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Federal Court of Australia |
Last Updated: 27 January 1999
Convention Relating to the Status of Refugees, Geneva 1951
Protocol Relating to the Status of Refugees New York 1967, Article 1A(2)
Migration Act 1958 (Cth) ss 36, 420, 424, 425, 426, 430, 476
Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 cited
Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 130 ALR 314 cited
Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 142 ALR 331 cited
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 cited
Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324; (1997) 81 FCR 71 cited
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 717 cited
Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 followed
Minister for Immigration and Ethnic Affairs v Su Shan Liang [1996] HCA 6; (1996) 185 CLR 259 followed
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 followed
Inderjit Singh v Minister for Immigration and Multicultural Affairs (unreported, judgment delivered 29 October 1998) cited
Calado v Minister for Immigration and Multicultural Affairs (Moore, Mansfield and Emmett JJ; unreported, judgment delivered 2 December 1998) cited
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 cited
DENRY ANTONIO & LETICIA ANTONIO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. DG 8 of 1998
O'LOUGHLIN J
22 JANUARY 1999
ADELAIDE (Heard in Darwin) IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY DG 8 OF 1998
BETWEEN: First Applicant
LETICIA ANTONIO
Second Applicant AND: First Respondent
JANET WOOD AND OTHERS
Second Respondent
DENRY ANTONIO
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
JUDGE:
O'LOUGHLIN J DATE OF ORDER: 22 JANUARY 1999 WHERE MADE: ADELAIDE (heard in Darwin)
THE COURT ORDERS THAT:
1. The joint application of Denry Antonio and Leticia Antonio be dismissed.
2. The applicants 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 | DG 8 OF 1998 |
|
BETWEEN: | DENRY ANTONIO
First Applicant
LETICIA ANTONIO Second Applicant | |
|
AND: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
JANET WOOD AND OTHERS Second Respondent |
JUDGE:
O'LOUGHLIN J DATE OF ORDER: 22 JANUARY 1999 WHERE MADE: ADELAIDE (heard in Darwin)
2 On 1 April 1997, a delegate of the respondent Minister refused to grant them protection visas. On 30 April 1997, each applicant sought review of the decision that affected him and her in separate applications to the Refugee Review Tribunal ("the Tribunal"). In each case, the Tribunal on 3 June 1998 affirmed the decision of the delegate not to grant a protection visa. The applicants have now jointly applied to this Court seeking a review of the two decisions of the Tribunal.
3 Section 36 of the Migration Act 1958 (Cth) ("the Act") states that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). The relevant provision of the Convention is Article 1A(2), which provides that a person is a refugee 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 High Court, in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, has laid down that the expression "well-founded fear of being persecuted" encompasses within it both a subjective and an objective element. There must be a subjective fear of being persecuted and that fear must be well-founded. The objective component requires that there be a real chance of persecution for a Convention reason if that person were to be returned to his or her country of nationality.
5 Mr Antonio, who is now forty years of age, was born in the Philippines in the town of Concepcion in the province of Tarlac. Mrs Antonio is two years older; she was born in Manilla in 1956. Mr Antonio is a psychologist by profession and Mrs Antonio is a pharmacist. However, Mr Antonio had never worked in his profession; he said that he had worked as a salesman and a checker with the Pepsi-Cola Bottling Company from 1981 to 1991, after which he and his wife operated their own drug store until they sold it in 1995 at about the time they left for Australia.
6 The circumstances under which Mr and Mrs Antonio made claims for protection visas are confusing. In his original application, Mr Antonio said, in answer to the question "why did you leave that country":
"I had no wish to leave the Philippines for good but I have no other choice. It is either to stay and get killed or leave the country and save my life and my family. I love my family so much. They are my only reason for living. I do not want their live in danger or salvage [sic] or killed because of my dealing with Eddie Pineda."Mrs Antonio's answer was not as positive but it was still consistent with that of her husband:
"I left the Philippines with my husband to avail ourselves with a rare opportunity of being able to relax and be away from fear.7 However, when the time came to give evidence before the Tribunal both of them said that they had come to Australia for a holiday and to visit a relative in Darwin. This contradictory evidence is then further complicated by passages in their evidence that are more consistent with them leaving the Philippines because of fears for their safety.
Since my husband was involved with the NPA their Union leader, Eddie Pineda, our life wasn't the same anymore."
