De Leon v Minister for Immigration & Multicultural Affairs [1999] FCA 52

FEDERAL COURT OF AUSTRALIA

De Leon v Minister for Immigration and Multicultural Affairs [1999] FCA 52

IMMIGRATION – review – natural justice – whether the Tribunal must provide legal materials to the applicant – whether incorrect application of law to the facts – whether harm feared by the applicant was for a Convention reason – what constitutes being a member of a particular social group or holding a political opinion – whether being associated with criminal activities constitutes membership of a particular social group – whether anti-drug beliefs constitute holding a political opinion.

Migration Act 1958 Chan Ye Kin v Minister of Immigration and Ethnic Affairs cited Applicant A and Another v Minister of Immigration and Ethnic Affairs and Another (1997) 142 ALR 331 cited Thalary v Minister for Immigration and Ethnic Affairs (Mansfield J, 4 April 1997, unreported) cited Magyari v Minister of Immigration and Multicultural Affairs (O'Loughlin J, 22 May 1997, unreported) cited Velmurugu and Another v Minister for Immigration and Multicultural Affairs and Another (1997) 44 ALD 253 cited

Eshetu v Minister of Immigration and Ethnic Affairs (1997) 142 ALR cited

MINNETTE DE LEON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 814 OF 1998 HILL J 3 FEBRUARY 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 814 OF 1998

BETWEEN: MINNETTE DE LEON

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: HILL J

DATE OF ORDER: 3 FEBRUARY 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the Minister's costs. 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 NG 814 OF 1998

BETWEEN: MINNETTE DE LEON

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: HILL J

DATE: 3 FEBRUARY 1999

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant, Minnette De Leon, applies to the Court for review of a decision of the Refugee Review Tribunal ("the Tribunal"), affirming the decision of the respondent Minister, or his delegate, not to grant to her a protection visa. The appeal is limited to the grounds permitted under the Migration Act 1958 ("the Act"). 2 In her application to the Court, Ms De Leon raised two grounds. The first is that she says she was not provided by the Tribunal with the materials upon which it based its findings. The second stated ground is that the Tribunal's decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the Tribunal. 3 There was no dispute as to the facts. Ms De Leon advised the Tribunal, shortly before the hearing was due to commence, that she wanted a decision made on the papers and that she would like to submit a letter to be taken into consideration by the Tribunal. On the day the hearing was to take place she submitted a letter in which she argued that her claim fell within the provisions of article 1A(2) of the 1951 United Nations Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Convention"), which forms the basis of the criteria by which the Minister, or on appeal the Tribunal is required to be satisfied before a protection visa can be granted. 4 The Tribunal's factual finding was based, in part, upon this letter and, in part, upon a written statement which Ms De Leon had made with her application. In that statement she indicated that she had met her husband in the United States in 1992 and that they had lived together for about four years, during which time she discovered that the husband had had dealings with drug traffickers in California. Her fear is that drug lords in the Philippines were aware that she knew a lot about their activities through her association with her husband and that they would harm her. She said in her application: "I just do not want to get involved with anyone at all. They have threatened my life and said that I am a marked person and that I should not expect to live long." 5 The Tribunal accepted this statement, found that Ms De Leon was familiar with the modus operandi of the drug dealings with which her husband had been involved, and accepted that this formed the basis of a subjective fear that she would be harmed. In its reasons for decision, however, the Tribunal found against Ms De Leon on the basis that her fear was not related to any Convention reasons. Relevantly the Convention defines a refugee to be: " ... a 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 protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or owing to such fear, is unwilling to return to it." 6 The Tribunal said: "The Tribunal finds that a subjective fear is not related to any of the conventional reasons, i.e. it is not for reasons of grace, nationality, religion, membership of a particular social group or political opinion. She fears harm as a result of criminal activities engaged in by her husband and his accomplices. Fear of criminal conduct has been discussed: Thalary v Minister for Immigration and Ethnic Affairs (Mansfield J, 4 April 1997, unreported); Magyari v Minister for Immigration and Multicultural Affairs (O'Loughlin J, 22 May 1997, unreported) and Velmurugu and Another v Minister for Immigration and Multicultural Affairs and Another (1997) 44 ALD 253. These cases confirm the absence of a nexus between fear of criminal conduct and any convention reason." 7 The first ground put forward by Ms De Leon, who appeared unrepresented with the assistance of an interpreter, was said to be the failure on the part of the Tribunal to provide her with details of various cases to which the Tribunal referred, cases such as Chan Ye Kin v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379; Applicant A and Another v Minister of Immigration and Ethnic Affairs and Another (1997) 142 ALR 331. For present purposes I am prepared to accept the Full Court decision in Eshetu v Minister of Immigration and Ethnic Affairs (1997) 142 ALR that, notwithstanding the particular language of the Act which appears to oust denial of natural justice as a ground of review, the language is not sufficiently expressed so to do. That is a matter which may or may not be clarified by the High Court in due course. 8 Even if natural justice were a ground of decision the doctrine of natural justice would have no application to what is argued here. No doubt before coming to a factual finding adverse to an applicant, a tribunal, as a matter of procedural fairness, must give a person against whom that finding is to be made the opportunity to rebut it. That may require and ordinarily will require the Tribunal to give an applicant an opportunity to consider factual material which might lead to an adverse finding being made. However, the Tribunal is not bound to advise an applicant coming before it of the legal authorities upon which it bases what must be said to be an unexceptionable discussion of the law, as in the present case. 9 The second ground of review sought to be made out involves a submission that the category of persecution that Ms De Leon relies upon comes within either persecution by reference to Ms De Leon being a member of a social group, or by virtue of her being a person who holds a particular political opinion, both Convention grounds. The social group to which Ms De Leon claims to belong, and in respect of which her persecution is said to exist, is her membership of the family of which she and her husband are the constituent parts. No doubt membership of the family can be described as membership of a social group in some situations, but her case is not really that she is being persecuted by virtue of being a member of a family. It is that she is being persecuted by virtue of her association with her husband and his association, of course, with the criminal element surrounding drugs. 10 In my view there is no error of law in the Tribunal finding that her persecution was not by virtue of her belonging to a social group. The political opinion for which Ms De Leon claims to be persecuted is in essence her anti-drug beliefs. No doubt persecution for political beliefs is one of the forms of persecution which forms a criteria for refugee status. The Tribunal found, and in my view did not err in finding, and indeed could not have found otherwise, that her fear of persecution was unrelated in a relevant sense to political opinion. In the result the application must be dismissed. It may be that Ms De Leon can apply to a Minister for the exercise of discretion that she be permitted to stay, but whatever power the Minister may have to permit her to stay is not a power which the court itself has, or could exercise. 11 I will order the applicant to pay the Minister's costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate: Dated: 3 February 1999

Dated: 3 February 1999

The Applicant appeared in person

Counsel for the Respondent: Mr R Lancaster

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 3 February 1999

Date of Judgment: 3 February 1999