N97/13683 [1997] RRTA 270 (30 January 1997)

Catchwords: Communist; Political Opinion; Remote and Insubstantial.

This is an application for review of a decision made by a delegate of the Minister for Immigration and Ethnic Affairs under the Migration Act 1958 (the Act) to refuse to grant the Applicant a protection visa.

The Applicant, who is a national of Philippines, arrived in Australia in 1996. The Applicant applied to the Department of Immigration and Ethnic Affairs (the Department) for a protection visa on 9 July 1996. The delegate's decision was made on 20 January 1997. The Applicant was notified by letter dated 20 January 1997 and applied for review of the decision by this Tribunal on 19 February 1997.

I am satisfied that the application for review is valid and that the Tribunal has jurisdiction to review the decision.

On 2 June 1997 the Tribunal wrote to the Applicant at the address provided by the Applicant in her application for the review. The Applicant did not return a Tribunal pro-forma, Request for Hearing indicating that she wished to attend the hearing scheduled for 2 July 1997.

The letter of 2 June 1997 informed the Applicant that she must phone the Tribunal to advise whether or not she wished to attend a hearing.

It also informed her that she had to return the enclosed Request for Hearing form within 14 days of the date of the letter and:

If you do not do these two things, the hearing will not take place and the Tribunal may make a decision on the evidence it already has...

As no response had been received by 30 June 1997 I proceeded to make this decision.

The criteria for the grant of a protection visa are set out in s.36(2) of the Act and Part 866 of Schedule 2 to the Migration Regulations (the Regulations).

A criterion for the grant of a protection visa is that, at the time of the decision, "the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol": s.36(2) of the Act and cl.866.221 of Schedule 2 to the Regulations. "Refugees Convention" means the 1951 Convention relating to the Status of Refugees. "Refugees Protocol" means the 1967 Protocol relating to the Status of Refugees: s.5(1) of the Act. Australia is a party to the Refugees Convention and the Refugees Protocol, and has protection obligations to people who are refugees as defined in those instruments.

The relevant part of Article 1 of the Refugees Convention defines a refugee as any person who:

owing to 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...

To come within this definition, an applicant must first be outside his or her country of nationality. Second, the applicant must have a well-founded fear of being persecuted. Third, the persecution feared must be for one of the five Convention reasons - "race, religion, nationality, membership of a particular social group or political opinion". Finally, the applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country.

Whether an applicant satisfies the Convention definition is to be assessed upon the facts as they exist when the decision is made (MIEA & RRT v Mohinder Singh (1997) 142 ALR 191).

The material to make findings of fact is that contained in Departmental file 96/004046, submissions made to the Tribunal for the review and independent material cited throughout the decision.

The Applicant's claims can be summarised as follows:

The Applicant stated that her fear of return to the Philippines was based on a previous relationship she had with a person who was with the rebel group.

She said that person had harassed her and she feared that harassment would continue if she returned to the Philippines.

In her application for the review of the decision the Applicant stated that she had tried to obtain documents from her home country without success. No comment was made on the nature of these documents.

On 13 December 1996 the Department sent a letter to the Applicant. That letter contained information and reports from the following sources:

Those sources indicate that the communist movement has declined in strength dramatically from its peak in the eighties to the present time. It is beset by problems of internal divisions and effective counter insurgency measures from the government of the Philippines.

The Areas of influence have decreased to jungle areas in northern Luzon, Mindanao, the Visaya Islands and Negros.

According to details on her application for a protection vis the Applicant did not live in any of those areas.

The information also states that only people who are considered to be of high profile or major enemies of the Communist Party of the Philippines (CPP) risk being targeted by the organisation.

In addition to the above material I also have the following:

Reuters Business Briefings 16 April 1997 CX22232

This material reports that the division in the communist movement has resulted in one arm being involved in peace talks whilst another arm has linked with another group of insurgents making a force of 500 in the Visaya Island region.

The Applicant's claims are based on a fear of persecution for political reasons as a consequence of her association with a man who was actively engaged in the communist movement.

The Applicant has provided an account of harassment by rebels which is uncorroborated by any independent evidence.

In the matter of Randhawa v MILGEA [1994] FCA 1253; (1994) 124 ALR 265 (Black CJ, Beaumont and Whitlam JJ), Beaumont J. observed (at page 278) that a liberal attitude concerning proof of persecution in the context of an application for refugee status " should not, however, lead to 'an uncritical acceptance of any and all allegations made by suppliants'".

McHugh J stated in Chan, at 428, that under the 1951 Convention "It was unlikely ... that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality."

I have considered the Applicant's claims against the independent information from a wide range of sources, several from DFAT, the executive arm of the Australian government.

The independent information before me leads me to find that the Applicant's home is in an area of the Philippines which is not under communist control or influence. There is an established government which has actively opposed communist insurgency and is now engaged in peace negotiations with the mainstream communist group. There is an established police force in the country and a stable government in power. (See: US State Department Country Reports on Human Rights Practices.)

Based on the independent evidence before me in this matter I find that the Applicant does not face any "real chance" of persecution for a Convention reason since any risk to her is "remote" and "insubstantial". That being the case, any fear the Applicant may have in this regard is not well-founded.

Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for the grant of a protection visa.

The Tribunal affirms the decision not to grant a protection visa.