Cameirao v Minister for Immigration & Multicultural Affairs [2000] FCA 1319 (15 September 2000)

Last Updated: 18 September 2000

FEDERAL COURT OF AUSTRALIA

Cameirao v Minister for Immigration & Multicultural Affairs [2000] FCA 1319

JOVITA CAMEIRAO (FORMERLY DEL ROSARIO) v MINISTER FOR IMMIGRATION AND MULTICULATURAL AFFAIRS

NO D 6 OF 1999

O'LOUGHLIN J

15 SEPTEMBER 2000

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 6 OF 1999

BETWEEN:	JOVITA CAMEIRAO (FORMERLY DEL ROSARIO) APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	O'LOUGHLIN J
DATE OF ORDER:	15 SEPTEMBER 2000
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1. The application be dismissed.

2 The applicant pay the respondent's costs which costs are to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 6 OF 1999

BETWEEN:	JOVITA CAMEIRAO (FORMERLY DEL ROSARIO) APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'LOUGHLIN J
DATE:	15 SEPTEMBER 2000
PLACE:	DARWIN

REASONS FOR JUDGMENT

1 The applicant in these proceedings is Ms Jovita Cameirao, a Filipino national. Prior to 23 November 1997, her surname was Del Rosario; on that date she acquired a "marriage blessing" from "the Universal Family" as a result of her de facto union with an Australian national, one Alfredo Jose Cameirao. On the hearing of her application, Ms Cameirao was assisted by Dr Prince Roman, the leader and Bishop in Darwin, of "the Universal Family".

2 Ms Cameirao, who was born in the Philippines on 15 November 1953, married Felix Del Rosario on 19 August 1977. They separated ten years later on 10 August 1987. Mr and Mrs Del Rosario have two children, a son aged twenty-seven who lives in Saudi Arabia and a daughter aged twenty who continues to live in the Philippines. In her application for a protection visa Ms Cameirao said:

"I had a Catholic marriage with my husband who while married to me found some [one] else. They lived together while I was left also."

That statement points to her husband having left her for the other woman; a conclusion that is at variance with Dr Roman's statement from the Bar table that she left her husband. In any event, her statement makes it clear that she regards herself as the innocent party in the break-up of her marriage.

3 Ms Cameirao continued to live and work in the Philippines for a further seven years or so. There was no evidence placed before the Tribunal that pointed to her suffering any form of inconvenience or hardship - let alone persecution - during this period. Yet it is her claim that she has a "well-founded fear of being persecuted" for reasons of religion, nationality and membership of a particular social group should she be forced to return to the Philippines. This fear is, so she has claimed, based upon her unacceptable status as a woman, in an intensely Catholic country where divorce is not permitted, who has ceased to co-habit with her husband.

4 On 28 April 1994, Ms Cameirao left the Philippines for Hong Kong where she had obtained employment as an "overseas contract worker". During her time in Hong Kong, she met Mr Cameirao who, in due course, invited her to come to Australia. She visited him and his family in Darwin during February 1997; this visit had been preceded by correspondence between the parties. Ms Cameirao returned to Hong Kong; she and Mr Cameirao attempted to have her emigrate to Australia as his fiancee, but this was unsuccessful as, so she claimed, she was not divorced and could not get a divorce under Philippine law. Eventually Ms Cameirao arrived in Australia on 24 October 1997 and resumed her de facto relationship which had commenced with Mr Cameirao the previous February.

5 On 15 January 1998, Ms Cameirao applied for a protection visa; her application was refused on 23 February 1998. On 19 March 1998, Ms Cameirao applied to the Refugee Review Tribunal for a review of that adverse decision.

6 On 8 December 1998, the Tribunal wrote Ms Cameirao saying, in part:

"The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now entitled to come to a hearing of the Tribunal to give oral evidence in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person.