8 Nevertheless, it would be fair to say that Mr and Mrs Antonio claimed refugee status because of the perceived political opinion of Mr Antonio. They presented their claim upon the basis of the association that had formerly subsisted between Mr Antonio and a man named Eddie Pineda and, through Pineda, Mr Antonio's contact or association with the New People's Army ("the NPA").
9 Mr Antonio said in evidence that, as a member of a union whilst working for Pepsi-Cola, he had come into contact with the union leader, Eddie Pineda; Mr Antonio described him as "one of the most powerful kingpins in the New People's Army". I understand that the NPA is the guerilla arm of the Communist Party of the Philippines ("the CPP"). Mr Antonio said that he knew that Pineda was a killer, but, as he thought that he (Pineda) was fighting for the sake of all workers, he did not "condemn" him. Mr Antonio further said that, although he was not personally involved in the activities of the NPA, he had met other commanders through Pineda and had learned a lot about the organisation's activities, including the "salvaging" of opponents and defectors from the NPA. It is significant that Mr Antonio, in his evidence, did not positively assert that he was ever a member of the NPA.
10 Mrs Antonio's evidence was to the same effect. She said that following on her husband's involvement with the NPA, their life changed:
"While it was true that he didn't actually or personally involve himself in the operation of killing, harassing or salvaging military men and others who are opposed to the NPA, he nevertheless has the knowledge of how they operate."11 In his application for a Protection Visa, Mr Antonio wrote that he had, over the years, acquired knowledge of the nefarious activities of the NPA; he had also met, so he said, "top Communists of the organization". After a while, he realised that he had got himself "involved indirectly in this movement" even though he was not "personally involved in their atrocious activities ...". He then wrote:
"Suddenly I felt my life could be in danger, I had a strong desire not be associated with these people anymore. I know the secret identities of these die hard NPA's who shoot to kill anyone who could squeal about their operations. If I stop dealing with them, it means one thing, they'll let me disappear too.12 Mr Antonio said that his circumstances began to deteriorate when he became aware that a number of people wanted to quit the NPA. At about the same time he also discovered that a Colonel Cruz, a high ranking military officer in Laguna, and other officials were colluding with the NPA. This section of his evidence suggests therefore, that he was reverting to his original explanation for leaving the Philippines. Mr Antonio claimed that if he went back to the Philippines the NPA would invite him to rejoin them; he said that if he refused to associate with them he would be put on their "hit list". Mrs Antonio expressed similar fears.
Baffled, confused and bewildered, I applied for holiday in Australia on invitation of my cousin ..."
13 Both applicants said that they had heard from their eldest daughter that some strangers had been trying, persistently, to locate their whereabouts. The relevant extract from the daughter's letter which is dated 16 April 1996 is as follows:
"And Mommy the 2 men I mentioned to you before came back. They kept insisting to Sister Alcal that they will give P100,000 just to give them your address there. Mommy I am getting scared. I wish you transfer to another home. And go away with Daddy. Mommy, what is your problem and Daddy's, and why are they offering such a huge amount? Mommy write us so that I know. What we said was that we don't know your address there as you advised us to do."Mrs Antonio said that she thought that the strangers must be from the NPA. She also said that she feared that the NPA would harm her and her husband if they returned to the Philippines; she added that she could not expect protection because the authorities believed that she and her husband were members of the NPA.
14 Mr Antonio has not put forward, either by way of evidence before the Tribunal or in any other form, that he is or was a Communist, that he is or was a member of the Communist Party or that he is or was a member of the NPA. Nor did he or his wife proffer any evidence of any direct or indirect threat against them before they left the Philippines. Everything that they have said, other than their daughter's letter and some other correspondence to which reference must be made, is based on supposition. Mr Antonio said in his evidence before the Tribunal that he had a belief that other people, including the police, may have had the perception that he was a member of the NPA because of his close association with Eddie Pineda. As to this, it must be acknowledged that a person can be the victim of persecution merely because he or she is perceived to possess one or more of the five convention qualifications. Thus Mr Antonio might not be a member of the NPA but he may nevertheless be the victim of persecution "for reasons of" political opinion if the persecutory body wrongly perceives him to be a member of the NPA. See Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 130 ALR 314 at 317 per Burchett J where his Honour said:
"People are persecuted for something perceived about them or attributed to them by their persecutors"See also Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 142 ALR 331 at 340 per Dawson J where his Honour referred to "actual or perceived membership . . .". Nevertheless, that observation leaves unanswered the vital question: do Mr and Mrs Antonio respectively have a "well-founded fear of being persecuted for reasons of ... political opinion ...?"
