Carrillo v Minister for Immigration & Multicultural Affairs [2000] FCA 948

FEDERAL COURT OF AUSTRALIA

Carrillo v Minister for Immigration & Multicultural Affairs [2000] FCA 948 CARRILLO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 226 of 2000 LEHANE J 7 JULY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 226 OF 2000

BETWEEN: MARK DEXTER CARRILLO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEHANE J

DATE OF ORDER: 7 JULY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant 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.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 226 OF 2000

BETWEEN: MARK DEXTER CARRILLO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEHANE J

DATE: 7 JULY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application under Pt 8 of the Migration Act 1958 (Cth) for judicial review of a decision of the Refugee Review Tribunal dated 15 February 2000. By its decision, the Tribunal affirmed a decision of a delegate of the Minister, dated 7 September 1999, not to grant the applicant a protection visa. 2 The applicant is a citizen of the Philippines. He arrived in Australia on 26 June 1999. He lodged his application for a protection visa on 22 July 1999. Included in his application were brief details of his claims as to the basis on which he was entitled to international protection, claims which have since, though not to any great extent, been elaborated in the applicant's application to the Refugee Review Tribunal and in evidence given by the applicant before the Tribunal. 3 The applicant claimed that his father had been involved in local government in the Philippines for a period of about two years. The applicant's evidence, which was not entirely clear on this point, appeared to be that his father was both an administrative official of local government and an elected member of a local government body. What precisely the position was in that respect does not, as will appear, greatly matter. The essence of the applicant's claim was that his father had had political disagreements with members of the local body and perhaps with the central government, and that he had publicly, both by written articles and at public meetings, criticised officials for the way in which they had performed their functions and for misdeeds which he alleged against them. 4 The applicant's evidence was that, in consequence of that criticism, his father was dismissed from the local government body in May 1999. His father was also, the applicant claimed, falsely accused of criminal conduct, an accusation which had prompted an official investigation. The investigation involved questioning of the applicant's father in a persistent and rude manner but did not involve other ill treatment; the investigating officers had, however, threatened that, if sufficient evidence was assembled, the applicant's father (and, apparently, the applicant himself) might be taken to court. 5 The applicant additionally claimed that he also had been subjected to questioning of a kind similar to that to which his father had been subjected. That had come about, the applicant said, because he had publicly accompanied and supported his father when his father had made allegations of misconduct against local government officials. The persecution which the applicant claimed to fear, should he be forced to return to the Philippines, was further investigation. In his initial application, there is a suggestion that the applicant feared that, if his father were charged, he might be charged as well; but he appears not to have repeated the claim before the Tribunal. 6 The Tribunal found the applicant to be an unsatisfactory witness who was vague in his responses to a number of questions. He had, for example, despite what he claimed to have been his own participation in his father's activities for a considerable period, been unable to offer any explanation of what precisely his father's political views were. The Tribunal also found implausible (and in this respect the applicant seeks to challenge the Tribunal's finding of fact) the applicant's claim that his father remained under investigation, and no charges had yet been brought against him, six months after the investigation had commenced. However, bearing in mind the principles stated by the Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 451, the Tribunal was content to proceed on the basis that, to a large extent, the applicant would be given the benefit of the doubt. Thus, the Tribunal proceeded to consider whether the applicant had a well‑founded fear of persecution for a Convention reason on the basis that his father had indeed been, and might still be, under investigation and that, if the applicant were to return to the Philippines, he might be subject to further questioning himself. 7 On that footing, the Tribunal nevertheless concluded that, if the applicant were to return to the Philippines and were again questioned, he would not be treated more severely than he claimed to have been treated in the past. The Tribunal held – and in this respect it is clear, I think, that it made no error of law – that questioning of that kind, and nothing more, would not amount to persecution in the sense in which that word is used in the Refugees Convention. Consequently, the applicant was not a person to whom Australia has protection obligations under the Convention. 8 The applicant is not legally represented and he made submissions at the hearing with the assistance of an interpreter. He appears, however, to have had some assistance in the preparation of his application for judicial review. The application identifies two grounds upon which the applicant seeks a review of the Tribunal's decision. The first of those grounds is that provided for in s 476(1)(f) of the Migration Act: that the decision was induced or affected by actual bias. The other is the ground provided for in s 476(1)(g), that is that there was no evidence or other material to justify the making of the Tribunal's decision. 9 On the question of bias, the applicant referred me to the Tribunal's treatment of evidence which the applicant gave as to his participation in meetings addressed by his father. The applicant was asked, the Tribunal records, whether he spoke Tagalog and he replied that he did not. The applicant does not, as I understand him, dispute that the Tribunal correctly recorded the evidence which he gave. The applicant's complaint is that, as he puts it, the Tribunal found that his evidence was untruthful and that the evidence about his familiarity with Tagalog played some part in the Tribunal's findings as to his credit. I do not think, however, that that is correct. I have read the Tribunal's reasons with some care; it seems to me that its findings on credit were not based particularly – perhaps not at all – on that matter but on other, more significant aspects of the applicant's evidence. 