FEDERAL COURT OF AUSTRALIA

Vargas v Minister for Immigration & Multicultural Affairs [2001] FCA 1025

MIGRATION – protection visa – review of Refugee Review Tribunal refusing visa – applicants claimed they would suffer persecution by a relative for reasons of political opinion – whether jurisdictional error - whether failure to consider applicants’ claims of political persecution – whether an error of law in consideration of so-called agents of persecution principle – whether Tribunal erred in its consideration of whether the applicants could relocate within the Philippines

Migration Act 1958, s 36, s 476(1)

Migration Regulations, Schedule 2, clause 866.221

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 discussed

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 referred

Craig v State of South Australia (1995) 184 CLR 163 referred

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 referred

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 referred

Abebe v Commonwealth (1999) 197 CLR 510 referred

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred

CHARLIE VARGAS & ORS v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 206 of 2000

KENNY J

1 AUGUST 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.         The applicants pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

introduction

1                     This is an application under s 476(1) of the Migration Act 1958 (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 March 2000, affirming a decision of the respondent, by his delegate, not to grant the applicant a protection visa. 

background facts

2                     The applicants are citizens of the Republic of the Philippines.  Charlie and Angelita Vargas married in the Philippines in December 1979.  A son, born 10 October 1986, is included in their application. 

3                     Mr Charlie Vargas (the first applicant) arrived in Australia on 13 June 1987.  His wife and two children arrived in Australia some time later.  They made a protection visa application on 19 June 1998.  On 28 August 1998, a delegate of the respondent refused their protection visa application.  In September 1998, Mr and Mrs Vargas and their two children applied for review of that decision.  They were subsequently notified of the Tribunal’s decision to affirm the delegate’s decision.  (I note that by the time the Tribunal made its decision, one of the children had ceased to be a party to the review application.)

4                     The decision under review in this proceeding is the Tribunal’s decision that it is not satisfied that the applicants have a well-founded fear of being persecuted in the Philippines by reason of political opinion.

legislative framework

5                     Section 36 of the Act provides:

(1)    There is a class of visas to be known as protection visas. 

(2)    A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The Refugees Convention is defined in s 5(1) as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol, as the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 

6                     Schedule 2 of the Migration Regulations 1994 makes further provision for protection visas.  Clause 866.221 of Schedule 2 provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Protection obligations arise in relation to a person who falls within the definition of “refugee” in the Convention as amended by the Protocol (collectively, “the Convention”).  A refugee is defined in Article 1A(2) of the Convention as any 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 … .

applicants’ protection visa application

7                     In a submission in support of the protection visa application, Mr Vargas claimed that he left the Philippines “because my life and that of my family was in grave danger” since “my wife’s uncle has threatened and continued to threaten my family because of our deep personal differences in political opinions”.  Mr Vargas continued:

My country was suffering from entrenched political corruptions and political revolution brought about by the fall of the Marcos Government and the revolution initiated by Cory Aquino.  The people were looking forward to political reforms.  So when my cousin Senator Herson Alvarez ran under Aquino’s political ticket I campaigned for his political platform.

My wife’s uncle was a die-hard Marcos loyalist and was the campaign manager for the Marcos loyalist candidate.  …

My cousin, Senator Herson Alvarez became a senator in the upper house. 

As a result of our political victory my wife’s uncle and his supporters vowed to destroy me.  …

They continually harassed me and persecuted me so that my family will be destroyed.  …

My wife’s uncle who leads the Marcos loyalist group, is a violent man.  His group supports him because people and opponents fear him because for years he has the political clout and influence and has remained above the law despite his system of harassing, assaulting and intimidating political opponents. 

He owns the land where our house was built and one evening he rounded up me and my family and forcibly evicted us out of the house.  His intention to harm us was so great, the house we lived in was demolished and destroyed.  My family and I knew that my life was in danger and I arranged to leave the country secretly.

…

My political enemies used known gangsters, former prisoners and thugs and through threats and intimidation forcibly evicted us from our house onto the streets and demolished and destroyed the house so that we have nowhere to live, I feared that my political enemies were determined to destroy me and my family.  When I left the country, my wife and young children lived in constant fear and were always harassed and intimidated by my political enemies.  To secure our lives my family had to leave the country in order to be able to survive.

The authorities had seen our house destroyed and demolished but cannot protect us against the constant harassment, threats and intimidation.  The authorities are hesitant in political vendetta and political persecution they are afraid to jeopardise their own job security and personal safety.

8                     In his application for review by the Tribunal, Mr Vargas stated:

My family and I have been displaced because the actions of my wife’s uncle and his supporters were tolerated by the authorities.  Despite the open threat and persecution against me and my family, the authorities did not lift a finger to protect me, my wife and children.  …  The political conflict between my wife’s uncle and myself has divided my own family and that of my wife’s … I fear a family blood bath.  Had my family and I not left the country, not only will my life and that of my family will be in danger but also that of our immediate family. 