15 In support of their respective applications, both applicants relied upon a letter dated 29 December 1996 that was addressed to Mr Antonio's brother. The letter was typed on the letterhead of the "Office of the Mayor" of the Municipality of Concepcion. It read as follows:
"Dear Denvy,16 The applicants also submitted a letter dated 28 September 1997 that purportedly came from the Chief of Police. It was addressed to Mr David C Antonio, the father of Mr Antonio. This letter said:
This is in connection with your brother DENRY A. ANTONIO and his wife LETESIA HAYDEE P. ANTONIO status in the Philippine National Police ORDER OF BATTLE.
(a) Denry A. Antonio, alias Ka Den, wanted with a cash reward of (Pesos)350,000.00, his wife
(b) Letesia Haydee P. Antonio, alias Ka Letty, wanted with cash reward of (Pesos)200,000.00.
That, on the intellegence (sic) finding of the Philippine National Police, your brother and sister-in-law are also wanted dead or alive by their former comrades in the Communist Party of the Philippines and they will be liquidated by the Liquidation Squad of the CPP, New Peoples Army.
Denvy, according the report now file in my office, your brother and wife are already out of the country and stays in your parents in the United States of America. Advice them not to come back home for their safety, untill further advice from my office.
I am giving you this confidential info because of your leadership and the help you gave me in the last election, with out your help I am not the Mayor now in our Municipality.
Truly yours,
ALFREDO P. AVENA
Mayor"
"Dear Mr. David C. Antonio;17 The last letter that must be mentioned is that dated 4 October 1997 from Mr David Antonio who, by then, was living in the United States. It was written to his son, the male applicant, and, in it, Mr Antonio senior said:
This is in connection with your wanted son, DENRY A. ANTONIO, his status in the ORDER OF BATTLE have been changed, Philippine National Police is giving you 7 days from now to surrender your son and his wife to avoid the shoot to kill order.
If you need some police escort contact the nearest Police Station.
Be guided accordingly.
Col. MAXIMO A. MEJIA, PNP
Chief of Police
". . . you're an enemy in your country, you're a communist and wanted by your government dead or alive."Mr Antonio Senior also wrote in the same letter that when he took a vacation in the Philippines he was harassed by both government agents and members of the NPA.
18 The Tribunal was not impressed with either Mr or Mrs Antonio. As for Mr Antonio, the Tribunal found that his account of his association with Eddie Pineda and the NPA was implausible. The Tribunal would not accept that a senior union official and office-bearer in the NPA would confide strategic information about his organisation to a non-member, even if that non-member was a close friend. The Tribunal went on to say of Mr Antonio:
"The Applicant has stated throughout that he was not a member of the NPA and disapproved of it and its methods. He also has stated that Pineda was a murderer. It is not credible that he would then have permitted himself some years of friendship on this basis. It also is incredible that he would be so closely associated that others would regard him as an NPA member when he was not."19 The Tribunal was equally acerbic with respect to the claims of Mrs Antonio. It said that she was unconvincing in her knowledge and explanation of why the police would have a price on her head. After all, irrespective of what her husband might have done, there was no suggestion that she had any association with the NPA. The Tribunal dismissed this particular section of her evidence as "a fabricated claim".
20 There remains for consideration the correspondence that allegedly came from the Mayor and the Chief of Police. In its reasons for decision in respect of Mr Antonio the Tribunal said:
"The Applicant's credibility is further undermined by the documents purporting that he and his wife were wanted by the police and even were to be shot on sight. The Applicant was not able to remember these matters and indeed even stated at his hearing that he was not facing any charges in the Philippines. The documents themselves are not couched in terms which would reassure an inquirer of their authenticity."21 The letter that allegedly came from the Chief of Police has all the hallmarks of a very poor forgery. First, it is typed on plain paper - there is no letterhead; secondly, the quality of the typewriter and the typing were crude in the extreme. Finally it carried a rubber stamp endorsed with "Concepcion Police Department" and "Concepcion, Tarlac". But it is that type of rubber stamp that could be obtained quite easily from any stationery shop. It lacked any semblance of authenticity. In the circumstances of this case, there was no obligation on the Tribunal to verify the authenticity of these documents; it was entitled to make the observations about them that it made; they were obvious from the face of the documents: c.f. Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 560-561. It was not suggested by the applicants that the Tribunal should have made independent inquiries of the Mayor and the Chief of Police to obtain verification of the contents of their respective letters; that may have been deliberate but because the applicants lacked the benefit of legal representation, it may have been an oversight. Singh's case (see above) is also authority for the proposition that the role of the Tribunal in cases of this nature is not a passive one. For an example of a case where the failure of a Tribunal to make appropriate inquiries led to an appeal being allowed, see Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324; (1997) 81 FCR 71. However, in the present case, there was not, in my opinion, any need for the Tribunal to make independent inquiries; I have come to that conclusion for four reasons:
* The confusing and contradictory stories put forward by the applicants
* The fact that the Tribunal came to the conclusion that it could not believe their stories
* The lack of authenticity in the letters from the Mayor and the Chief of Police
* The fact that neither Mr Antonio nor Mrs Antonio gave any evidence of actual or perceived persecutory conduct in the Philippines prior to their departure for Australia.
