Aliparo v Minister for Immigration & Multicultural Affairs [1999] FCA 79 (12 February 1999)

Last Updated: 16 February 1999

FEDERAL COURT OF AUSTRALIA

Aliparo v Minister for Immigration & Multicultural Affairs [1999] FCA 79

MIGRATION - appeal from Refugee Review Tribunal ("RRT") decision refusing refugee status - whether decision involved an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the facts as found by the RRT - whether the applicant was being persecuted because of her husband's political opinions - whether the applicant was being persecuted as a member of a "social group" - whether the applicant was being persecuted because she feared the case against her husband would be lost because of the "influence" of those charged

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

Ram v Minister for Immigration & Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565, applied

Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1996-7) 142 ALR 331, cited

EVA SANDIG ALIPARO v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 624 of 1998

O'CONNOR J

SYDNEY

12 FEBRUARY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 624 OF 1998

BETWEEN:	EVA SANDIG ALIPARO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	O'CONNOR J
DATE OF ORDER:	12 FEBRUARY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 624 OF 1998

BETWEEN:	EVA SANDIG ALIPARO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	O'CONNOR J
DATE:	12 FEBRUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for the review of a decision of a member of the Refugee Review Tribunal ("the Tribunal") dated 3 June 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

2 The grounds (as stated in the applicant's handwritten application) are:

(i) That the applicant is persecuted, threatened and harassed because her husband witnessed and then decided to expose the kidnapping of innocent citizens by high ranking officials in the Philippines.

(ii) That the applicant and her husband are persecuted because of their political opinion.

(iii) That the applicant and her husband have a right to be protected by the leaders assigned to lead and govern the security and human rights of the people in their country.

(iv) That the Tribunal did not correctly apply the law on refugees.

LEGISLATIVE CONTEXT

3 The relevant provisions of the Migration Act 1958 (Cth) ("the Act) in respect of this application are as follows:

"Application for review

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:
...
(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;
...

(2) The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power."

4 A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because she is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, she is a person who:

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

5 The applicant, in her handwritten application, seeks a declaration that she is a refugee.

FACTUAL BACKGROUND

6 The applicant is a married woman with one child and is a citizen of the Philippines. She arrived in Australia on 17 April 1996.

7 The applicant claims that her husband had discovered that a high ranking officer in the Philippines military was kidnapping citizens for ransom. She claims her husband was kidnapped by the officer in question and tortured over a period of two days. As a result he suffered contusions to his face and body. He was told not to inform on the officer in question or he would be killed.

8 The applicant says she herself was attacked by associates of the officer in question. At that time in 1996 she decided to leave the country. The officer is now on trial in relation to criminal offences in the Philippines.

9 The applicant said she would face severe problems if she were to return to the Philippines before the trial was concluded.

10 The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 7 June 1996. The delegate's decision refusing the application was made on 24 April 1997. The applicant applied for a review of that decision by the Tribunal on 22 May 1997. The application for review was rejected by the Tribunal and her application for protection visa refused on 3 June1998.

TRIBUNAL'S DECISION

11 The Tribunal made the following main findings.

12 The Tribunal accepted the applicant's claim that she fears to return to the Philippines because she and her family have been threatened and harassed and because her husband's allegations against high ranking military officers. However the Tribunal did not accept that this fear was based on reasons related to the Refugees Convention. The reasons were related to criminal activity in the Philippines.

13 The Tribunal accepted the applicant's claim that her husband had been kidnapped by the officers in question, being consistent with country information, and it also accepted that the applicant was the subject of attack by the officers who had been accused by her husband. However the Tribunal again found that these occurrences were not the result of Convention related persecution.

14 The Tribunal accepted that the involvement of the applicant's husband in the case in question may cause her difficulties if she returns to the Philippines and sympathised with the applicant's predicament, however it could not agree that the difficulties she would face would amount to a real chance of persecution in terms of the Refugees Convention.

15 The Tribunal agreed with the applicant's assessment that the objective of the officers accused in the case against her husband is to force him to withdraw the case and that he has become the focus of their attention in her absence but did not agree that the problems associated with this development amounted to persecution in terms of the Refugees Convention.

16 The Tribunal further agreed with the applicant's assessment that the political and economic climate in the Philippines in uncertain following the election of a new President but did not accept that this uncertainty would lead to a situation in which the applicant would a face a real chance of persecution.

17 The Tribunal concluded:

"In summary the Tribunal accepts much of the evidence given by the applicant, but does not accept that this evidence will lead to the applicant facing a situation in which she will suffer persecution in terms of the Refugees Convention."

18 Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.

19 At the hearing of this matter the applicant submitted that she was being persecuted for three reasons:

(i) because of her husband's political opinions (which she shares),

(ii) because, as his wife, she is a member of a "social group", namely her family,

(iii) because she fears the case against the officer will be lost as the officer has "influence". Thereafter her and her family's life will be in danger.

20 There is no challenge to the factual background of this applicant, ie. she has been separated from her husband and family for nearly three years because of fear of reprisal from persons in the Philippines. However, the issue before the court is whether, on the facts as found by the Tribunal, the applicant was, and is, a refugee within the meaning of the International Refugees Convention and Protocol. In Ram v Minister for Immigration & Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565, (a decision of the Full Court of the Federal Court) Burchett J, with whom the other members of the bench agreed, said, at 568:

"Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word "persecuted", the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is "membership of a particular social group". If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possess, the application of the Convention is not attracted, so far as it depends upon "membership of a particular social group". The link between the key word "persecuted" and the phrase descriptive of the position of the refugee, "membership of a particular social group", is provided by the words "for reasons of" - the membership of the social group must provide the reason. There is thus a common thread which links the expressions "persecuted", "for reasons of", and "membership of a particular social group". That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase "for reasons of", and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group."

21 Applying this statement or principle to this application, one must conclude that this applicant does not face persecution because she is a member of her family (even if it is accepted as a social group) but because of her husband's act in reporting a possible crime. There is no characteristic, on the evidence available to the Tribunal, of this applicant's family which distinguishes them from society at large, other than the fear of persecution or retaliation, and as McHugh J said in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1996-7) 142 ALR 331 at 358:

"The concept of persecution can have no place in defining the term "a particular social group"".

22 The characteristics must "pre-exist" the persecution. The applicant's submission that her husband's actions in reporting a crime were "political" was not accepted by the Tribunal. There is in my opinion no legal error demonstrated in so doing.

23 The matter of the outcome of the trial in the Philippines and its possible effect on the applicant was not raised by her at the Tribunal and would need, before any court could review it, to be considered by an appropriately constituted Tribunal on its merits. It cannot be taken into account in this application and made a basis for judicial review.

24 None of the grounds stated in the application are made out. Whatever the unfortunate situation in which this applicant finds herself it does not provide her with refugee status and the application is dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor.

Associate:

Dated: 12 February 1999

Applicant:	Self-Represented
Counsel for the Respondent:	P Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 February 1999
Date of Judgment:	12 February 1999