CATCHWORDS

ADMINISTRATIVE LAW - Procedural Fairness - Refugee status - whether Tribunal applied the correct test to evaluate whether the applicant had a "well-founded fear of persecution" - whether the Tribunal expressed itself in uncertain terms 

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Convention Relating to the Status of Refugees: Art1

Migration Act  1958 (Cth): s4

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; followed.

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; applied.

Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223; discussed.

Wu Shan Liang v Minister for Immigration and Ethnic Affairs (Full Federal Court, unreported, 23 June 1995); applied.

Powell v Lenthall (1930) 44 CLR 470; distinguished.

RUPERTO OBEJAS JR v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No NG 581 of 1994

CORAM:  HILL J

PLACE:  SYDNEY

DATED:  16 AUGUST 1995

IN THE FEDERAL COURT OF AUSTRALIA  )

                                   )

NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 581 of 1994

                                   )

GENERAL DIVISION                   )

          ON APPEAL FROM A DEPUTY REGISTRAR OF THE

                   REFUGEE REVIEW TRIBUNAL

              BETWEEN:      RUPERTO OBEJAS JR

                             Applicant

                  AND:      MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

                             First Respondent

                             KAY RANSOME sitting as REFUGEE REVIEW TRIBUNAL

                             Second Respondent

CORAM:    HILL J

PLACE:    SYDNEY

DATED:    16 AUGUST 1995

                      MINUTES OF ORDER

THE COURT ORDERS THAT:

     (1)  The appeal be dismissed.

     (2)  The applicant pay the costs of the first respondent.

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  )     No NG 581 of 1994

                                   )

GENERAL DIVISION                   )

          ON APPEAL FROM A DEPUTY REGISTRAR OF THE

                   REFUGEE REVIEW TRIBUNAL

              BETWEEN:      RUPERTO OBEJAS JR

                             Applicant

                  AND:      MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

                             First Respondent

                             KAY Ransome sitting as REFUGEE REVIEW TRIBUNAL

                             Second Respondent

CORAM:    HILL J

PLACE:    SYDNEY

DATED:    16 AUGUST 1995

                    REASONS FOR JUDGMENT

          The applicant, Mr Obejas, seeks judicial review pursuant to the provisions of the Administrative Decision (Judicial Review) Act (1977) (Cth) ("the ADJR Act") of a decision of the Refugee Review Tribunal constituted by Ms Ransome, the second respondent.  Ms Ransome submitted to any order which the Court might make except as to costs.

          Mr Obejas is a national of the Republic of the Philippines.  He entered Australia on 29 April 1992 as a visitor and was granted an entry permit valid until 30 May 1992.  Upon the expiration of that entry permit he remained in

Australia without the grant of a further permit.  On 16 April 1993 he applied for refugee status in Australia.  In due course his application was considered by a delegate of the Minister and rejected.  He applied to the Tribunal to review that decision.

          Having regard to the way in which the matter was argued before me it is unnecessary to set out in detail the factual matters relied upon by Mr Obejas in support of his application.  Put shortly, the case for Mr Obejas was that he feared that if he should return to the Philippines he would face persecution from the New People's Army ("NPA").  He relied particularly upon demands for payment of tax made by the NPA in respect of a business with which he was concerned in 1983 and later in 1984 and a later demand in 1991 as well as the murder of his father which he claimed had been brought about by the NPA.  In oral evidence he referred to continuing threats in 1991 which had not been mentioned when he had been earlier interviewed by a departmental officer.

          In accordance with Article 1 of 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 (made relevant by s4(1) of the Migration Act (1958) (Cth)), a refugee 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 former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

          The principal issue before the Tribunal was whether Mr Obejas had, within the meaning of the Convention definition, a "well-founded fear of persecution" having regard to the evidence before the Tribunal.  The Tribunal properly referred to the decision of the High Court in Chan Yee Kin v Minister for Immigration Ethnic Affairs (1989) 169 CLR 379 for guidance as to the meaning of the phrase "well-founded fear of persecution".  Of that case the Tribunal said:

          "In Chan's case the Court addressed the meaning of the phrase `well-founded fear of persecution'.  The Court held that the phrase encompassed both a subjective fear of persecution on the part of the applicant and an objective foundation for that fear.  It held that a fear of persecution is well-founded if there is a `real chance' of being persecuted on return to the country of nationality (at 389 per Mason CJ; at 398 per Dawson J; at 407 per Toohey J; at 429 per McHugh J).  A `real chance' is one that is `substantial, as distinct from a remote chance' (at 389 per Mason CJ), or one that is not `remote or insubstantial' (at 407 per Toohey J) or `a far-fetched possibility (at 429, per McHugh J)."