22 This Court should exercise great care so as to avoid turning a review of the reasons of a decision-maker upon proper principles into a reconsideration of the merits of the decision. There will, however, be cases from time to time, where a mistaken finding of fact might give rise to reviewable error. For example, in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 717 Finkelstein J set aside a decision of the Tribunal in circumstances where his Honour found that the Tribunal had failed to consider rationally certain probative evidence. But I fail to see any such reviewable error in the reasons of the Tribunal in the present case. The Tribunal in its reasons for its decision said that Mr Antonio "did not make a convincing witness". Thereafter the Tribunal listed its reasons for coming to that conclusion. That was the province of the Tribunal and it is not the role of this Court to supplant those reasons unless there are exceptional reasons justifying its interference; a mere disposition on the part of the Court to come to a different conclusion is not sufficient. The High Court in Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 said that appellate courts should be slow to interfere with findings of fact made by a trial judge in view of the advantage enjoyed by him or her in hearing and seeing the witnesses, an advantage which the Tribunal enjoyed in the present case. Those remarks apply with equal force to this Court when it is reviewing a decision of the Tribunal. In Devries, Brennan, Gaudron and McHugh JJ said (at 479):
"More than once in recent years, this court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact Brunskill (1985) 59 ALRJ 842, 62 ALR; Jones v Hyde (1989), 63 ALRJ 349; [1989] HCA 20; 85 ALR 23; Abalos v Australian Postal Commission [1990] HCA 47; (1990), 171 CLR 167. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage S.S. Hontestroom v S.S. Sagaporack [1927] AC 37 at 47 or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable Brunskill (1985), 59 ALJR at 844; 62 ALR at 57."23 There was no evidence before the Tribunal that pointed to the applicants - or either of them - being specific targets of any instance of harassment that would be serious enough to amount to persecution for a convention reason. Putting to one side the letters from the Mayor and the Chief of Police, the only piece of evidence that might have been of any assistance to the applicants was the letter from their daughter that referred to two men who were looking for the applicants and who were prepared to pay money in return for being given their addresses. But why were the men looking for the applicants? Given that the applicants were not subjected to any harassment or intimidation from any source before they left the Philippines and given that there is no acceptable evidence that, subsequent to their departure, new circumstances have arisen to which a Convention reason might attach, the Tribunal was entitled to conclude that if they returned to the Philippines there would be no real chance that in the reasonably foreseeable future they (or either of them) would face persecution for a convention reason.
24 In their amended grounds for an order of review the applicants have challenged numerous sections in the Tribunal's reasons; in all, there are nineteen different complaints, although some of them carry a measure of repetition. I was told that the amended application was prepared by a solicitor in an honorary capacity but the applicants did not have the benefit of legal representation at the hearing before this Court; I did however permit their friend Dr Roman to speak on their behalf. Unfortunately, Dr Roman's written and oral submissions were highly emotive and amounted, without justification, to an unrestrained attack upon the character and integrity of Ms Janet Wood (the Member who constituted the Tribunal). In his written submissions he went so far as to say:
"...the Tribunal has manipulated evidence and substituted assumption to make a case which supports the Immigration decision and its decision is therefore neither impartial nor credible. Wood could not have shown less regard for the Antonios' plight than she has done in this case."25 In the original application for an order of review, the applicants had alleged bias on the part of the Tribunal. In the amended application that ground had been removed but Dr Roman raised it once more when making his submissions on behalf of Mr and Mrs Antonio. I do not consider that a reading of the transcript and the reasons for decision points to the slightest suggestion of bias. Indeed, it would seem from what was elicited orally during the course of the hearing that the applicants or Dr Roman (I do not know whom) misunderstood the nature and effect of an advice under s 424 of the Act that the Tribunal was not able to come to a conclusion in favour of the applicants on the papers. They thought that this was some form of pre-judgmental statement. But no form of bias, actual or otherwise, is made out in such circumstances; it does not even mean that the Tribunal has formed a preliminary view about the application.