You now need to tell the Tribunal:

. whether or not you want to come to the Tribunal to give oral evidence; and

. whether or not you want to ask the Tribunal to obtain evidence from other people."

7 This letter evoked an amazing chain of correspondence from Dr Roman, which in the end, caused Ms Cameirao to miss her opportunity of putting her case before the Tribunal in further detail. Before recounting these events, it is first necessary to have regard to the provisions of the Migration Act 1958 (Cth) ("the Act") as in force in and shortly after December 1998.

8 Prior to 1 June 1999, s 424 of the Act allowed the Tribunal to make a review that was favourable to the applicant "on the papers". If, however, the Tribunal did not consider that s 424 could apply to the circumstances of a particular applicant, s 425 required the Tribunal to "give the applicant an opportunity to appear before it to give evidence"; the same section also contained a provision that empowered the Tribunal "to obtain such other evidence as it considered necessary".

9 Both ss 424 and 425 were repealed and substituted by Act No 113 of 1998, with effect from 1 June 1999. However, they applied in their former state to the Tribunal's review of Ms Cameirao's application in this matter.

10 Section 426 required the Tribunal (when a review on the papers was not appropriate) to give the Applicant notice that she was entitled to appear before the Tribunal to give evidence and also to give her notice of her rights to have the Tribunal obtain other oral evidence. The Tribunal's letter to Ms Cameirao of 8 December 1998, was written to her in compliance of the Tribunal's statutory obligations under s 426 as they then existed.

11 Dr Roman's reply to the Tribunal's letter of 8 December was dated 11 December 1998. Its contents show that Dr Roman did not understand the role of the Tribunal. He wrote:

"From your letter of 8^th December 1998, it would appear that you intend to oppose this application.

In order to provide the applicant an opportunity to respond appropriately, would you please advise the REASONS for your inability `to make a favourable decision', and provide discovery of any allegedly adverse EVIDENCE you intend to use."

12 In the first place, it is not the role of the Tribunal to "oppose" or to "support" any application that comes before it. Its mandate is to act with complete neutrality. Section 420, which details the Tribunal's way of operating, emphasises that it "must act according to substantial justice and the merits of the case". Secondly, there was no obligation on the Tribunal, either under the Act or elsewhere to state its reasons for not making "a favourable decision". Indeed, it is questionable whether the conduct of the Tribunal amounted to a "decision". The primary task of the Tribunal was to review the decision of the Minister's delegate: par 411(1)(c) of the Act. One quick and efficient way to do it was afforded by s 424 (the review on the papers) but only if it was appropriate for the Tribunal to make a decision that was favourable to the Applicant. If the Tribunal was of the opinion that s 424 was not appropriate, it did not mean that the Tribunal had made a decision - favourable or unfavourable - on the application for review; it merely meant that the information that was presently before it was insufficient to make a decision that was favourable to the applicant. So understood, it would have been most inappropriate for the Tribunal to have embarked on correspondence with the Applicant on the subject; that was not what the Act intended.

13 The Tribunal responded by letter dated 4 January 1999 assuring Ms Cameirao that it had not "made a decision in relation to" her application. It explained that its earlier correspondence was designed to invite her to attend a hearing and the letter stated that a hearing would take place on 29 January 1999. Dr Roman responded on 10 January seeking an adjournment; he wrote that he had approached the United Nations High Commission for Refugees requesting "special evidence to place before the Tribunal". He gave no indication of the subject matter that would be addressed by that evidence, on the next day, 11 January, the Tribunal wrote Dr Roman:

"You do not indicate what sort of material you are seeking from the UNHCR nor how it is relevant to the applicant's case. The Member will discuss this further in the hearing and if necessary will allow further time after the hearing for the submission of additional material."

14 Dr Roman's reply on 17 January 1999 stated that:

"... our letter to UNHCR is to obtain confirmation of the nature and extent of the intolerance and persecution to which maritally separated persons are subjected by the Catholic people and Government of the Philippines."

