Virginia Castro v Minister for Immigration & Ethnic Affairs [1997] FCA 40 (23 January 1997)

IMMIGRATION - Alleged refugee - Application for protection visa - Whether error of law by Refugee Review Tribunal - Alleged failure to take into account relevant evidence - No error of law.

Migration Act 1958 , s 476(1)(e)

VIRGINIA CASTRO v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

NO. NG.439 of 1996

CORAM: WILCOX J

PLACE: SYDNEY

DATE: 23 JANUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

) No. NG.439 of 1996

NEW SOUTH WALES DISTRICT REGISTRY )

)

GENERAL DIVISION )

BETWEEN: VIRGINIA CASTRO

Applicant

AND: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

Respondent

CORAM: WILCOX J

PLACE: SYDNEY

DATE: 23 JANUARY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )

) No. NG.439 of 1996

NEW SOUTH WALES DISTRICT REGISTRY )

)

GENERAL DIVISION )

BETWEEN: VIRGINIA CASTRO

Applicant

AND: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

Respondent

CORAM: WILCOX J

PLACE: SYDNEY

DATE: 23 JANUARY 1997

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an application for review of a decision made by the Refugee Review Tribunal in a review of a decision by a delegate of the Minister to refuse a protection visa to the applicant. The parties agree that the application before the Court has to be determined pursuant to s 476 of the Migration Act 1958 . The applicant relies on para (e) of s 476(1). That paragraph provides as follows:

"1. Subject to subsection (2), application may be made for review by the Federal Court of a judicially- reviewable decision on any one or more of the following grounds: ...

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision. ..."

The circumstances surrounding the application for refugee status are summarised in the decision of the Tribunal. No complaint is made about the adequacy of that summary. It is not necessary for me to deal with the facts at any length. It is sufficient to note that the applicant is a woman of Filipino nationality who came to Australia in 1991. The basis of her application for refugee status is that she had a well-founded fear of being persecuted by members of the New Peoples' Army (NPA) if she returned to the Philippines.

Ms Castro grew up in a village called Bicol. This was said to be a remote village containing a population of only about 1,000 people. She ran a small but successful business as a dressmaker, and she claimed to have been the victim of demands for extortion money by the NPA. As a result of events that occurred in about 1989, she moved to Manila where she lived for about two years before coming to Australia.

One of the problems faced by the applicant in the favourable determination of her claim is that the Tribunal was not prepared to accept much of the evidence that she gave. The reason for this failure was that the Tribunal saw it as being in conflict with statements made by the applicant on earlier occasions. It was, of course, for the Tribunal to determine the facts and to consider whether any inconsistencies that occurred in the various accounts of relevant events made unreliable the evidence put before it at the hearing of the review. No submission is put to me in relation to the way in which the Tribunal dealt with that task.

In the result, the elements of the applicant's case that were accepted by the Tribunal were comparatively limited. The Tribunal accepted that the applicant operated her business relatively successfully until 1989. It also accepted that she may have been subject to extortion demands from the NPA for what were called "revolutionary taxes". The Tribunal commented that the applicant's claims in respect of that matter were consistent with the "Country Information", that is information supplied to the Australian government from sources in the Philippines. The Tribunal also accepted that, because of financial problems encountered by the applicant in the running of her business, she failed to pay some or all the revolutionary taxes demanded by the NPA.

The Tribunal did not accept that the applicant had been involved in the organisation of resistance to the taxes by her co-villagers, or that she was accused by the NPA of having caused two relatives of her foster mother to refuse to pay NPA taxes. According to the applicant, these two people were killed by the NPA because of their refusals. The Tribunal accepted they may have been killed for this reason. The Tribunal also accepted their deaths may have caused the applicant to fear for her own safety because she had failed to pay taxes. However, the Tribunal noted that, shortly after that date, the applicant went to Manila. It found that she experienced no difficulties from the NPA during the period of almost two years she was in Manila.

The Tribunal found that the influence of the NPA in the Philippines had reduced dramatically in recent years and was now confined to a relatively small number of remote rural areas. In particular, the Tribunal found that there was no substantial NPA presence in Manila. It did not accept the applicant's claim that she would be at risk if she returned to the Philippines and lived in Manila. This latter finding was important, because the Tribunal accepted the submission that a person cannot be said to be at risk of persecution if she has access to effective protection in a part of her State of origin, where there is no unreasonableness in requiring relocation to that area. The Tribunal was of the opinion that there was no problem about the applicant living in Manila, and that she could survive in that city with her existing skills.

The error of law that is argued to have occurred in the present case is that, in reaching its conclusion, the Tribunal failed to give sufficient or any weight to evidence given to it by a witness, Ms Leamey. In her summary of the facts, the Tribunal member referred to Ms Leamey's evidence. In view of the submission, I should quote what was said:

"The witness, Mrs Leamey, claimed that she knew the Applicant as a child. She was born in the same village as the Applicant in October 1963, but left the village at ten years of age in 1973 and went to Manila with her family to study. She did not have contact with the Applicant again until she met up with the Applicant a couple of years ago in Australia. However, in the meantime, when she returned to visit the village, in approximately 1989, she heard that the Applicant was wanted by the NPA and had gone into hiding. Some time later, possibly on her last visit to the village in 1995, she heard a rumour that the Applicant had died. She did not have any specific details as to how she had died or for what reason, but it was a village rumour that maybe the NPA had got her. This was one of the reasons she was quite surprised when she saw the Applicant in Australia.