9                     Under cover of a letter dated 16 May 1999, the applicants’ representatives provided a submission to the Tribunal and some supporting documentation, including a letter dated 3 October 1998 from Mr Jimmy C. Ong, who described himself as “a former Barangay Captain of Barangay Malaya, Quezon City”.  In his letter, Mr Ong stated:

I assisted in the dispute between Charlie Vargas and Eduardo Rafael. 

That the dispute was about politics.  Mr Vargas was then supporting for Heherson Alvarez, a senatorial candidate under the political party of Former President Corazon C Aquino, while Mr Rafael, on the other hand, is a member of the Marcos Loyalist Movement. 

That because of the dispute, Mr Rafael demolished the house of Mr Vargas which was situated on Mr Rafael’s lot. 

That I was not able to resolve the dispute so I decided to give Mr Vargas a permission to build a small house at the side of the street.

10                  Also amongst the documentation was a letter from Mr Guillermo Aguinaldo, “a Philippine Army Personnel”.  He too stated that in January 1987 the house of Mr Vargas and his family was demolished by Mr Rafael “who owns the lot where Charlie’s house was built”.  Mr Aguinaldo added “I was one of those people who helped move their belongings and then rebuilt a small house at the side of the road.  I believe that Charlie Vargas and Eduardo Rafael had a political conflict being supporter of President Corazon Aquino against the supporter of ex-President Ferdinand Marcos.  They ended up as bitter enemies”.

11                  There was a hearing before the Tribunal on 19 May 1999.  Mr and Mrs Vargas gave evidence.

reasons for tribunal’s decision

12                  After describing the applicable legal regime in terms familiar to this Court, the Tribunal turned to the applicant’s “Claims and Evidence”.  The Tribunal referred to the claims made by, or on behalf of, the applicants in their protection visa application and the submissions in support; the submissions (including attachments) of 16 May 1999; and the evidence given by Mr and Mrs Vargas at the Tribunal hearing. 

13                  In its “Findings and Reasons”, the Tribunal noted “that the application for protection was made 11 years after [Mr Vargas] departed the Philippines” and found that “this delay casts some doubt on the genuineness of the applicant’s [sic] claimed subjective fear of persecution”.

14                  The Tribunal accepted that the Vargas family house was destroyed and that Mr Vargas “suffered threats and harassment from the … wife’s uncle”.  It did not accept, however, that Mr Vargas or his family “suffered persecution by the State, agent of the State or was condoned by the State”.  The Tribunal observed:

The harassment was perpetuated by the applicant wife’s uncle and his friends and not by the authorities or any agent of them.  Other than the demolition of the applicant’s house and some generalised threats to the applicant, there is no evidence of any other harassment or persecution directed towards the applicant.  While the applicant’s house was demolished, it was a one off incident and the house was rebuilt nearby.  While the applicant may not have been able to seek protection from the authorities to stop the demolition of his home because it was not built on his land but on his uncle’s, the applicant could have sought protection from the police for harassment and threats.

There is no evidence that the State did not and will not respond to complaints made by the applicants regarding their uncle’s behaviour.  In fact, the applicant submitted evidence that the authorities did respond to their complaints and tried to resolve the dispute between the parties.  This is evidenced by the letter from the former Quezon City Barangay Captain.  When the dispute could not be resolved the Barangay Captain gave permission for the applicants to build their house at the side of the street.  Given these facts and the current political climate and state protection available, the Tribunal finds that any claimed harassment was not condoned by the authorities.

15                  Under a subheading “State Protection now”, the Tribunal referred to information relating to the contemporary political situation in the Philippines.  It concluded:

Given that the current political climate, available State protection and length of time that has elapsed since the applicant’s troubles, the Tribunal finds there is no real chance that the applicant or his family will face persecution in the foreseeable future.

16                  Under a subheading “False passports”, the Tribunal stated that:

[It] has not been able to find any substantial reason as to why the applicants entered Australia under assumed names except for the fact that they needed an Australian visa to make this journey.  There was no reason for their own government to deny them a passport.  Indeed as a supporter of the then President, Cory Aquino, they could expect favourable treatment from the authorities.

In any event, the Philippine Government does not penalise citizens who have overstayed or been deported from another country … . 

The Tribunal finds that the applicants will not face a real chance of persecution upon return for reasons of their use of false passports or stay in Australia. 