15 He once again sought an adjournment of the hearing. The Tribunal responded on the following day, 18 January, stating that the matter would not be adjourned but it reiterated that "it will allow further time after the hearing for the submission of the material from the UNHCR". Once again Dr Roman responded, still seeking an adjournment, but lifting the tone of his criticism of the Tribunal. He wrote on 25 January 1999:

"Their rushed reply of the following morning 18 January was UNRESPONSIVE to our letter, and apparently UNCONCERNED about the requirements of Section 420 of the Migration Act.

Jovita, the Applicant, is a very SENSITIVE person and, facing an apparently inconsiderate Tribunal, we have NO CONFIDENCE that the Tribunal is competent to deal fairly with this matter."

16 The Tribunal wrote on 28 January repeating that there would be no adjournment but when Ms Cameirao did not attend the hearing on 29 January it wrote her, generously allowing for the possibility that there may have been some "misunderstanding" and informing her that the hearing had been adjourned to 15 February 1999. This led to yet another request from Dr Roman for an adjournment, coupled with a very strong attack on the conduct of the Tribunal:

"It would appear that both the Tribunal and the Acting Principal have failed to make a courteous, complete, and rational reply to our correspondence.

For this reason, WE REPEAT that we have NO confidence in the Tribunal in this matter and WE REPEAT that we have REASONABLY requested that the matter be shelved until November to avoid unnecessary activity at public expense."

17 I am unable to agree with Dr Roman's complaints. In my opinion the Tribunal conducted itself and its correspondence in a timely, considerate and courteous manner. The Tribunal has its statutory duties to perform and neither Dr Roman nor any one else is in a position to dictate to the Tribunal how it will go about performing their duties. To say that he has "no confidence in the Tribunal" is to show that he has misunderstood the role of the Tribunal. The fact that the Tribunal fails to accede to a request from a litigant is no ground, without more, for claiming a lack of confidence in the Tribunal. In any event, in the circumstances of this case as I have recounted them, I am fairly of the opinion that the conduct of the Tribunal in its correspondence with Ms Cameirao and with Dr Roman was impeccable.

18 On 15 February 1999, the Tribunal proceeded to consider Ms Cameirao's application. On 22 February, it published its reasons affirming the earlier decision not to grant a protection visa. Ms Cameirao has now applied to this Court to review the decision of the Tribunal.

19 In her application for a protection visa, Ms Cameirao referred to "the sufferings and oppressions" to which she had been subjected. I take this to mean "the sufferings and oppressions" that she endured in the Philippines after she and her husband separated. Unfortunately, she omitted to give any details; what were the sufferings and oppressions? When did they occur? Who perpetrated them? How was she affected by them? She has answered, to some extent, the last question for she added in her application".

"My world collapsed. The mental anguish I suffered completely shattered me. Instead of commiserating with my situation, people reckoned I was also to be blamed and so I was subject of derision, gossip and indignation especially by Catholic fanatics who believe that marriage is for life and should not be broken regardless of what happens."

She has claimed that she became a "victim of religious and social condemnation."

20 In answer to a question in the application form: "What do you fear may happen to you if you go back to [the Philippines]", Ms Cameirao answered in part:

"I am extremely fearful that if I go back to the Philippines, the same kind of people who treated me with contempt before will continue to deride and ostracise me as they are too opinionated. Their attitude about marriage and break ups will be the same and I'll never be happy in that sort of atmosphere and environment. I will go back as a victim of contempt, gossip and depression."

21 What I have thus far recounted represents a summary of the information that Ms Cameirao chose to put before the Minister's delegate and the Tribunal in support of her application for a protection visa. The Tribunal, in considering her application for review, had regard to that information, it being the evidence that it was able to extract from the Department's and Tribunal's files. The Tribunal also said that it had regard to "information which the Tribunal has obtained from independent sources about matters referred to in the application". Unfortunately the Tribunal omitted to identify that information. This omission was a source of complaint by Dr Roman on behalf of Ms Cameirao. He submitted that the Tribunal should not have made a decision that was adverse to her interests without first apprising her of the nature of the information.

