate summarised the additional claims then advanced by the applicant as having concentrated on the ideologies of the NPA and other political groups in the Philippines.

23. It is submitted that it was never spelled out to the applicant what was needed by way of substantive details. It also is said that the final letter of the applicant, of 8 April 1993, was allowed to pass by, whilst natural justice required the respondent at that stage to take the further step of bringing the critical issue of any new "Convention related claims" to the attention of the applicant before the final decision was made. In particular, counsel for the applicant contends that the decision maker should have emphasised the importance to be attached to information derived from Defence Intelligence sources.

24. As counsel for the respondent pointed out, it was not for the decision maker to make a case for the applicant. The applicant was afforded considerable opportunity, at various stages, to put all that he wished to put on the materials which were, to his knowledge, before the delegate. The present is, in my view, a case on facts quite different, for example, from Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472, Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 and Heshmati v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 387; (1991) 31 FCR 123.

25. The delegate did bring the critical issues to the attention of the applicant by the provision of a considerable body of material. The applicant's response of 8 April 1993 was not of such a nature that it required any further points to be drawn by the delegate to the attention of the applicant before the delegate proceeded with the final decision of 15 April 1993. By this stage, the issues in the case were plain and there was no obligation on the delegate to give the applicant any further opportunity to place material before him: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587, Amerasinghe v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 595; (1991) 33 FCR 30 at 38.

26. It follows that none of the grounds relied upon by the applicant is made out and, accordingly, the application should be dismissed with costs.