          The Tribunal then proceeded to discuss some of the evidence noting that it was mere speculation that Mr Obejas' father had been killed by the NPA and regarding certain of his evidence as being "implausible".  Ultimately the Tribunal said:

          "The Tribunal considers it implausible that the applicant would be the subject of intermittent threats from the NPA over a period of some nine years.  None of these alleged threats ever eventuated into any direct action by the NPA against the applicant.  The Tribunal regards the applicant's statement that the retail business may have closed down due to further threats as merely speculative.  The applicant has had no contact with the friend to whom he leased the business.  The Tribunal also does not accept that the applicant's wife moved due to harassment by the NPA.

          In the light of all the evidence available in this case the Tribunal finds that there is not a real chance, as defined by the High Court in Chan, that the applicant would face persecution if he were now to return to the Philippines."

          Accordingly, the Tribunal affirmed the decision under review.

          On the day of the hearing counsel for Mr Obejas sought and was granted leave to amend the application to the Court.  Leave was not opposed by counsel for the Minister.  As amended the application alleged that a breach of the rules of natural justice had occurred in connection with the making of the decisions in:

          "(a)the Tribunal did not evaluate the chance of persecution.

              Particulars:  finding intermittent threats over nine years "implausible" and then proceeding directly to a finding of `no real chance'.

          (b)  Refusing to accord the applicant the full benefit of the Department document DORSINFO PHL00260 of 20 August 1992 relied upon by the Tribunal.

              Particulars:  failure to include the applicant's father in any extended class of persons upon whom sanctions might be executed."

          Two general grounds contained in the original application remained but it was conceded that these grounds added nothing to the more particular grounds which were substituted and which I have set out above.  Accordingly there is no need to consider them separately.  Ground (b) was not addressed in oral argument and when later counsel for the applicant was given the opportunity to deal with it in written submissions he indicated that he did not wish to do so.

          The submissions on ground (a) were put in two ways.  First it was submitted that the word "plausible" had a range of meanings, one of which was related to probabilities.  So it was submitted that if the Tribunal had concluded that there was an improbability it was required in coming to its conclusions to evaluate the chance of persecution.  Instead it proceeded from probability to possibility or chance without such an evaluation.

          The second way the submission was put was that having regard to the range of possible meanings of the word "implausible" the Tribunal had expressed itself in uncertain terms and it was impossible to proceed from uncertainty to an evaluation of "real chance".

          It may perhaps be correct that in different contexts the word "implausible" has a range of meanings as submitted.  But the meaning of a word can not be determined in abstract.  It clearly depends on the context.  The fact that a word has a range of meanings does not mean that in a particular context it is capable of having that same range of meanings.

          The Macquarie Dictionary 2nd edition defines "implausible" as follows:

          "adj. not plausible; not having the appearance of truth or credibility".

          That hardly suggests a large range of meanings.  Indeed the dictionary meaning accords with the sense in which the word was used by the Tribunal.

          The Shorter Oxford English Dictionary defines the word as follows:

          "1. Not worthy of applause; unacceptable.  WARNER.  2. Not having the appearance of truth, probability, or acceptability; not plausible 1677".

          Apart from the reference to "not worthy of applause", a reference clearly irrelevant to the present context, the Oxford definition does not differ materially from that contained in the Macquarie Dictionary.

          Perhaps with a view to making the point more strongly, reference was made to the Oxford Illustrated Dictionary of 1984 where the word "plausible" is defined in the sense of:

          "(of arguments etc.) Seeming reasonable or probable; (of persons) fair-spoken (usu. implying deceit)."

          I would prefer the meaning given in the Macquarie Dictionary, both as illustrating Australian usage and as reflecting the context in which the Tribunal was using the word.