17                  Under a subheading “Internal flight”, the Tribunal observed that it was not “strictly necessary” to consider whether the applicants might “relocate and access effective protection elsewhere in the Philippines”.  Nonetheless, the Tribunal observed:

The applicants have work skills and considerable work experience and those they fear are relatives in their home town, Quezon City and therefore localised.  Their evidence is to the effect that it would not be difficult to secure employment elsewhere.  However, the applicant husband has a graduate diploma in business administration and worked as a bank clerk between 1997 to 1987 [sic].  The applicant wife holds a midwifery qualification and has secretarial skills.  The applicants have been residing in Australia since their arrival in 1987.  The applicant husband has been a process worker in the same factory in Australia since 1989.  Given the applicant’s adaptability to live elsewhere in Australia, their qualifications and education and work experience, the Tribunal finds it reasonable in all the circumstances for the applicants to relocate to another city to avoid the harm feared.  The Tribunal finds that it is reasonable in all the circumstances for the applicants to relocate elsewhere in the Philippines.  The Tribunal finds the applicants are able to obtain protection for Convention purposes in the Philippines. 

The Tribunal concluded that “[h]aving considered the evidence as a whole” it was not satisfied that the applicants were persons to whom Australia had protection obligations under the Convention.  The Tribunal observed that the “fate” of the application made by the applicants’ children “depends on the outcome of the applicant’s [sic] application”.  It followed that their application also failed.

grounds of review

18                  In their amended review application, the applicants relied on the grounds identified in pars 476(1)(a) and (e) of the Act.  They subsequently added pars 476(1)(b) and (c) and abandoned reliance on s 476(1)(a) (and s 430) of the Act.  The applicants did not press any claims concerning their membership of a particular social group. 

19                  At the hearing, counsel for the applicants submitted that the Tribunal failed to consider the applicants’ core claim of political persecution.  This submission subsumed the case made in the applicants’ supplementary written submissions that:

The Tribunal in this case has constructively failed to exercise its jurisdiction, alternatively, failed to take into account relevant considerations in that:

(i)                 it did not consider whether the [applicant’s] wife had a well founded fear of persecution;

(ii)               it did not consider the issue of State protection;

(iii)             it did not consider the applicant’s wife’s claims of constant harassment, threats and intimidation and forcible eviction from her home by thugs;

(iv)             it did not consider claims that the children were forcibly evicted from their homes and forced to live in a shanty by the roadside;

(v)               it did not consider the claims about the pervasive influence of Marcos supporters.

20                  In the applicants’ amended review application, the applicants also contended:

(i)                 The Tribunal incorrectly interpreted the test for persecution in the context of the agents of persecution principle;

(ii)               By failing to make a finding as to whether the Philippines authorities refused, neglected or proved unable to offer effective protection to the applicants, the Tribunal demonstrated its misunderstanding of the Convention refugee test; and

(iii)             The Tribunal misinterpreted the Convention test for relocation within the country of nationality.

was there reviewable error?

21                  The applicants relied on the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.  Whilst the High Court in that case overruled the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, a majority of the Court also held that pars 476(1)(b), (c) and (e) permitted an applicant for review under Part 8 of the Act to invoke the common law concept of jurisdictional error.  At common law, the term “jurisdictional error” covers a number of kinds of error, including ignoring relevant material:  see Craig v State of South Australia (1995) 184 CLR 163 at 179.  A failure to take account of relevant material will only constitute a reviewable error, however, if the material was such that a decision-maker was bound to take into account. 

22                  After noting that the limitation in s 476(3) of the Act applied to only s 476(1)(d), the joint judgment of McHugh, Gummow and Hayne JJ in Yusuf stated at [83]-[84]:

[T]here is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs.  In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it ‘exceeds its authority or powers’.  If that is so, the person who purported to make the decision ‘did not have jurisdiction’ to make the decision he or she made, and the decision ‘was not authorised’ by the Act. 

Moreover, in such a case, the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  …  No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law.  The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  That qualification emphasises that factual error by the tribunal will not found review.  Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals.  That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language.  If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.  If that is so, the ground in s 476(1)(e) is made out. 

23                  In a separate concurring judgment, the Chief Justice said at [4]:

As McHugh, Gummow and Hayne JJ point out, a failure by the tribunal to deal, in its reasons for decision, with some assertion of fact made by a visa applicant may, or may not, have consequences for judicial review of the tribunal’s decision, either in the Federal Court or in this court, quite apart from whatever consequences it may have under s 476(1)(a).

24                  There may be numerous matters that a decision-maker may take into account (and that are not in law irrelevant), although the decision-maker would not be bound at law to take them into account.  The position is best explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39.  His Honour said at 39-40:

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.  In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … .  By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.  (Citations omitted).

25                  The relevant consideration ground, as it is understood at common law, does not permit inquiry into the merits of the administrative decision under review.  As Mason J added in Peko-Wallsend at 40 - 41:

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind.  It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.  Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned … .  (Citations omitted).