22 It was suggested by counsel for the Minister that Dr Roman may have been relying on the provisions of s 424A of the Act. That section provides that, in certain circumstances, there is an obligation of the Tribunal to supply to an applicant "particulars of any information that the Tribunal considers would be the reason, or a part of a reason, for affirming a decision that is under review". However, s 424A which was introduced by Act No 113 of 1998, did not come into force until 1 June 1999, some several months after the date of the Tribunal's decision; s 424A does not therefore have any part to play in a consideration of Ms Cameirao's complaints.

23 It would have been of assistance to have known what information the Tribunal had regard to but I do not consider that its failure to inform Ms Cameirao is a ground for intervention by this Court. The passage in the Tribunal's reasons points to it having acquired information "about matters referred to in the application" which suggests matters such as attitudes in the Philippines to divorce and the status of women; it does not suggest that the Tribunal acquired information that was personal to Ms Cameirao.

24 The Tribunal accepted that separated women in the Philippines were subjected to a degree of social disapproval. However, it was not prepared to make a finding that such treatment was of sufficient seriousness to amount to persecution within the terms of the Convention.

25 The Applicant is not at risk of being persecuted because of her religious beliefs. If there is any risk of persecution, it would be because of the religious beliefs of her supposed persecutors. Even so, such an application might still be able to invoke the Convention and the protection that it affords: for the Convention does not talk of persecution for reasons of the Applicant's religion; it merely talks of persecution for reasons of religion. If then, there is a real chance of Ms Cameirao being persecuted because of her status as a woman from a failed marriage and the persecution is attributable to religion, she would be entitled to call in aid the Convention as amended by the Protocol.

26 In addition to the issue of religion, Dr Roman also argued that Ms Cameirao was at risk of persecution because of her nationality: i.e., being a Filipino, she was the object of derision because of her failed marriage - if she was of some other nationality she would not likewise be singled out. He also claimed that Ms Cameirao and all other Filipino women constitute "a particular social group" and that they were, or were likely to be, the victims of persecution because of their membership of that group.

27 The prescribed criteria for the grant of a protection visa are set out in subs 36(2) of the Act and cl 866 of Sch 2 to the Migration Regulations: see subs 31(3) and Reg 2.03. Subsection 36(2) of the Act states that the criterion for the grant of a protection visa are that:

"... the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5 of the Act as meaning "the convention relating to the status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967."

28 A refugee is defined by Art 1A(2) of the Convention as amended by the Protocol as a person who:

"Owing to a 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; 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."

29 In determining whether one or more convention reasons applies to an applicant's circumstances, Black CJ (with whom French J agreed) said in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417 at 420:

"The convention definition does not extend to all persons who have a well-founded fear of being persecuted in their country of nationality; it requires that there be a fear of being persecuted for one of the specified reasons. Those reasons may of course overlap, but a recognition that this is so should not obscure the fact that a well-founded fear of persecution or a specified reason must be shown.

Each element of the definition must be considered. ... It is not enough to establish only that persecution is feared by reason of some act that a person has done, or is perceived to have done, and that others who have done an act of the same nature are also likely to be persecuted for that reason. The primary focus of this part of the definition is upon an aspect of what a person is - a member of a particular social group - rather than upon what a person has done or does."

30 Determining whether an applicant for a protection visa holds a well-founded fear of persecution is essentially a two stage process which requires a subjective and objective examination of the applicant's circumstances. Subjectively, the Tribunal, as the decision-maker, must determine whether the applicant is actually in fear of persecution, and objectively, the decision-maker must determine whether the applicant's fear is based in reality: Chan Yee Kin v The Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379.

