MARLON MANINGAT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT This proceeding is an application for review of a decision of the Refugee Review Tribunal ("the RRT") made on 27 August 1997, which affirmed the determination of the ministerial delegate that Mr Maningat ("the applicant") was not entitled to the grant of a protection visa under the Migration Act 1958 (Cth) because he was not a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). A "refugee" is defined in Article 1 of the Convention as a person who: "...owing to a 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." The application for review of that decision was filed on 30 September 1997. Background The applicant is a national of the Philippines. He undertook secondary eduction in the Philippines and worked there as a self-employed businessman. In April 1996, he arrived in Australia on a visitor visa. The basis of the applicant's claim for refugee status was that in the Philippines he witnessed the abduction of a military officer by three Communists. He claims that he knew two of the abductors, as they lived in a town nearby and says that they noticed him looking at them as they drove off after the incident. He also claims that they came looking for him at his house a couple of days later. He fears that if he returns to the Philippines, his life will be in danger because he witnessed the abduction. He does not claim that as the result of his political convictions or association either his life or security is in danger or that he will be persecuted. His fear arises from the circumstance that he was a witness. On 5 June 1997, after the decision was made by the ministerial delegate, the RRT wrote to the applicant advising him that a hearing before the RRT had been scheduled for 21 August 1997. The applicant did not attend the scheduled hearing. Nor did he provide a reason for his absence. Application for Review Although not clearly expressed in the terms provided by the Migration Act 1958 (Cth), the application for review raises two issues. First, the applicant suggests that the RRT erred in law in finding that the applicant did not in fact witness the abduction incident. Second, the applicant maintains that the RRT erred in law in deciding that, even if the incident did take place, it was not an event or incident that would fall within the "political opinion" Convention ground. These two issues are repeated in the applicant's submissions before me at the hearing. Persecution The RRT, after assessing all the evidence, was not satisfied that the applicant actually witnessed the incident in question. In making this finding the RRT considered and gave weight to a cablegram MN8189 from the Department of Foreign Affairs and Trade dated 22 May 1995, which reads: "The likelihood of Filipinos of any political colour being threatened by elements of the NPA is, in the current climate extremely low...the threat of "revenge killing" from elements of the NPA, even from the extreme left, has become rare under the Ramos administration...People have become targets of the NPA if they were found to be "assets" of the military, but even these instances are rare." The RRT also had regard to later reports (see Deutsche Presse Agentur, 10 April 1996; Agence France Presse, 21 June 1996 and 23 December 1996; Reuters, 25 June 1996), which confirm that the New People's Army ("the NPA") is a diminishing force, that its activities are mainly restricted to the eastern region of Bicol, and that the insurgency may be halted altogether as a consequence of peace negotiations. The RRT, in arriving at its finding, also gave weight to the fact that no serious harm had befallen the applicant to date. The finding by the RRT that the incident in question did not occur, is clearly a finding of fact and it is not the role of this Court to set aside such findings of fact but only to see whether there has been error in principle of a relevant nature. However, I entertain substantial reservations as to whether the general information relied on by the RRT, concerning the broad political background in the Philippines, can properly be used as the basis to reject the specific evidence of Mr Maningat as to the occurrence of a particular incident even when coupled with the objective fact that the applicant had in fact suffered no serious harm. Nevertheless, in the final analysis the finding does not make a difference to the outcome because, even if the incident did occur, it is apparent that the same ultimate conclusion would have been reached by the RRT. The alternative submission for the applicant is that the RRT erred in finding that the abduction incident was not one which would justify a finding of persecution for a "political opinion" held by him. The applicant argues that his predicament, which resulted from the abduction incident, amounts to persecution for his "political opinion" because the perpetrators of the crime were members of the Communist Party of the Philippines. The applicant, in his written submissions, states: "I was a witness to a politically motivated murder and even if I was not politically involved the whole situation should be viewed on its entirety. The fact remains that I am being pursued by communists advocating a political ideology contrary to democracy, thus, my life still remains in danger." The applicant's case is not that he will be persecuted for beliefs or opinions held by him but rather that he happened to be a witness to an abduction by persons who were members of the Communist Party and who, therefore, it could reasonably be inferred held political opinions based on Communist doctrines. However, the Convention definition is concerned with the political opinion held by the applicant rather than of those who carried out the abduction. Fear of reprisal or being harmed or "silenced" because a person might be able to give evidence against the perpetrators of a violent or criminal act, without more is not a fear of persecution for a Convention reason. The word "opinion" contained in the Convention is of central importance in this case. The circumstance that the act was carried out by Communists does not mean that the witness was in danger of persecution by reason of opinions held by him. The fact that a person is in fear because he witnessed an abduction is, taken by itself, a neutral circumstance under the Convention. Such fears might equally arise as the result of being a witness to a killing by criminal groups such as the Mafia, where, for example, there may be no suggestion of persecution for holding a political opinion. There was no evidence that he was in any danger of persecution because he did not hold or agree with Communist doctrines. On the evidence it was, in my view, open to the RRT to reach the conclusion that even if the incident occurred it did not justify a finding of persecution for a Convention reason. Accordingly, I dismiss the application. I make no order as to costs. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin J