Villanueva v Minister for Immigration & Multicultural Affairs [1999] FCA 1619 (16 November 1999)

Last Updated: 30 November 1999

CATEGORY: NO QUESTION OF PRINCIPLE

FEDERAL COURT OF AUSTRALIA

Villanueva v Minister for Immigration & Multicultural Affairs [1999] FCA 1619

GONZALO VILLANUEVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N734 of 1999

WILCOX J

SYDNEY

16 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N734 of 1999

BETWEEN:	GONZALO VILLANUEVA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	16 NOVEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant, Gonzalo Villaneuva, pay the costs of the respondent, Minister for Immigration and Multicultural Affairs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N734 of 1999

BETWEEN:	GONZALO VILLANUEVA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	16 NOVEMBER 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1 WILCOX J: This is an application by Gonzalo Villanueva for review of a decision of the Refugee Review Tribunal upholding a decision of a delegate of the Minister to refuse a protection visa. It appears the applicant did not avail himself of the opportunity of attending a hearing of the Tribunal and the Tribunal member had to deal with the case on the basis of the written material submitted by the applicant.

2 The Tribunal member summarised the claims made by the applicant, as he understood them, in the following paragraph:

"The applicant claims that he left the Philippines when his wife's business clashed with a labour union. He claims that when they refused to meet the demands of the union, they were harassed and threatened and they feared for their lives. They came to Australia leaving their children in the care of their grandparents. On arrival in Australia his wife applied for refugee status which was not granted by the Department; this decision was subsequently confirmed by the Tribunal and then the Minister. The applicant claims that when they prepared to return to the Philippines, they received regular threats that their children would be kidnapped. He claims these threats were due to a perception that the applicant and his wife would return to the Philippines with money. The applicant and his wife decided to bring the children to Australia. The applicant claims he fears his family's lives would be in danger on return to the Philippines. He states he cannot seek protection in the Philippines as some of the kidnappers are either active or renegade police and military personnel, including two police majors chosen to head a task force to address kidnappings who were found to be leaders of a kidnapping gang".

3 Mr Diab, the solicitor for the applicant, referred me to an answer given to a question in the application form, in which Mr Villanueva set out his account of the circumstances which caused him to be unwilling to return to the Philippines, his native country. I quote:

"Before we left the Philippines in late 1996, my wife was operating a small scale garments manufacturing business in our province in Batangas. We had about 20 or more workers and the business was thriving until problems with our workers arose. Operations stopped and we could only have started again if we gave in to the demands of the militant labour union representing our workers. We refused and were subsequently harassed and threatened by people we strongly suspected to be outlawed rebels. Fearing for our lives, we left the province of Batangas and headed for the city. However, the threats on us persisted and we had no choice but to leave the country to seek refuge elsewhere. We left our two children with our parents, thinking, and hoping that they will be safe with them. Upon arriving in Australia, my wife, who was the one principally running the business and the main target of the threats, lodged an application for a protection visa. It was refused by the Department and the refusal was affirmed by the Refugee Review Tribunal. The appeal to the Minister was likewise denied and, as advised, we made preparations for our trip back to the Philippines. After almost two years, we hoped things would have gone back to normal and everything forgotten. Through our parents, we made initial enquiries as regards re-opening the garments business. Former employees were canvassed if they were still available and willing to work in the business again. In a small and close-knit community, word must have gone around regarding our impending return. Everybody in our place always assumes that people coming from overseas are loaded with `dollars' and easy prey for unscrupulous elements. Through our parents, we started receiving regular threats that our two children would be kidnapped for ransom. Although these threats might most likely be just pranks, it is possible that they may be genuine. Kidnapping for ransom is now very rampant in the Philippines. Whereas they were confined in the cities before, nowadays, kidnappings occur everywhere even in the provinces and rural areas. Businesspeople and their families are mostly the targets. The perpetrators are either rebel groups or renegade military authorities. The possibility that the threats on our children may be for real is very unsettling and we fear that if we were to return to the Philippines, our lives, especially our children's would be in grave danger. We therefore decided to bring our children here in order to avoid the dangers they are threatened with. We do not trust the Philippines military and police authorities. As have been proven in the past, some of the kidnappers are either active or renegade police and military personnel. The two police majors who were chosen to head a government special task force created to counter the wave of kidnappings sweeping the country two years ago were found to be in fact the leaders and protectors of one of the biggest kidnapping gangs."

4 It seems to me the Tribunal's summary accurately reflected the substance of the answer I have quoted. Mr Diab does not submit to the contrary.

5 After setting out the summary of claims, and under the heading "Findings and Reasons", the Tribunal member said this:

"The applicant's claims are not Convention-based. The Tribunal notes that the family have already been denied refugee status based on claims regarding their business involvement with the labor movement. The substance of this claim is fear of kidnapping. Such a threat to the family is based on perceived wealth rather than Convention-based issues of race, political opinion, religion, membership of a particular social group or nationality."

6 The Tribunal member went on to say that, having considered the evidence as a whole, he was not satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Accordingly, he affirmed the decision not to grant a protection visa.