31 This Court's power to review the Tribunal's decision is found in ss 475 and 476 of the Act. The first of those sections identifies decisions that are judicially reviewable and a decision of the Tribunal is one such decision. Section 476 provides that an application may be made for review of a Tribunal's decision by this Court on one or more of the grounds that are set out in subs (1) of that section.

32 The grounds of review, as stated in Ms Cameirao's application to this Court are set out below:

"1. the respondent failed to interpret the Convention definition of refugee fully and properly and applied to the applicant a narrow and restrictive interpretation which also took no account of the subjective aspect of the applicant's anxiety;

2. the respondent failed to interpret correctly the purpose of Section 420(I)(a) of the Migration Act, whose purpose is to assist the applicant rather than cause additional oppression;

3. the respondent decision does not accord with the requirements of fairness and justice in Section 420 of the Act."

The last two of these grounds can be disposed of quickly.

33 As a result of the recent decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; [1999] 162 ALR 577, it is now clear that s 420 of the Act does not create rights or grounds of review that are additional to those given in s 476; at 613 per Hayne J. Gleeson CJ and McHugh J, in their joint judgment, explained that provisions, such as s 420, are intended to be facultative, not restrictive:

"Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals." (at 588)

34 In the particulars in support of the grounds of review, Ms Cameirao first addressed the meaning of the word "persecution". The Tribunal had in its reasons referred to a passage in the judgment of Gummow J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 where his Honour referred to the primary meaning of the term "persecution" in ordinary usage. He said:

"The action of persecuting or pursuing with enmity and malignity; esp the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it ...." (at 284)

35 The Tribunal went on to add that not every threat of harm or interference of a person's rights for a Convention reason constitutes being persecuted. As Mason CJ said in Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379 at 388, persecution requires "some serious punishment or penalty or some significant detriment or disadvantage". The Tribunal then added:

"Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures `in disregard' of human dignity. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors."

36 It was submitted on Ms Cameirao's behalf that the Tribunal erred in "applying the primary meaning of "persecution" ... and avoiding others". This ground was not, however, developed further in argument, and in light of its adoption and use by a member of the High Court I am not prepared to depart from its application in the circumstances of this case. It was next submitted that the Tribunal failed to appreciate that the treatment that Ms Cameirao has endured and will endure should she be returned to the Philippines represents "significant detriment or disadvantage" and "disregard of human dignity". There are two answers to this submission; in the first place, the Tribunal was prepared to acknowledge, as a general proposition, that separated women were subjected to a degree of social disapproval; in the second place, the Applicant failed to present to the Tribunal any information about her personal circumstances that would point to her having been the victim of such detriment or disadvantage.

37 The next complaint was that the Tribunal failed to recognise that "this form of persecution is both official and officially tolerated". This assertion is not entirely correct. The Tribunal, in its reasons, referred to the US Department of State, 1997, Country Reports on Human Rights Practises for 1996 - Philippines, 30 January, p 760, from which it extracted a statement that:

"Church opposition to divorce in this overwhelmingly Catholic nation is strong."

38 The next complaint raises an interesting point; it is alleged that if Ms Cameirao were to be returned to the Philippines she would be branded "an adulterer". In the event of that occurring, it would be by virtue of her de facto relationship with Mr Cameirao which did not commence until she came to Australia. But I do not think that would give rise to some form of estoppel. I consider that the happening of one event that occurs after a person leaves his or her country can be taken into account in determining whether that person is one in respect of whom Australia has an obligation. However, I fail to see how such a reaction to "an adulterer" would constitute a convention reason.

39 There were further grounds of complaint (nineteen in all) but many of them were duplications and others (such as the failure to supply information to Ms Cameirao) have already been addressed.

40 In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (see above), the High Court held that there must be a "real chance" of persecution if the person were to be returned to the country of his nationality. The Court observed that the "real chance" test discounts a "far-fetched possibility" (at 429 per McHugh J) and "what is remote or insubstantial" (at 407 per Toohey J).

