FEDERAL COURT OF AUSTRALIA Ordeniza v Minister for Immigration & Multicultural Affairs [2001] FCA 35 MIGRATION – review of RRT decision not to grant protection visa – whether applicant unwilling or unable to avail himself of protection of country of nationality – where no attempt to tie criticisms of RRT decision to permissible grounds of judicial review – where no challenge made to "effective protection" finding of RRT. Migration Act 1958 (Cth), ss 5(1), 36(1), 36(2), 65(1)(b), 476(1)(g) Sunarso v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 125 referred to Minister for Immigration & Multicultural Affairs v Kandasamy [2000] FCA 67 referred to Aung v Minister for Immigration & Multicultural Affairs [2000] FCA 1562 referred to GUILLERMO ORDENIZA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 441 of 2000 KATZ J 5 FEBRUARY 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 441 of 2000 BETWEEN: GUILLERMO ORDENIZA APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE OF ORDER: 5 FEBRUARY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 441 of 2000 BETWEEN: GUILLERMO ORDENIZA APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE: 5 FEBRUARY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made by the Refugee Review Tribunal ("the Tribunal"). By that decision, the Tribunal affirmed a decision which had earlier been made by a delegate of the Minister for Immigration & Multicultural Affairs ("the delegate" and "the Minister" respectively). The delegate's decision had been one to refuse to grant (see the Migration Act 1958 (Cth) ("the Act"), par 65(1)(b)) a protection visa (see the Act, subs 36(1)) which had been sought from the Minister by Mr Guillermo Ordeniza, a Filipino national. 2 It was necessarily implicit in Mr Ordeniza's making of his protection visa application that he was claiming to be outside the Philippines owing to his having a well-founded fear of being persecuted for at least one of the five reasons specified in Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol (see the Act, subss 36(2) and 5(1)). However, it is not apparent from the evidence before me that, in making his application to the Minister, Mr Ordeniza identified in terms any one of the five Convention reasons as being the particular reason to which his claimed well-founded fear of being persecuted related. On the other hand, before the Tribunal, Mr Ordeniza appears to have identified in terms, as the particular Convention reason to which his claimed well-founded fear of being persecuted related, his membership of a particular social group. In his application to the Tribunal, Mr Ordeniza in substance described that group as being "work[ers]" at "the [Filipino] nuclear project". 3 It is also not apparent from the evidence before me whether Mr Ordeniza was claiming that he was unwilling, owing to his well-founded fear of being persecuted for a Convention reason, to avail himself of the protection of the Philippines or whether he was instead claiming that he was unable to avail himself of that country's protection. However, one or other of those two claims was (given the terms of Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol) also necessarily implicit in Mr Ordeniza's making of his applications both to the Minister for a protection visa and to the Tribunal for review of the delegate's adverse decision on his application for a protection visa. 4 Before the Tribunal, Mr Ordeniza naturally made various assertions of fact regarding his personal circumstances and it is convenient to turn immediately to a number of those assertions which the Tribunal either expressly or impliedly accepted as true or (in some cases) as possibly true, as appears from its statement of findings and reasons. 5 For two years in the early 1980s, Mr Ordeniza had a job in the Filipino nuclear industry, at a nuclear power plant situated in a region of the country outside Manila. The New People's Army ("the NPA"), the military wing of the Communist Party of the Philippines, was very active in that region and opposed the construction and operation of the plant. 6 In late 1983, Mr Ordeniza came to the attention of an NPA patrol in that region; that patrol may have detained him briefly and taken his personal identification. 7 Also in late 1983, Mr Ordeniza resigned from his job at the nuclear power plant and went to Manila. There, he became the operator of a business, which business he continued to operate until he left the Philippines in 1999 to come to Australia. 8 While operating his business and as a result of threats made to him, Mr Ordeniza made payments on a monthly basis for many years. Mr Ordeniza believed that the NPA was both responsible for the threats and the beneficiary of the payments. He may have been justified in that belief. 9 In July 1988 and again in January 1989, Mr Ordeniza was the victim of robbery at gunpoint, in the course of which he suffered serious physical injuries and, it seems, considerable psychological trauma. 10 Some time before September 1997, Mr Ordeniza ceased to make his monthly payments to (as he believed) the NPA. Then, in September 1997, members of Mr Ordeniza's family were held hostage and robbed at gun point at the family business premises when Mr Ordeniza was not there. Those responsible for that robbery did not assert at the time that there existed some connection between the robbery and Mr Ordeniza's having ceased to make his monthly payments. 11 Mr Ordeniza was away on business for much of the two year period between September 1997 and his departure for Australia in 1999. During that period, he did not resume his payments to (as he believed) the NPA. However, no adverse consequences flowed, either to him personally or to his family, as a result of his not resuming those payments. 