26 Having read the transcript of the proceedings before the Tribunal and the Tribunal's two sets of reasons I am satisfied that the claim of bias is an unfair and wholly inaccurate allegation. Dr Roman's difficulty - and the difficulty facing Mr and Mrs Antonio - is that the Tribunal did not accept them as witnesses of truth; Dr Roman, in the composition and presentation of his arguments failed to appreciate this. He also failed to appreciate the role of this Court. This hearing is not a rehearing such that the judge may make fresh findings of facts and contrary decisions about the credibility of witnesses. With some exceptions, this Court acts only as a Court of review; its limited role restricts it to an examination of the proceedings before the Tribunal so that it may assess whether the Tribunal erred as a matter of law in one of the areas identified in the Act.
27 It is true, as Dr Roman pointed out, that there are some errors in the Tribunal's reasons. For example, the Tribunal stated that Mr Antonio indicated that "he had no tertiary qualifications". But at p 6 of the transcript before the Tribunal, Mr Antonio did say that he had graduated from university in 1980 in clinical psychology. However, such an error could not possibly justify this Court interfering with the Tribunal's decision. Another like error occurred when the Tribunal said in its reasons in respect of Mrs Antonio's application:
"The applicant attached a number of untranslated letters from relatives still in the Philippines."There was only one such letter and that was from the applicant's daughter; the remaining letters were in English.
28 There were other examples of small errors - the Tribunal referred to the applicants visiting Australia for the original purpose of visiting Mrs Antonio's sister but, apparently, it was a cousin. I consider that it is unnecessary to descend into further detail. The mistakes to which Dr Roman referred were of an inconsequential nature. The approach that this Court is to take, when reviewing the decision of the Tribunal, has been spelt out by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Su Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272:
"These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, 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."29 Dr Roman was very critical of the way in which the Tribunal had purportedly relied on information that pointed to some sort of reconciliation between the Philippine authorities and the CPP. In particular the Tribunal referred to a report from Reuters Business Briefing dated 2 April 1998 that President Fidel Ramos had ordered the military to suspend operations against communist rebels between 1 April and 30 June 1998 in order to encourage the latter's participation in forthcoming elections. The Tribunal also quoted from earlier Reuters' reports in February and March 1998 on the same subject. They were also couched in the same optimistic vein. These reports led the Tribunal to conclude:
"As indicated above, there is an amnesty in place for NPA members and there have been peace accords signed between the government and the Sison-led faction of the leftist opposition."In response to this Dr Roman said in his written submissions:
". . . to our awareness these are false, there was no amnesty for the Antonios, and no peace accords have yet been signed, and there is no evidence to support these assertions by Wood."30 The Tribunal is not bound by the rules of evidence: see par 420(2)(a) of the Act and is entitled to obtain such evidence as it considers necessary: par 425(1)(b) of the Act. But the Tribunal must act - and can only act - on the information that is before the Tribunal or that is otherwise available to it at the time of the hearing. It is a futile exercise for a disappointed litigant subsequently to make a bare assertion from the floor of the Court that reports to which the Tribunal referred in its reasons were false; and of course the Tribunal never suggested, in the magnitude of the dispute between the Government and guerillas, that there was any reference to a specific amnesty in favour of Mr and Mrs Antonio.
31 In dealing with Mrs Antonio's application, the Tribunal said that it had formed the opinion that Mrs Antonio did not leave the Philippines for fear of persecution. Dr Roman submitted that the case for both applicants was that their fear of persecution first arose during their holiday in Australia when word filtered through that strange men were looking for them. I see no reason why the status of refugee must exist at the time when an applicant leaves his or her country. Events may occur afterwards that could, in appropriate circumstances, make an expatriate a refugee in the Convention sense - a change of government as a result of rebellion or revolution is an obvious example. But that is not the position here. Mr and Mrs Antonio initially presented themselves as refugees in Australia upon the basis - so they claimed - that they left the Philippines as refugees; it did not help their cause to change their story. Obviously it was a material factor influencing the Tribunal in its decision that it could not accept them as witnesses of truth.
32 The grounds upon which this Court may entertain an application for review of a Refugee Review Tribunal are those that are set out in the seven paragraphs of subs 476(1) of the Act. They are as follows:
"476 (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:Subsection 476(2) expressly states that a breach of the rules of natural justice and a decision involving an exercise of a power that is so unreasonable that no reasonable person could have so exercised that power, are not reviewable grounds. However, in addition to the provisions of s 476, there is the requirement in par 420(2)(b) that states that the Tribunal, in reviewing a decision must act "according to substantial justice and the merits of the case". In Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 Davies J was of the opinion that s 420 describes procedures with which the Tribunal is bound to comply; he said that a breach of them would be a ground of review under subs 476(1) of the Act (p 624). Burchett J agreed saying that the actual language of ss 420 and 425 were apt to raise a case under par 476(1)(a) of the Act (p640). Whitlam J found himself unable to agree with these views but did not elaborate further (p681). Weinberg J noted in Inderjit Singh v Minister for Immigration and Multicultural Affairs (unreported, judgment delivered 29 October 1998) that
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the regulations;
(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;
(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;
(f) that the decision was induced or affected by fraud or by actual bias;
(g) that there was no evidence or other material to justify the making of the decision."
in Sun v Minister for Immigration and Ethnic Affairs (see above) a majority of the Full Court had "effectively determined that the views of the majority in Eshetu should be followed by the judges of this court, at least until the High Court has finally resolved the question whether those views are correct": see also Calado v Minister for Immigration and Multicultural Affairs (Moore, Mansfield and Emmett JJ; unreported, judgment delivered 2 December 1998).
33 The Minister has challenged the decision in Eshetu in the High Court but, in the meantime, I am bound by it and by the Full Court decision. As it happens, I do not feel that I need be concerned with the outcome of the appeal to the High Court because I have come to the conclusion that, viewed in the best possible light for the applicants, they have no cause to complain about the manner in which the Tribunal conducted itself. I will return to this subject in more detail when considering the applicants' individual complaints. However, before dealing with those complaints there are two procedural matters that must be mentioned. The first of them related to an affidavit that Mr Antonio had affirmed for the purpose of these proceedings; the second concerned a complaint about the quality of the translating and interpreting services in the Tribunal.
34 Dr Roman applied for leave to tender an affidavit of Mr Antonio in which he deposed, among other things, to a concern "that the Tribunal may have breached the confidentiality of our application by sending this letter to the Philippines and thereby revealed our location to the Philippine authorities." The letter to which he referred was the alleged letter from the Chief of Police. I refused to receive the affidavit. It did not contain any information that would support such a grave allegation. I invited Dr Roman to explain why Mr Antonio would have made such an allegation; he could only answer that Mr Antonio was fearful that it might have happened.
35 At a stage in his submissions, Dr Roman stated that serious mistakes occurred in the translation of the proceedings before the Tribunal and the preparation of the transcript of the proceedings. The tape recordings of the Tribunal hearing had been obtained from the Tribunal and made available to the applicants and their advisers. Dr Roman applied to tender the affidavit of Fele Mann, a qualified Filipino language interpreter and translator. Having stated that she had listened to the tapes and read the transcript of the proceedings before the Tribunal she said:
"I am able to advise the Court as a result that the transcript is neither a true nor complete interpretation of what is spoken in Filipino on the hearing tapes."Such a deposition serves no useful purpose whatsoever. It is subject to two criticisms. First, it fails to particularise the errors in the transcript. Secondly, even if there were errors, it fails to establish that they were of such magnitude as would justify this Court intervening.
36 I move now to the grounds of complaint as contained in the applicants' amended application. The first ground that was advanced on behalf of the applicants was that the Tribunal failed to act "according to substantial justice and the merits of the case": see par 420(1)(b) of the Act. That ground was further developed by allegations:
* that the Tribunal failed to afford the Antonios any or any proper opportunity to provide relevant evidence
* that the Tribunal failed to afford Mr Antonio the opportunity to provide evidence of his tertiary qualifications
* that the Tribunal failed to arrange for adequate interpreting or translation at the hearing resulting in a transcript that was "seriously flawed incorrect and erroneous in numerous important respects . . ."