41 At 389 Mason CJ observed that:

"... the expression a "real chance" ... clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring .... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring."

The court stated that the term "well-founded fear of being persecuted" denotes that the applicant must have a subjective fear and that the fear must have a basis in reality. At 396 Dawson J stated that:

"The phrase "well-founded fear of being persecuted" ... contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear."

42 In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 572 the majority (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) said of the decision in Chan's case that it was:

"... an important decision of this court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term "well-founded fear" is to invite error."

On the following page, the majority explained in further detail:

"Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation."

43 In Periannan v Minister for Immigration and Ethnic Affairs (unreported: Federal Court, 28 July 1987) Wilcox J said of "persecution" that:

"It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances."

That passage was referred to with approval by Davies J in the Full Court in Muralidharan v Minister for Immigration and Multicultural Affairs (1996) 62 FCR 402 at 405. In the following year, McHugh J wrote on the same subject in Applicant A v Minister for Immigration and Multicultural Affairs [1997] HCA 4; (1997) 190 CLR 225 at 257-258:

"The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution."

Later at p 258 of his judgment, McHugh J added the further comment about the difficulties that may be confronted by citizens of a country that is suffering the horrors of civil war. He said:

"Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution Yang v Carroll (1994) 852 F Supp 460 at 467. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race cf Korematsu v United States (1944) 323 US 214."

44 To establish whether the applicant, if she returns to the Philippines, will face a real, as opposed to a fanciful, chance of persecution because of any convention reason, it is necessary to examine the whole of her circumstances as they presently exist.

45 Those circumstances are - though no fault of the Department, the Tribunal or this court - very sparse. Nothing is known about her claims of persecution other than her general statement to which reference has already been made. On the other hand, she seemed able to survive her separation for some seven years before leaving for Hong Kong. This seems an inordinately long period of time if, as the Applicant said, she was being persecuted because of one or more of issues of religion, nationality or group membership.

46 It was not as if the Tribunal rejected her evidence; it only came to the conclusion that the information that was before it was insufficient to afford her the protection that she sought. I disagree with the submission that was made on behalf of the Minister to the effect that the Tribunal disbelieved Ms Cameirao. I am satisfied that the Tribunal performed its duties as it should.

47 As Gleeson CJ and McHugh J pointed out in their joint judgment in Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 25:

"... even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution."

48 Referring to the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (see above) at 576, their Honours went on to say:

"The Tribunal "must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution"."

49 The greatest difficulty confronting Ms Cameirao - and the one that she has not been able to overcome - is that identified by the Tribunal in the concluding section of its reasons where it states that the Philippine divorce laws are laws of general application. In Applicant A (see above) the High Court considered whether the application of a generally applicable law could amount to persecution. It was held that the enforcement of ordinarily applicable laws will not amount to persecution unless the law is not applied generally or is applied in a way that is discriminatory. The prohibition on divorce in the Philippines applies to all citizens regardless of their race, nationality, religion, political beliefs or membership of a particular social group. There is no evidence available to suggest that the application or enforcement of the law is applied discriminatorily in a manner amounting to persecution.

50 There was no material before the Tribunal that would indicate that if Ms Cameirao returned to the Philippines either under the blessing of the Universal Family or in a de facto married state or as a single person, that she would be likely to receive treatment that would amount to persecution. It was open to the Tribunal to be satisfied that Ms Cameirao did not hold a subjective fear of treatment or harm that would be of sufficient seriousness as to amount to persecution within the terms of the Convention. Alternatively, it was open to the Tribunal to find that any fear of persecution that might be held by the applicant was not well founded.

51 There being no error on the part of the Tribunal, the application must be dismissed with costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Associate:

Dated: 15 September 2000

The applicant was assisted by:	Dr Roman
Counsel for the Respondent:	Mr A Young
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 April 2000
Date of Judgment:	15 September 2000