FEDERAL COURT OF AUSTRALIA

CR v Minister for Immigration & Multicultural Affairs [2000] FCA 255

CR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1112 OF 1999

LEHANE J

10 MARCH 2000

SYDNEY

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.

REASONS FOR JUDGMENT

1                     In this application for relief under Pt 8 of the Migration Act 1958 (Cth)the applicant claims the following relief:

“1.       An order to set aside the decision of the Respondent and the Refugee Review Tribunal.  This matter be remitted and be reconsidered according with law.

2.         An order to be represented by a Solicitor under Order 80 (FCA), according to article 16 of the UN Conventions for Refugees, or

3.         An order of review of written documents ‘without oral hearing’ by the Federal Court of Australia.”

2                     The decision referred to in the first claim for relief is one which the Refugee Review Tribunal made on 2 September 1999 by which the Tribunal affirmed a decision not to grant protection visas to the applicant and his wife (the present application is by the applicant above, but I do not think anything turns on that).  I shall turn to the Tribunal’s decision shortly.  The second and third claims for relief are made in the alternative.  The second claim was not raised at the directions hearing on 5 November 1999 (and I did not advert to it).  In any event, however, and assuming, without deciding, that it may in some circumstances be appropriate for the Court to entertain claims of that kind, this was not in my view an appropriate case for a reference under O 80 r 4(1) of the Federal Court Rules.  Solicitors acted for the applicants before the Tribunal, though not on the application for judicial review.  As will appear, the case is one which, in my view, does not, in the context of the relief which the Court has power to grant under Pt  8 of the Migration Act, raise any question of particular complexity or difficulty.  As for the third claim for relief, directions of the usual kind were made including an order setting the matter down for hearing, and the application proceeded to a hearing in the ordinary way.  The applicant filed an affidavit and written submissions.  He appeared in person and made additional submissions orally, through an interpreter.  He also tendered some further documents, which I received subject to relevance.  In preparing his written submissions the applicant had assistance, though not the assistance of a lawyer or migration agent; the submissions demonstrate some familiarity with the Refugees Convention (the 1951 Convention relating to Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees) and with some of the relevant authorities and the applicable principles.

The applicant’s claim

3                     The applicant and his wife are citizens of Peru.  They arrived in Australia on 26 August 1997.  Their applications for protection visas were refused on 24 March 1998; and, by the decision now under challenge, the Tribunal upheld the decision to refuse the visas.

4                     The claims made by the applicant and his wife are recounted and discussed at length in the Tribunal’s statement of its reasons for decision.  Although the applicant challenged a number of the Tribunal’s conclusions on the evidence, he did not suggest that there was any matter which he put before the Tribunal which was not reflected in the reasons or not taken into account.  The Tribunal had before it a declaration made by the applicant in support of his primary application and a further statement of the applicant sent to the Department later; a declaration made by a neighbour in an apartment building in which the applicant had lived in Lima; a declaration of a friend of the applicant; documents relating to the applicant’s military service, certain complaints he claimed to have made to the police and certain medical treatment he had received; and a good deal of material concerning conditions in Peru.  The Tribunal heard oral evidence given by the applicant and his wife; it also heard submissions by the solicitor then acting for the applicant.

5                     The applicant’s home town was Acobamba.  He attended school from 1975 to 1985.  He then undertook compulsory military service.  Thereafter he attended San Marcos University in Lima from 1989 to 1994 and obtained a bachelor’s degree in metallurgical engineering.  Between 1995 and 1997 he was employed as an engineer.  From the commencement of his university training until his departure from Peru in August 1997 he lived in Lima.  The applicant’s parents, four sisters and two brothers remain in Peru.

6                     The applicant claimed to fear serious harm at the hands of two militant groups, the Shining Path and the Tupac Amaru Revolutionary Movement (MRTA) on account of his political opinion and also by reason of his membership of a social group comprising “former members of the Peruvian Army engaged in anti‑subversion and intelligence work” against that militant groups.  The Tribunal, though expressing some doubt about it, was prepared to accept, for the purposes of its decision, that the group described amounted to a particular social group for Convention purposes.