12 Having set out above certain matters of fact regarding Mr Ordeniza's personal circumstances which were accepted by the Tribunal as true or (in some cases) as possibly true, I now set out the substance of Mr Ordeniza's case before the Tribunal. It was as follows: he had been the victim in the past of persecutory acts (both extortion and robbery) committed for a Convention reason by the NPA (a body not an agent of the government of the Philippines). He had a well-founded fear of being the victim, if he were to return to the Philippines, of a further persecutory act committed against him by the NPA, namely, his murder. The NPA's initial extorsive acts against him had had their genesis in the incident in late 1983 when he had come into contact with the NPA patrol. It had been at the time of that incident that the NPA had become aware of his involvement in the nuclear industry and it had been because of the NPA's awareness of that involvement by him that it had afterwards targeted him for money. The cause of the NPA's robberies of him in July 1988 and January 1989 had been his ceasing shortly before the first of those two robberies to make to the NPA the monthly payments which he had earlier been making to it and, after the second of those two robberies, he had begun again making the payments to it. Then, his ceasing for a second time to make those payments to it had caused the NPA's robbery of his family in September 1997. The July 1988 robbery had been reported to the police, although they had not been informed of Mr Ordeniza's belief that the NPA had been responsible for the robbery, and the police had demanded money to investigate the robbery. Mr Ordeniza had not informed the police of his belief that the NPA had been responsible for the robbery because he feared that, if he did, they would suspect that he himself had been involved in the NPA. In October 1990, the NPA had disclosed to Mr Ordeniza that it had committed the July 1988 and January 1989 robberies. 13 I turn now to a summary of the way in which the Tribunal dealt with the various aspects of Mr Ordeniza's case before it to which I have just referred. For present purposes, that summary may be reduced to four propositions. 14 First, although, as I have already mentioned, the Tribunal accepted that the NPA had possibly been responsible for the extorsive acts committed against Mr Ordeniza, the Tribunal did not accept that, if the NPA had been responsible for those acts, it had committed them for any Convention reason. 15 Secondly, as to the three robberies of 1988, 1989 and 1997, the Tribunal did not accept that they had been committed by the NPA. 16 Thirdly, even if, contrary to its view, both the extortion and the three robberies had been committed by the NPA for a Convention reason, the Tribunal concluded that there existed as of March 2000 (the date of its decision) no real chance that the NPA would attempt to harm him again if he were to return to the Philippines. The Tribunal reached that conclusion in reliance on the fact that neither Mr Ordeniza personally nor his family had suffered any adverse consequences during the two years for which Mr Ordeniza had resided in the Philippines after the robbery of September 1997, nonetheless though he had not, during that time, resumed the making of his former monthly payments. 17 As to the fourth of the Tribunal's four propositions, given that, as I have already mentioned above, the body which, on Mr Ordeniza's case before the Tribunal, had persecuted him in the past for a Convention reason, and which would again persecute him in the future for a Convention reason if he should return to the Philippines, was not an agent of the government of the Philippines, it will be apparent that crucial to the ultimate decision of the Tribunal on Mr Ordeniza's application was the conclusion which it reached on the question whether, if he should return to the Philippines, Mr Ordeniza would be afforded effective protection by the government of the Philippines. 18 As to that question, the Tribunal was not satisfied that, even if the NPA were to attempt to harm Mr Ordeniza again in the future if he were to return to the Philippines, the government of that country would be unable to afford him effective protection against such attempted harm. (I note that the Tribunal made no express reference in its statement of findings and reasons to the issue of the Filipino government's willingness, as opposed to its ability, to afford Mr Ordeniza effective protection if he should return to the Philippines. However, I treat the Tribunal as having implicitly made a finding on the former, as well as on the latter, issue, especially since it framed the "effective protection" question as being whether such protection "would be available" to Mr Ordeniza in the Philippines: compare my reasons for judgment in Sunarso v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 125 at 131, [31]-[34].) 