Cruz, Marciano Marcelo v Minister for Immigration & Multicultural Affairs [1996] FCA 937

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 494 of 1995 ) GENERAL DIVISION ) MARCIANO MARCELO CRUZ Applicant MINISTER FOR IMMIGRATION and MULTICULTURAL AFFAIRS Respondent Coram:Whitlam J Place: Sydney Date: 31 October 1996 REASONS FOR JUDGMENT This is an application under s 476 of the Migration Act 1958 ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") refusing to grant the applicant a protection visa. The Tribunal was not satisfied that he was a refugee within the meaning of Article 1 of the Refugees Convention as amended by the Refugees Protocol. Specifically, it concluded: "the Tribunal finds that there is not a real chance that the applicant would face persecution for one of the reasons set out in the Convention if he were now to return to the Philippines." The applicant had arrived in Australia in 1985. The "key issue" before the Tribunal, according to his solicitor's written submissions, was the recruitment practices of the New

Peoples Army ("NPA") in the Philippines. The Tribunal summarized the applicant's evidence before it as follows: "The applicant stated that he was afraid to return to the Philippines because prior to his departure in 1985 he had refused to join the New People's Army (NPA). He said that the Philippines would not be safe for him even though these events happened ten years ago. He said that the NPA would be able to find him anywhere in the Philippines. The applicant said that he was approached by the local NPA commander on three occasions in early 1985. This person asked him to join the NPA. He refused on each occasion and on the last occasion was told that his safety could not be guaranteed. He was threatened with a gun. The applicant then went to Manila to stay with a cousin and made arrangements to leave the Philippines. The applicant said that the NPA wanted him to join their ranks because he had been an officer cadet and had had some weapons training. In addition, he was an influential figure with the young men in his area. The applicant said that a number of his friends, including a cousin, were murdered by the NPA for refusing to join the organisation. The applicant said that the NPA were still looking for him. He said that he had received a letter from his sister in 1992 which stated that it was not safe for him to go back to the Philippines because the NPA were asking when he would return. A copy of that letter is contained on the applicant's departmental file." After setting out the legislative framework and the test of refugee status laid down in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, the Tribunal stated its findings of fact by reference to the applicant's evidence and the other material before it. It said: "As the applicant's account does not accord with known information about NPA practices, the Tribunal doubts that he was ever involved in the incidents he has described in which he was intimidated and threatened.