7                     The Tribunal summarised the applicant’s claims as follows:

“The applicant husband claimed that he and his wife were at risk in Peru from the Shining Path and the MRTA because he served his military service in the army from 1986 to 1988, and in 1987, he was an undercover officer who infiltrated a Shining Path group in Huycan, near Lima.  He claimed that he had suffered the following harm: in 1988, the MRTA and the Shining Path read out his name several times in his home town, Acobamba, as one amongst a number of people who were to be killed; in May 1990,  his two uncles were killed; in 1992, he was assaulted at university; from 1995 to 1997, he received threats, in telephone calls (1995 and 1996), and in leaflets (1995 and 1996); on 23 May 1995, the Shining Path came shouting into his apartment block and left leaflets at his door and in the corridor; in August 1996, the Shining Path wrote graffiti on the walls of his apartment block; on 12 February 1997, the applicant wife was thrown a ‘death card’ when she [was] entering the apartment block where the applicants were living; in April 1997, three people, one with a gun, tried to kidnap him when he was parking his car in his rented car space near his home, and he managed to escape by running across a busy road; and in July 1997, he was followed by three men while he was shopping at the markets near his home, and he managed to escape by running across a busy road.  He said that after the applicants left Peru in August 1997, his sister (who lived with him in the apartment in Lima where he lived, inter alia, from 1995), told him that in November 1997 and at the end of 1998, pamphlets were left outside their apartment and she had seen suspicious strangers in the building.”

8                     That distillation followed a lengthy and careful statement of the material before the Tribunal (it appears on page 28 of the Tribunal’s reasons) and the Tribunal’s commentary on some of it.  The Tribunal proceeded to discuss what it saw as discrepancies between aspects of the account given by the applicant and of evidence given by his wife, difficulties with some of the other evidence (for example, the declaration by the applicant’s friend proceeded on the basis that he was already in Australia in August 1996) and what it regarded as the improbability of some aspects of the applicant’s evidence.  Again, the Tribunal’s discussion of these matters is detailed and careful.  The Tribunal’s statement that it was “aware that its duty is to look at the claims as a whole and not to look in an overly critical way at the individual claims made by applicants” was by no means lip service only.  The Tribunal concluded its discussion as follows:

“After considering all the evidence, the Tribunal has determined the case on the basis of the following facts:  The applicant husband was a conscript in the armed forces from 1 July 1986 to 30 June 1988.  In 1987, he was trained in undercover techniques and infiltrated a Shining Path group in Huycan; a month later, his colleague was discovered to have been an infiltrator and was killed, and since the applicant husband and his colleague may have been seen together when they went to report to the army, the applicant husband thought he too might be have been [sic] recognised as an army infiltrator.  In 1988, when he was discharged from the army, members of the Shining Path and the MRTA in Acobamba, his home area, wanted to kill him because he had been in the army and because it was thought he was somehow connected to an army patrol which arrived a short time after the applicant husband returned to Acobamba.  At university, one night in 1992, fellow students who were members of the Shining Path and who had found out he had been in the army, beat him because they thought he was a spy, but when he denied this, they let him go.  In the apartment block where the applicant husband lived, the Shining Path left pamphlets, and, in August 1996, the Shining Path wrote graffiti on the walls of the block, and once, when the Shining Path delivered the pamphlets, they shouted in the corridor of his apartment block.”

9                     The Tribunal noted that the applicant had not lived permanently in Acobamba since 1986 (apart from visiting his parents in 1988).  After considering country information, however, it found that it was “remote that the applicant would be at risk today in Acobamba from the MRTA” because it is much reduced in strength and, in any event, he would not face a real chance of harm from the MRTA if he lived anywhere else in Peru.  As for the claimed threat from the Shining Path, the Tribunal accepted that, if the applicant returned to Acobamba, he might face a chance of harm from that organisation.  After further discussion of the evidence, however, the Tribunal recorded these findings:

“After considering all the evidence, the Tribunal finds that if the applicants return to Lima, they would not face a real chance of harm from the Shining Path in the reasonably foreseeable future because of the applicant husband’s membership of a social group comprised of ‘former members of the Peruvian Army engaged in anti‑subversion and intelligence work’ and/or his political opinion and/or any other Convention reason.

In any case, even if the applicants did face a real risk for a Convention reason if they remained in Lima, the Tribunal finds that if the applicants relocated to another place in Peru, away from Lima (and Acobamba), they would not face a real chance of persecution for a Convention reason.”

The Tribunal rejected, on the evidence, a claim that relocation “was not an option because the Shining Path have a network throughout Peru” which would enable it to locate and harm the applicant and his wife.

10                  The Tribunal then considered the legal principles to be applied, as follows:

“The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country.  The international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders.  Therefore, even if an applicant has a well‑founded fear of persecution in their home region, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440‑1.