10 In any event, it is clear, in my view, that the ground of actual bias is not made out. There are a number of authorities in this Court which deal with what must be established by an applicant who seeks to make good a claim that a decision was affected or induced by actual bias. One such authority is the decision of the Full Court in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71. It is sufficient, I think, to refer to the judgment of Wilcox J at 122 and 123. Speaking generally, actual bias involves an approach to a matter with a closed mind: a mind unwilling to be persuaded, particularly, unwilling to be persuaded away from any tentative view initially held or expressed by the decision maker. There is, I think, nothing in the material and nothing which was put to me that comes close to establishing that the Tribunal in this case was actually biased. Nor, given that it was prepared to accept that the applicant's claims were genuine, could it be said that its decision was induced or affected by actual bias. 11 Similarly, the "no evidence" ground must fail. It is always important in considering a case in which this ground is relied upon to bear in mind s 476(4) of the Migration Act, which provides that the ground is not taken to have been made out unless one of two things is established. One is that the person who made the decision was required by law to reach the decision only if a particular matter was established and there was no evidence or other material from which the person could reasonably be satisfied that the matter was established. The other is that the person who made the decision based the decision on the existence of a particular fact and that fact did not exist. I am unable to see that either of those two matters could be made out and nothing has been specifically put to me which might suggest that either was made out. 12 For those reasons, the particular grounds on which the applicant seeks judicial review must fail. I have, however, considered also whether other grounds might be available under s 476 for review of the Tribunal's decision. Particularly, I have considered (and discussed with Mr Markus, who appears for the Minister) whether this might be a case in which the Tribunal failed to comply with s 430 of the Migration Act, thus enlivening the ground in s 476(1)(a). It occurred to me that that might be so because, in its rather brief reasons, the Tribunal appears not to have considered specifically the possibility, of which the applicant gave evidence before the Tribunal, that the applicant's father might ultimately be charged falsely or arrested on a trumped up charge, nor to have considered what might happen in relation to the applicant himself were that to occur. 13 The Tribunal's reasoning is encapsulated, I think, in the final passage of its reasons which appears immediately before the Tribunal's statement of its conclusion. That passage reads as follows: "The applicant was very vague about the current situation of his father in the Philippines. He stated that his mother told him that his father was still under investigation some 7 months after he lost his Council position. Even if the applicant's father is still under investigation, which the Tribunal finds implausible, the applicant did not claim that his father had been harshly treated, or that, for example, he had been detained at any stage. He gave no indication that the nature of the investigation was any different from what had gone before. The Tribunal, therefore, in considering whether there is a real chance that the applicant will be persecuted if he returns to the Philippines, is satisfied that even if the applicant were again questioned, he would not be treated more severely than in the past. Since his past experience was not found by the Tribunal to amount to persecution, any future questioning will not, similarly, amount to persecution in the Convention sense. The Tribunal is satisfied that the applicant's fear of persecution is not well‑founded." 14 Mr Markus submitted that that passage in the Tribunal's reasons is to be read in the light of its earlier consideration and findings: particularly, its findings concerning the vague nature of the applicant's claims and especially concerning his evidence as to the nature of the political views held by, and the substance of the criticisms of officials made by, his father. In other words, the submission was that the Tribunal's reasons must, as authority establishes, not be read with an eye keenly attuned to the perception of error. The Tribunal had made it clear that, on the evidence before it, it found that the Philippines was a country in which freedom of expression was respected. It had found that the applicant's evidence was unreliable. It had found that a number of his claims were implausible. Nevertheless, the Tribunal was prepared to proceed on what amounted to an assumption that the substance of the applicant's evidence as to what had actually occurred was true. On that basis, the Tribunal found that, if the applicant were to return to the Philippines, the worst that he could expect would be further questioning of a kind no more severe than he had previously experienced, and that such questioning would not amount to persecution. That, of course, being a finding of fact which was open on the evidence, would not be open to review by the Court. 15 In my view, that submission is correct. If the Tribunal's reasons are read, as they should be, as a whole and with an eye to their substance, the effect of its finding is the effect for which Mr Markus contended. That being so, there is, I think, no error of a kind falling within s 476(1)(a). I am unable to see any other reviewable error in the Tribunal's reasons. 16 Since review is available in this Court only upon one of the legal grounds specified in s 476 and since, for the reasons I have given, no ground of review specified in s 476 is made out or, in my view, available, the application must be dismissed. 17 The Minister seeks an order for payment of his costs of the application. It is the usual course that the unsuccessful party is ordered to pay the costs of the successful party. The applicant indicated that he may not be able to pay the Minister's costs. That, of itself, is not usually seen as a reason not to follow the ordinary course. There is, I think, nothing about the present case which indicates that the usual order should not be made. Accordingly, I order that the application be dismissed and that the applicant pay the respondent's costs of the proceeding. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.