37 A reading of the transcript of the proceedings before the Tribunal does not support the complaint that the applicants were not afforded the opportunity to provide their evidence. The proceedings commenced with the Tribunal giving the applicants a short explanation of the way in which the proceedings would be conducted. Dr Roman was present as was the applicants' witness Mrs Fele Man. Mr Antonio was first questioned then Mrs Antonio and finally Mrs Fele Man was permitted to read a prepared statement which was a summary of what she had been told by the applicants about their alleged refugee status; it was also a very commendable character reference for each of the applicants. After Mrs Fele Man had read her statement, the Tribunal invited Dr Roman to make his submissions. They were short but he had the opportunity at that stage to raise any issue that might have been of concern - not only as the state of the evidence but also with respect to any problems with the interpreter. Dr Roman had nothing to say on those subjects. After Dr Roman had concluded his submissions the Tribunal then said:
"MS WOOD: Okay, thank you. Now, Mr and Mrs Antonio, I want to give you any further opportunity, since you have had a bit of time to think, is there anything else that you think you have not told me or put any emphasis on?38 I have earlier noted that the Tribunal made a mistake about Mr Antonio's tertiary qualifications, but it was not a mistake that affected the outcome of the proceedings before the Tribunal; it can be ignored. There is nothing further that need be said about the quality of the translation service. It is apparent from a reading of the transcript that both Mr and Mrs Antonio have some knowledge of the English language but that they were quick to call in aid the interpreter as and when they felt that they needed assistance.
THE INTERPRETER: I just want to clarify that it is - if we went back to the Philippines it is not only Eddie Kunado (sic) who would be after me but the military as well.
MS WOOD: And, Mrs Antonio, is there anything else you want to tell me?
MS ANTONIO: No."
39 In my opinion, the three complaints to which reference has been made have either not been made out or do not warrant intervention by the Court. Indeed it seems to me that it would be proper for me to make a positive observation that a fair reading of the transcript satisfies me that the Tribunal acted "according to substantial justice and the merits of the case."
40 The next complaint was that the Tribunal failed to supply reasons for its decisions as required by s 430 of the Act. The particulars of that complaint were three fold. It was alleged that the Tribunal:
* found that Mr Antonio's account of his recruitment by and involvement with the New People's Army was "contrary to information on the recruitment of people into the NPA" but that the Tribunal failed to set out any or any proper particulars of such alleged information;
* found that official documents from the Philippines submitted by the Applicants were "clearly false", but failed to set out any reasoning or findings of primary fact leading to that conclusion;
* found that Mr Antonio did not hold any political opinion such as to put him at risk of persecution, and further found that the police did not impute any such political opinion to him, but failed to set out any reasoning or findings of primary fact leading to that conclusion.
41 These particulars are misconceived. The findings of the Tribunal that required reasons were, first, the findings that the two applicants were not entitled to protection visas because, secondly, of findings that they did not have refugee status. Some of the reasons in support of those findings were the Tribunal's contrary information about the recruitment policy of the NPA, the Tribunal's conclusion that certain documents were false and because, in the opinion of the Tribunal, Mr and Mrs Antonio lacked political involvement. The Tribunal's decisions were adequately supported with reasons.
42 The next ground of complaint was that the Tribunal erred in law in that it failed to interpret the "real chance" test for assessing the likelihood of persecution. In support of this ground of complaint Dr Roman referred to and relied on the evidence of Mr and Mrs Antonio and the letters - particularly the letters from the Mayor and the Chief of Police - as strong indicators that there was a "real chance" of persecution if the applicants were returned to the Philippines. The difficulty with this submission is that it lacks a base because the Tribunal did not believe the evidence of Mr and Mrs Antonio and dismissed the two letters saying that "some of the documents submitted by him are clearly false".
43 The next two grounds also fail because of the refusal of the Tribunal to accept Mr and Mrs Antonio as witnesses of truth. They were that the Tribunal:
* failed to interpret the expression "political opinion" correctly or, in the alternative, failed to apply the appropriate test for "political opinion" correctly to the facts as found. It was claimed that the Tribunal failed to deal with the Applicants' case as one of political opinion imputed to them by Police and military authorities in the Philippines. This imputed political opinion had allegedly arisen by reason of their close association with the senior NPA commander, Eddie Pineda, and also because of a likelihood of danger from their former NPA associates who would fear or assume that the Applicants had fled the Philippines after betraying NPA secrets;
* failed to address the fundamental question of whether the Applicants had a well-founded fear of persecution for a Convention reason because the Tribunal said:
"If, on the other hand, (the First Applicant) did know of persons involved in violent or other serious crimes, then he has a responsibility as a citizen to report these to the appropriate authorities. Even if there is some risk of harm to the person who informs the authorities about a crime, that does not, of itself, make that person a refugee."44 The final ground of complaint alleged that there was no evidence or other material to justify the making of the decision in relation to ten identified subject matters. I will set out those ten subject matters and my comments on them but, before doing so, it is appropriate to remember that many of these complaints are affected by the Tribunal's finding that it could not rely on the evidence that Mr and Mrs Antonio had given before the Tribunal.
