Cruz, Marciano Marcelo v Minister for Immigration & Ethnic Affairs [1997] FCA 565

C A T C H W O R D S MIGRATION - Refugee application - Alleged fear of persecution because of refusal to join New Peoples Army in Philippines - Tribunal found no real chance of persecution if applicant was returned to the Philippines - Tribunal not asked to initiate inquiries into certain murders alleged by applicant and did not do so - Whether Tribunal's failure to investigate claims constituted an error of law. Migration Act 1958, s 476(1). No. NG.930 OF 1996 CORAM: WILCOX, SACKVILLE and EMMETT JJ PLACE: SYDNEY DATE: 23 MAY 1997

IN THE FEDERAL COURT OF AUSTRALIA) ) No. NG 930 of 1996 NEW SOUTH WALES DISTRICT REGISTRY) ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MARCIANO MARCELO CRUZ Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent CORAM: WILCOX, SACKVILLE and EMMETT JJ PLACE: SYDNEY DATE: 23 MAY 1997 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay to the respondent his costs of the appeal. NB: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) No. NG 930 of 1996 NEW SOUTH WALES DISTRICT REGISTRY) ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MARCIANO MARCELO CRUZ Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent CORAM: WILCOX, SACKVILLE and EMMETT JJ PLACE: SYDNEY DATE: 23 MAY 1997 EXTEMPORE REASONS FOR JUDGMENT WILCOX J: This is an appeal from a judgment of a Judge of the Court, Whitlam J, dismissing an appeal against a decision of the Refugee Review Tribunal. When the matter commenced this morning, there was some discussion as to the basis upon which the Court was asked to intervene. Dr S Churches, on behalf of the appellant, indicated that his contention, in substance, was that the Tribunal had fallen into error of law, within the meaning of s 476(1)(e) of the Migration Act 1958. There was a problem; this ground was not taken in the application filed in this Court or argued at first instance. However, Mr J Basten QC, on behalf of the Minister, indicated he would not object to the argument being put. Accordingly, the case proceeded on that basis. Notwithstanding this concession, it emerged during the course of Dr Churches' submissions that no error of law argument was really available to him. It is obvious, and understandable, that the appellant is unhappy about the decision of the Tribunal rejecting his application. However, that decision turned on an assessment of the facts and it is common ground is not a matter in relation to which this Court can grant relief. In the end, the submission put to us was that the Tribunal erred in law in failing to institute inquiries in the Philippines, the appellant's native country, concerning claims he made about the murder by members of the New Peoples' Army ("NPA") of various relatives and friends. These murders are said to have occurred prior to the appellant departing the Philippines in 1985. The appellant said the people were murdered because they declined to join the NPA. In his evidence before the Tribunal, the appellant gave the names of the murdered people and identified one or two people he said were involved with the NPA. He did not specify the relevant region or particularise the dates of the murders. Perhaps he could have provided this information to the Tribunal, had he been asked; but he was not asked and did not volunteer it. The Tribunal member considered that the story told by the appellant conflicted with information that was available to her as to the method of recruitment of the NPA. Apparently there was material, both in a book dealing with the activities of the NPA and also in at least one official country report, that clearly stated the NPA did not coerce recruits. Reasons were given for this, especially the fact that members of the NPA led a guerilla life. It was suggested the NPA believed a coerced recruit might not be an asset. However, the Tribunal member did not dispose of the case upon that basis. She raised with the appellant the point that the events of which he spoke took place more than 10 years ago. She asked him why he believed he was now in danger. In reply, the appellant referred to a letter he had received from his sister in 1992 in which a statement was made, with an element of at least double hearsay, about the possibility that the appellant would die if he returned to the Philippines, because the NPA were unhappy that he did not wish to join them. The Tribunal member pointed out to the appellant that there had been many changes in the Philippines since he left. This is amply verified by the country reports and could hardly be contested.The appellant was unable to indicate any reason why those changes should be disregarded. The significance of the information as to changes is that it shows the NPA is now in a much weaker condition than at the time the appellant left the country; indeed it is now inactive in many parts of the country. The appellant did not ask the Tribunal member to initiate any inquiries, either as to the circumstances surrounding the deaths of the people he had mentioned or as to the present situation in the Philippines. The Tribunal member dealt with the matter upon the basis of the country reports. She said that, even if the appellant had been at risk at one time, she was not satisfied there was a real chance of persecution if he was now returned to the Philippines. I cannot see any error of law in this reasoning. The Tribunal's conclusion was entirely one of fact. Having regard to the criticism that has been made of the Tribunal, it is worth noting that the appellant was legally represented at the hearing before Whitlam J, as he is today; yet no evidence has been put before the Court to indicate that, if inquiries had been made in the Philippines along the suggested lines, they would have yielded information that assisted his case. Essentially, as it seems to me, Dr Churches' submission amounts to this: in every case in which an applicant for refugee status puts allegations to the Tribunal regarding events that have occurred in the country from which he or she has fled, the Tribunal has an obligation to carry out an investigation as to the whole of those circumstances. That task would be extremely onerous. It seems to me that acceptance of the proposition would cause the refugee assessment system to collapse. I do not see any error of law in the course taken by the Tribunal or, indeed, if it is relevant, any of the other defects that are referred to in s 476(1). Dr Churches has put to us everything that could possibly be put on behalf of the appellant. But in my opinion the result is inevitable: the appeal should be dismissed. SACKVILLE J: I agree with the reasons and with the orders proposed by the learned presiding Judge. EMMETT J: I agree and I do not wish to add anything. [There was discussion about costs.] WILCOX J: The usual course should be taken as to costs. The appellant must pay the respondent's costs. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the members of the Court. Associate: Dated: 23 May 1997 APPEARANCES Counsel for the Appellant: Dr S C Churches Solicitor for the Appellant: Newman & Associates Counsel for the Respondent: J Basten QC and L McCallum Solicitors for the Respondent: Australian Government Solicitor Date of hearing: 23 May 1997