7 Mr Diab's first submission is that the Tribunal failed to comply with s430(1)(c) and (d) of the Migration Act 1958 in that it failed in its written statement of decision to set out "the findings on any material questions of fact" and to refer to "the evidence or any other material on which the findings of fact were based". Mr Diab says the Tribunal member did not set out findings as distinct from repeating the applicant's claims. He argues the Tribunal ought to have expressly stated, in the section of its reasons headed "Findings and Reasons", whether it accepted the claims and, if not, why not. He says the failure to do this meant there was judicially reviewable error and the matter ought to be remitted to the Tribunal for further consideration.

8 I agree with Mr Diab that the Tribunal member did not expressly state whether or not he accepted the claims made by Mr Villanueva. It would have been possible for a statement to that effect to be set out in the section headed "Findings and Reasons". However, I do not think it was really necessary for this to be done, having regard to the fact that the Tribunal was prepared to deal with the case on the assumption that the claims made by Mr Villanueva were factually well founded. This was the only way in which one can read the section of the reasons headed "Findings and Reasons", which I have quoted. It will be noted that, after setting out the claims, the Tribunal member immediately goes on: "The applicant's claims are not Convention based". He gives reasons for that view. In other words, he is saying that, accepting everything that is claimed, the claim for refugee status must be rejected because the claims of persecution are not based on a Convention reason.

9 The Court must apply the review provisions of the Act in a commonsense way. As I pointed out to Mr Diab in the course of argument, s481 of the Migration Act confers on the Court a discretion to make various orders, including an order setting aside the decision of a Tribunal, and remitting the matter to the Tribunal. It would clearly be an incorrect exercise of discretion for me to set aside this decision simply because the Tribunal member did not expressly state whether or not he accepted claims, the truth of which he was, however, prepared to assume for the purposes of dealing with the applicant's case.

10 An analogy can be seen in the procedure adopted by courts considering demurrers and applications for summary judgment; the plaintiff's factual claims are accepted for the purpose of deciding whether the plaintiff is entitled to relief. If it is clear that, even on the plaintiff's own case, the claim must fail, then that has always been regarded as a sufficient basis for the court to enter summary judgment without the necessity for a trial on the facts. Although the analogy is imperfect, because the Refugee Review Tribunal is an administrative body, the commonsense that underlies the age old practice of courts equally applies to the Tribunal.

11 It would be almost grotesque for me to set aside the decision, because of the Tribunal's failure to make specific findings on claims which were, nonetheless, accepted for the purpose of considering whether the applicant was entitled to the relief that he sought.

12 The second submission put by Mr Diab to the Court is that the Tribunal erred in law in its interpretation of the words "political opinion" in the convention. This was developed only to the extent of saying that the words "political opinion" can extend to imputed political opinion and the imputation can be made because of the conduct of the person. Mr Diab cited in support of those propositions Saliba v Minister of Immigration and Ethnic Affairs (1998) 1461 FCA. This decision of Sackville J deals with an issue which has been ventilated, also, in more recent cases.

13 I have no difficulty with the approach taken by Sackville J. Indeed, I have myself upheld that approach. However, it is another matter to say that the Tribunal member erred in the present case. Mr Diab emphasised that the answer made by his client, quoted above, deals with two separate phases. In the first phase, Mr and Mrs Villanueva were operating a business. They had problems with a labour union, which they described as "militant". They say that, when they refused to concede the demands of the union, they were harassed and threatened. They therefore departed the Philippines, leaving their children behind, and came to Australia. After an application for a protection visa was refused in Australia, including on appeal, they made preparations to go back to the Philippines. At this time, they became aware of threats of kidnapping; those threats being made by people who assumed they were wealthy, because they were returning to the Philippines from overseas. This was the second phase.

14 The Tribunal member dealt with the case on the basis that Mr Villanueva had a genuine fear of kidnapping that was well founded in point of fact. He said, however, that a fear of kidnapping because of perceived wealth was not Convention based; in other words, it had nothing to do with imputed political opinion. Mr Diab does not argue against this, but he says that, in the first phase of his client's problems, there might have been a political element. I understand him to mean by this that his client may have suffered unreasonable demands because of a perception of a political opinion differing from that of the members of the union. Perhaps this is so, although there is no evidence to that effect. There might have been evidence if Mr Villanueva had chosen to appear before the Tribunal.

15 However, speculation along those lines has little to do with the reason for Mr Villanueva now declining to return to the Philippines. His ascribed reason is fear of members of the family being kidnapped because of a perception of wealth.

16 It might be possible to speculate that the applicant experienced past problems because of a perception about his political stance; but that is not the relevant time for applying the Convention definition. In order to be a refugee, a person must, at the time of assessment of his or her position, be under a well founded fear of being persecuted for one of a number of reasons, including political opinion. In other words, at the time of assessment by the Tribunal, there must be a well founded fear of being persecuted because of political opinion, actual or imputed. It is not enough that, at some earlier point of time, there may have been problems, even threats or instances of ill treatment, that were politically related.

17 The contention that the Tribunal fell into an error of law has no foundation. Neither of the grounds relied upon by the applicant is made out. The application must be dismissed with costs. I so order.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 16 November 1999

Solicitor for the Applicant:	Mr S Diab, John Maait & Co Solicitors
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 November 1999