* The finding that official documents from the Philippines submitted by the Applicants were "clearly false";
(a) In my opinion it was open to the Tribunal to make this finding. It stated:
"The documents themselves are not couched in terms which would reassure an inquirer of their authenticity. The reference in the document dated 29 December 1996 strains credulity with its reference to the Applicant and his wife as having NPA-style nom-de-plumes. The Applicant's wife has never made any claims that she was so closely associated with NPA cadres as to acquire such a reputation"
* The finding that the First Applicant was a psychologist by profession but "had no tertiary qualifications";
(b) I have already expressed my view on this subject but I should add that the Tribunal's error was an observation and not a finding that was material to its decision.
* The finding that a senior NPA commander would not "tell all" to a non-NPA citizen who lived 90 kilometres away;
(c) This was an inference that was open to the Tribunal.
* The finding with respect to the rules or practices the NPA may follow concerning membership and the extent of involvement with NPA activities by persons not being members;
(d) The Tribunal had available to it information that it was entitled to refer to and rely on. This included a summary of the Philippine situation as contained in the United States Department of State Country Report on Human Rights Practices for 1997. The Tribunal also referred to a series of Reuters Business Briefing Electronic Reports. These reports entitled the Tribunal to make the observations and findings relating to the NPA that were contained in its reasons.
* The finding that it is "implausible that Pinedo, allegedly a senior union official, would need to borrow (Mr Antonio's) car";
(e) This was an inference that was open to the Tribunal.
* The finding that it is implausible that Mr Antonio's "would not even know (Pinedo's) address";
(f) This was an inference that was open to the Tribunal.
* The finding that Mr Antonio's account of his recruitment by and involvement with the New People's Army was "contrary to information on the recruitment of people in the NPA";
(g) For the reasons given in answer to par (d) above, this finding was open to the Tribunal.
* The finding that the First Applicant holds no political opinion which might put him at risk with the authorities;
(h) This finding came about as a direct result of the Tribunal not accepting Mr Antonio as a witness of truth.
* The finding that the police did not impute any political opinion to Mr Antonio which might put him at risk with the authorities;
(i) It was open for the Tribunal to make such a finding because the Tribunal did not believe Mr Antonio's evidence. The Tribunal considered that his account of his association with Eddie Pineda and the NPA was implausible and it found that the documents purportedly claiming that the applicants were wanted by both the police and the NPA were false. Furthermore, the Tribunal considered that even if it believed the Applicants' story, which it did not, on the evidence of Mr Antonio, he was not a member of the NPA, he was opposed to its methods and he had not been wanted by the police. There was no evidence sufficient to satisfy the Tribunal that Mr Antonio held political opinions that might put him at risk with the authorities or that the police imputed any such political opinion to him.
* The finding that information "that local officials can be paid off by the NPA or other groups is common information in the Philippines";
(j) The Tribunal made this statement in its reasons but it does not amount to a finding. The source for the statement was not identified but, as it is not a matter that was material to the outcome of the proceedings before the Tribunal, nothing turns on its presence in the reasons.
45 In Chan's case (see above) the High Court discussed the need for an applicant to establish that his or her fear of persecution for a Convention reason is a "well-founded" fear. Mason CJ said at 389:
"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% chance of persecution occurring."46 In Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 576 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%. 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% 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."47 The Tribunal did not make a finding whether Mr and Mrs Antonio faced a real chance of persecution if they returned to the Philippines. It did not need to because it disbelieved their stories. The Tribunal had recited in its decision the relevant principles to be applied and had considered that which was necessary for the determination of their claim. Because the Tribunal did not accept their stories, it was not necessary to assess the situation that might exist if they returned to the Philippines.
48 In my opinion, there is no reviewable error in the Tribunal's reason. The application is dismissed with costs. I certify that this and the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin
Associate:
Dated: 22 January 1999
|
The applicants appeared in person assisted by a friend | |
| Solicitor for the respondent: | Australian Government Solicitor |
| Counsel for the respondent: | Mr L Silvester |
| Date of hearing: | 7 December 1998 |
| Date of judgment: | 22 January 1999 |
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