          The Legal Thesaurus (2nd ed) Macmillan Publishing Company, New York (also referred to by counsel for Mr Obejas), does give a wider range of words, although no doubt the difference between a dictionary and a thesaurus accounts for the difference.  Of "implausible" it gives:

          "beyond belief, contrary to experience, doubtable, doubtful, dubitable, hard to believe, hardly possible, improbable, inconceivable, incredible, open to doubt, open to suspicion, questionable, suspicious, unbelievable, unconvincing, unheard of, unimaginable, unlikely, unsubstantiated, untenable, unthinkable."

          It was submitted that in so far as the Tribunal was expressing a matter of probability in using the word "plausible" it did not accord the applicant a fair hearing to move from this concept of probability to the concept of no chance without a process of evaluation.  This process of evaluation was, it was said, necessary to the Tribunal's reasoning.

          If I understand the submission, and it may be thought to be elusive, it gives far too much weight to the Tribunal's use of language.  The reasons of the Tribunal are not a Statute.  They are not to be parsed and analysed as if they were.  That point has been made in numerous judgments.  For example, in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 the Full Court said:

          "The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts ... The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

          It seems to me that no error has been committed by the Tribunal.  Its reference to plausibility was in the context of events which had occurred in the past.  In the passage complained of the Tribunal rejected the evidence which Mr Obejas had adduced of alleged past persecution.  It concluded by extrapolation from the past that there was not a real chance of persecution at the time of its determination.  In doing so it applied the test which the High Court had set out in Chan and used the words "real chance" in the sense in which they had been used by the High Court.  There is nothing to suggest that the Tribunal in any way misunderstood the appropriate test to be applied to determine whether there was a well-founded fear of persecution.

          Counsel for the Minister referred me to two decisions in which Full Courts of this Court have discussed what was said in Chan and the meaning of the expression "a real chance".  In Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223 Sheppard J, with whose judgment Black CJ and Lockhart J both agreed (the Chief Justice adding additional reasons of his own) upheld a decision of Wilcox J at first instance that a decision that there was not a well-founded fear of persecution should be set aside.  It was said that the decision-maker had acted upon the basis that the question whether there was a real chance required there to be a finding of a chance on the balance of probabilities.  However, as the judgment of
McHugh J in Chan made clear, there could be a real chance of persecution occurring even where that chance was as remote as a ten percent chance.

          Subsequently in Wu Shan Liang v Minister for Immigration and Ethnic Affairs (unreported, 23 June 1995) another Full Court (comprising Sheppard, Lee and Carr JJ) considered the task involved in determining whether there was "a real chance" and again concluded that the decision-maker had erred in applying a test of probability of persecution rather than considering the question by reference to whether the chance was one which was substantial as distinct from remote or insubstantial.

          In my view the sort of issues discussed in these cases does not arise here.  Nothing in the Tribunal's reasons suggests that it determined the issue of "real chance" by reference to probabilities.  The Tribunal set out the appropriate tests from Chan and purported to apply them, having regard to the rejection of the evidence which Mr Obejas had presented about alleged past persecution.  It is simply not correct to say that the Tribunal made no evaluation of the chance of future persecution.  It did and found, using the words of the High Court, that there was not a real chance.  In so doing it did not err.

          The second way the argument is put is likewise untenable.  When using the word "implausible" it is not true that the Tribunal expressed itself in uncertain terms.  Nothing could have been more certain than the rejection of Mr Obejas' evidence or the ground for it.  It may perhaps be true in a particular context that uncertainty can not lead to an evaluation: cf Powell v Lenthall (1930) 44 CLR 470 at 475.  However, in the present case there was neither uncertainty nor lack of evaluation.

          As already indicated, ground (b) was not pressed, in my view, correctly.

          Two passages from the Department document were referred to by the Tribunal.  One had been expressly put to Mr Obejas by the Delegate and answered by Mr Obejas.  The other passage was, if anything, favourable to Mr Obejas' case.  It certainly did not found any conclusion adverse to his interests.  In these circumstances it is hard to see how any denial of natural justice could arise.

          I would accordingly dismiss the appeal with costs.

I certify that this and the preceding ten (10) pages

are a true copy of the Reasons for Judgment herein

of his Honour Justice Hill.

Associate:

Date:  16 August 1995

Counsel and Solicitors       J Parnell instructed by

for Applicant:               Belen Oag

Counsel and Solicitors       G Johnson instructed by

for Respondents:             the Australian Government Solicitor

Date of Hearing:             8 August 1995

Date Judgment Delivered:          16 August 1995