However, this principle only applies to people who can genuinely access domestic protection, and for whom the reality of protection is meaningful.  If relocation is not a reasonable option in the particular circumstances, it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well‑founded: Randhawa per Black CJ at 442‑3, Beaumont J at 450‑1.”

11                  The Tribunal noted that the applicant and his wife were mature and educated and that they had work skills and experience.  It also noted that they had supportive families and that informal mechanisms existed within the Peruvian non‑governmental human rights community to aid the relocation of those who felt that they might be in danger.  The Tribunal pointed out that although Lima was by far the largest city in Peru there were other major urban centres and that the coastal zone was highly urbanised and contained the seven largest towns in the country.  The Tribunal concluded, after considering the evidence, that “relocation is a reasonable option for the applicants”.  It followed that the delegate’s decision should be affirmed.

Applicant’s submission

12                  The ground on which the applicant seeks review of the Tribunal’s decision is what he claims to be an error of law, described as follows:

“The Tribunal’s Member erred in applying Common Law Cases not similar and different circumstances to the Applicant’s case.”

13                  The submissions lodged by the applicant, amplified by his oral submissions, incorporated a number of strands.  One was an argument to the effect that the Tribunal lacked power to make a decision under the Convention because it had not been adopted as domestic law.  The Tribunal, however, does not directly apply the Convention: it applies the Migration Act under which it is required (s 36(2)) to consider whether an applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Convention.  Secondly, the applicant submitted that the “relocation” principle in Randhawa was, in effect, an unauthorised gloss on the Convention and, particularly, was something different from the “internal protection” principle recognised by the UNHCR Handbook.  The reasons of the Full Court in Randhawa, however, demonstrate plainly that that is not so: see particularly at 441 per Black CJ.  In any event, I am bound by the decision in Randhawa.  Thirdly, there was a submission the effect of which seemed to be that the Tribunal inappropriately failed to give the applicant the benefit of doubt and erred in its treatment of the evidence, particularly in its apportionment of weight to particular aspects of the evidence: reliance was placed on the decisions of the Full Court in Wu v Minister for Immigration and Ethnic Affairs  (1995) 130 ALR 367 and Minister for Immigration, Local Government and Ethnic Affairs v Mok (1995) 55 FCR 375.  But a response to that submission is to be found in the decision of the High Court in Wu: (1996) 185 CLR 259.  Fourthly, there was a suggestion that the requirement that the Tribunal apply “substantial justice” (Migration Act, s 420(2)(b)) required the Tribunal to practise (as, it was said, the Tribunal did not) a “positive interview process”.  But a failure to comply with s 420 is not a ground of review available in this Court, and in any event I can find no fault in the process adopted by the Tribunal.  Finally, a number of submissions were made as to the merits, in relation to which a number of paragraphs of the UNHCR Handbook were quoted: it was suggested, for example, that the applicant would not be able to practise his profession if he settled outside Lima and that the Tribunal was wrong to discount what was said to be an intelligence network of the Shining Path, indeed a network of various guerrilla groups which extended throughout Latin America.  But these were matters of fact for the Tribunal to assess.  I can see no basis, having regard to the material before the Tribunal and its treatment of the evidence, for a suggestion that the Tribunal failed to do what s 430 of the Migration Act requires.

14                  The applicant sought to read an affidavit, and tendered some documents, in support of his application.  But the documents and, to the extent that it deposes to facts, the affidavit relate to matters of fact not relevant to any question arising on judicial review, and therefore are not to be admitted into evidence.

Conclusion

15                  I have already indicated why, in my view, the particular submissions made by the applicant cannot be accepted.  I have also, however, carefully considered the Tribunal’s treatment of the material which was before it and its application of the relevant law.  I can find no reviewable error in the Tribunal’s reasons.  It follows that the application must be dismissed.

16                  The applicant asked that, should his application fail, I make no order as to costs: he referred to Montes‑Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60.  However, this is in no sense a test case; I see no grounds for disquiet about the Tribunal’s decision (compare Montes‑Granados at par 20); and there are no other particular circumstances in which a departure from the usual practice is appropriate.  The Minister seeks an order that the applicant pay his costs and I think it is appropriate that I make such an order.

17                  The orders of the Court, accordingly, will be that:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs.

18                  There is one further matter.  The applicant expressed, before the Tribunal, concern about the possible effect of publication of the details of the evidence supporting his application.  The matter was not pursued before me, but I think it is appropriate that I order that the applicant is to be referred to, in connection with these proceedings, only by the initials “CR”.

Associate:

Dated:              10 March 2000