19 Before me, Mr Ordeniza made, both in written and in oral submissions, a number of criticisms of the decision of the Tribunal. Those criticisms were in turn criticised by the Minister as amounting in truth to nothing more than attacks on the merits of the Tribunal's decision, rather than on that decision's legality. In any event, the Minister also submitted, no attempt was made in the course of those submissions to tie any of the criticisms being made to any of the permissible grounds of judicial review set out in s 476 of the Act. As I understood him, Mr Ordeniza himself conceded in his oral reply before me that, to some extent at least, the Minister's strictures had been justified. However, even in light of the Minister's criticism and his concession, Mr Ordeniza still made no attempt at that stage of the proceeding to tie any of his criticisms of the Tribunal's decision to any of the permissible grounds of judicial review set out in s 476 of the Act. 20 While it was certainly true that Mr Ordeniza made no attempt in the course of his submissions before me to tie any of his criticisms of the Tribunal's decision to any of the permissible grounds of judicial review set out in s 476 of the Act, what was even more striking about Mr Ordeniza's submissions before me was the fact that such criticisms as he made of the Tribunal's decision were restricted only to the first two of the four propositions which I have set out above (see [14]-[15]). He made no submission before me that there existed some judicially-reviewable error in the Tribunal's conclusion that the absence of any adverse consequences for Mr Ordeniza personally or for his family in the two years succeeding the 1997 robbery meant that, whatever the NPA may have done to him in the past, there was no real chance that it would seek to harm him again in the future if he were now to return to the Philippines (see [16] above). Even more crucially, regarding what Mr Ordeniza characterised before me as the Tribunal's satisfaction that, if he were to return to the Philippines, the authorities would be able to provide him with adequate and effective protection ([18] above), his position was that "[n]o challenge may be made to this finding" and that that finding was one which "one has to accept". 21 Mr Ordeniza's concentration solely on the first two of the four propositions which I have set out above and his failure to attack either of the last two of them was, in my view, necessarily fatal to the success of his application before me. 22 In Minister for Immigration & Multicultural Affairs v Kandasamy [2000] FCA 67 (Hill, Whitlam and Carr JJ, 10 February 2000, unreported) Whitlam and Carr JJ (with whom Hill J relevantly agreed (see at [31])) pointed out (at [51]) that a finding by the Tribunal of the availability of effective protection in a refugee claimant's country of nationality had two consequences. 23 One was that any fear on the refugee claimant's part of being persecuted for a Convention reason could not be treated as being well-founded. That in turn meant (among other things) that any unwillingness on the part of the refugee claimant to avail himself or herself of the protection of his or her country of nationality could not be said to be owing to a well-founded fear on the refugee claimant's part of being persecuted for a Convention reason. 24 Another consequence was that the refugee claimant could not be said to be unable to avail himself or herself of the protection of his or her country of nationality. The refugee claimant would have a realistic choice of availing himself or herself of the protection of his or her country of nationality and reliance on that country would be of practical utility. 25 In the present case, the Tribunal's "effective protection" finding had the consequences referred to in Kandasamy and therefore justified a conclusion by the Tribunal that Mr Ordeniza was not a refugee within the meaning of Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol, regardless of the correctness of the conclusions reached by the Tribunal on the other matters with which it dealt. Mr Ordeniza's failure to impugn that finding before me has the consequence for his application for review which I have already foreshadowed. 26 Before I conclude these reasons for judgment, however, there is one further matter to which I wish to advert briefly. 27 It may be that the Tribunal's failures to be satisfied that the NPA had committed both extortion and robbery against Mr Ordeniza for a Convention reason can be subjected to justifiable criticisms (although not necessarily those made before me by Mr Ordeniza). However, I do not know where that ability takes one in the present proceeding. As I have already implied a number of times in these reasons, Mr Ordeniza identified in his submissions before me no particular judicially reviewable error said to flow from the Tribunal's failures to be satisfied of those matters, nor would I consider it appropriate for me to seek to construct a case for him by identifying any such error on his behalf. However, I should say that, in so far as the Tribunal's failures to be satisfied of those matters might be said to be errors in fact-finding on its part, there being evidentiary material before it which should have caused it to reach the contrary conclusions (that appearing to be the tenor of Mr Ordeniza's submissions before me), I have, in a number of cases, already made plain my position that a decision-maker's failure to find a fact to exist, even though the evidentiary material before the decision-maker suggests its existence, does not enliven the ground of review set out in par 476(1)(g) of the Act: see, for example, Aung v Minister for Immigration & Multicultural Affairs [2000] FCA 1562 (3 November 2000, unreported) at [38]. 28 However, it is unnecessary to pursue further the matter to which I have just referred for the reason which I have given earlier. 29 In the circumstances, Mr Ordeniza's application for review must be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate: Dated: 5 February 2001 Solicitor for the Applicant: Mr M Newman Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 December 2000 Date of Judgment: 5 February 2001