26                  It is unnecessary in this case to explore further the nature of the relevant consideration ground.  The applicants have not shown that the Tribunal failed to consider any matter relied on by them (whether or not a relevant consideration in the Peko-Wallsend sense) nor have they shown that it made any other jurisdictional or otherwise reviewable error.

27                  Counsel for the applicants submitted that there was reviewable error shown in the Tribunal’s statement that the “harassment was perpetrated by the applicant wife’s uncle and his friends and not by the authorities or any agent of them”, and in the observations accompanying that statement.  The applicants submitted that, by dismissing the “harassment” as the expression of a “family dispute”, the Tribunal did not consider whether the “political profile” of Mr Vargas gave rise to a well-founded fear of persecution for a Convention reason. 

28                  I reject this submission.  Mr Vargas first described his claim as stemming from the “deep personal differences in political opinions” between himself and his wife’s uncle.  The Tribunal noted that, whilst Mr Vargas supported “an Aquino candidate” (who was successful), his uncle “supported a Marcos candidate” (who, presumably, was not).  The applicants’ counsel did not contend that there was a great deal more to the claim than this, although he noted that the Tribunal did not refer to the fact that Mr Vargas had “campaigned for [his candidate’s] political platform”.  The Tribunal is not, however, obliged to refer to every submission and each item of evidence relied upon by an applicant:  see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593 per Kirby J, Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J and Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 481 (overruled on a different point).  No inference of error can be drawn from the Tribunal’s failure to refer specifically to the applicant’s statement that he campaigned for his candidate. 

29                  There is no error disclosed in the Tribunal’s description and findings concerning the applicants’ claims.  It was open to the Tribunal to reject, as it did, the proposition that Mr Vargas and his family had “suffered persecution by the State, agent of the State or was condoned by the State”.  That finding subsumed the question whether, by virtue of his political profile, Mr Vargas had a relevant well-founded fear of persecution for political opinion.

30                  The applicants’ claim, in written contentions, that the Tribunal erred in the manner it dealt with the claims of Mrs Vargas is misconceived.  Her claims and that of any child of hers depended upon the claim made by Mr Vargas.  Neither she nor any child made a separate claim that was not connected to his claim.  In determining Mr Vargas’s claim, the Tribunal necessarily determined all claims in the matter.

31                  As already noted, the Tribunal expressly considered the question of State protection.  In this context, the Tribunal expressly noted Mr Ong’s letter of 3 October 1998.  On the evidence before it, it was open to the Tribunal to find, as it did, that there was no evidence that “the State did not and will not respond to complaints made by the applicants regarding their uncle’s behaviour”.  Further, I reject the submission, made in writing, that the Tribunal did not consider “the claims about the pervasive influence of Marcos supporters”.  The Tribunal effectively considered this and associated matters under the heading “State Protection now”.  Having referred to the country information that indicated that “the Aquino-Marcos dichotomy has diminished substantially since 1987”, the Tribunal made its critical finding that “there is no real chance that the applicant or his family will face persecution in the foreseeable future” in the Philippines.

32                  In support of their submission that the Tribunal misinterpreted the test for persecution, the applicants submitted in writing that:

Regardless of the fact that the Philippines authorities may not have been personally involved in the persecution or harassment of the applicants; the question … is whether the authorities knowingly tolerated or refused or proved unable to offer effective protection.  The torching of the applicants’ house was a criminal offence as well as an act of persecution.  The findings of the Tribunal are that the police treated the matter as a dispute (not as a crime) and unsuccessfully tried to resolve the dispute.  The Tribunal’s findings clearly demonstrate that the authorities were unable to provide effective protection. 

33                  The Tribunal did not make any findings in the terms alleged by the applicants.  Its reasons show that it fully appreciated that what was at issue was persecution by non-state agents from whom the state offered insufficient protection.  It made a clear finding of fact regarding the ability of the state to offer effective protection.  The applicants’ contention in this regard amounts to an invitation to review the merits of the Tribunal’s decision rather than the process by which it arrived at that decision:  cf Abebe v Commonwealth (1999) 197 CLR 510 at 579.

34                  In the same vein, in support of their submission that the Tribunal misinterpreted the test for a Convention refugee, the applicants submitted in writing that:

The Convention refugee test requires a finding to be made as to whether the government authorities had refused, neglected or proved unable to offer effective protection to the applicants … .  By failing to make a finding in this respect, the Tribunal demonstrated its misunderstanding of the Convention refugee test … .

For the reason just stated, this submission also fails. 

35                  Bearing in mind the observations in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 and 291, I reject the proposition that the Tribunal incorrectly interpreted the test for persecution, misconceived the test for a Convention refugee, or misinterpreted the test for relocation within the Philippines. 

36                  Accordingly, for the reasons given, I would dismiss the application with costs.

Associate:

Dated:              1 August 2001