The witness told the Tribunal that she believed the NPA was still active in the Philippines. The witness had come to Australia at the age of twenty-two in 1985 and had returned to the Philippines on about six occasions but had returned to the village only on two or three occasions. The witness gave an example of a captain of one the nearby villages who had been accused by the NPA of exposing the NPA by associating himself with the military. He had gone into hiding for approximately seven to eight years. Upon his recent return to his village last year, he was found dead. It was presumed that he was killed by the NPA."

There is no suggestion that this summary fails to state the gist of the evidence given by Ms Leamey, but it is said that the Tribunal, in setting out its reasons for decision, did not specifically refer to this material. That is true, but I do not think it follows that the evidence was overlooked. The summary I have just quoted immediately precedes the section of the reasons headed "Findings of Fact and Reasons for Decision". Plainly the Tribunal member was aware of the evidence when she wrote her reasons.

The question whether the Tribunal has given adequate weight to a particular piece of evidence is a question of fact, not of law. Inadequate weight is not an error of law. If relevant evidence is totally overlooked, that might constitute an error of law, although it is debatable whether it would be an error falling within para (e) of s 476(1) of the Migration Act. I need not go into that question, because I see no basis for assuming that the Tribunal member overlooked the evidence. As I have said, she accurately summarised it immediately before setting out her reasoning.

In a sense it is unnecessary for me to do so. However, having regard to the submission, it is perhaps not immaterial to observe that, in any event, Ms Leamey's evidence did not carry the case much further. She left Bicol in 1973 and did not return until approximately 1989, after the applicant had left the village. Accordingly, she could have no first-hand knowledge of the circumstances that caused the applicant to leave the village, a matter that was critical to the applicant's case but in respect of which the applicant's evidence was substantially not accepted.

When Ms Leamey returned in 1989 she heard that the applicant was wanted by the NPA and had gone into hiding. She does not say the source of this information, but in any event I do not think it was inconsistent with the findings made by the Tribunal to the effect that the applicant had left the village and gone to Manila in 1989 because of fear of NPA action. The only other statement made by Ms Leamey about the village is that, when she went there in 1995, she heard a rumour that the applicant had died. It seems to be accepted all round that there was a belief, amongst some people, that the applicant was dead.

Another statement made by Ms Leamey, and it is a statement upon which counsel for the applicant puts considerable emphasis, is that Ms Leamey said she had heard that a captain of a nearby village had been accused by the NPA of exposing the NPA by associating himself with the military, had gone into hiding for approximately seven or eight years, and was killed on his return to the village, presumably by the NPA. This statement is not inconsistent with the finding of the Tribunal that the NPA was still active in remote villages in the Philippines, as I assume the subject village was.

One statement of Ms Leamey was not included in the summary, possibly because the Tribunal member thought it was simply a throw-away line. In answer to a question from the Tribunal member as to information that she heard when she went back "last year", i.e. in 1995, Ms Leamey replied: "Oh well, they said that the NPA is still active in that place, but now even in Manila you can hide anywhere. They'll always get you, but." She then referred to the captain of the other village.

There seems to be some inconsistency between the two sentences in this quotation. It may be that "can" should read "cannot". This would be consistent with the second sentence and her subsequent statement about the captain of the other village.

As I say, it was a matter for the Tribunal to consider the significance of Ms Leamey's evidence, but I can understand why the Tribunal put no reliance at all on Ms Leamey's comment about being unable to hide in Manila, if that is the burden of what the witness said. It does not appear what basis Ms Leamey had for this statement. If she was simply relating the position in Manila to the village whose captain had been killed, as seems likely in the context of the answer, her statement overlooked the fact that there was considerable evidence that the situation was different in the remote country villages from that existing in Manila. If Ms Leamey had other information, she did not state what it was. There is nothing to indicate that Ms Leamey studied the NPA situation in Manila, or had any reliable knowledge of it.

A tribunal of fact is not bound to refer to every item of evidence in framing its reasons. If this was required, reasons would attain an inordinate length. The Tribunal is required to set out its findings about essential facts, to indicate the legal principles it is applying and the chain of reasoning it has adopted. I cannot see any error of law in the Tribunal failing to mention this particular snippet of Ms Leamey's evidence.

The matters to which I have referred seem to go beyond the strict limitations contained in s 476(1)(e). I have referred to them mainly out of deference to the submissions put to me by counsel for the applicant. Whether one considers the matter in that larger way or, perhaps more strictly, in accordance with the limitations in para (e), I cannot see any basis for impugning the decision of the Tribunal. The application should be dismissed.

(Counsel addressed on costs)

I think the usual order should be made in respect of costs. I order that the applicant pay the costs of the respondent.

I certify that this and the preceding eight (8) pages

are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate:

Dated: 23 January 1997

APPEARANCES

Counsel for the Applicant: S Collingridge

Solicitors for the Applicant: Martin Churchill

Counsel for the Respondent: E Wilkins

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing: 23 January 1997