REFUGEE APPEAL NO. 461/92
AT AUCKLAND

Before: R.P.G. Haines (Chairman)
  S.R. Sage (Member)
  G.W. Lombard (Non-voting Member)
Counsel for the Appellant: Ms D.M. Law
Appearing for the NZIS: No appearance
Date of Hearing: 12 May 1993
Date of Decision: 1 March 1994

DECISION

This is an appeal against the decision of the Refugee Status Section of the New Zealand Immigration Service declining the grant of refugee status to the appellant, a citizen of the Republic of the Philippines.

THE APPELLANT'S CASE

The appellant is a thirty year old single man who, until he came to New Zealand, lived on the island of Luzon in the Republic of the Philippines. One brother lives in Manila and the remaining brother lives in New Zealand and holds a residence permit.

After graduating from the F University in Manila with a Bachelor of Science and Commerce degree in 1982 the appellant joined a bank in whose employ he remained until he came to New Zealand in June 1990. At that time he held the position of Loans Bookkeeper.

For the first five years the appellant worked in metro Manila. Because the bus trip from his home village to metro Manila takes at least an hour he chose to live in Manila with his mother's youngest sister. However, he was later transferred to the B branch of the bank. B is much closer to his home village and the appellant resumed living at home with his parents, commuting each day to work. At the B branch of the bank the appellant worked as Current and Savings Bookkeeper which placed him in the middle order of the hierarchy of the branch.

On the morning of 16 March 1990 the appellant's bank was robbed. The appellant was sitting at his desk when he heard someone shout "it's a hold-up" and the bank employees were instructed to put their heads on their desks. The appellant did as he was told. He was then approached by a man and asked for the key to the safe. The appellant pointed out where the key was kept and after a space of approximately twenty to thirty minutes the robbery was over. At the appeal hearing the appellant told the Authority that the man who spoke to him was wearing a hat and dark glasses. His hands were marked with tattoos. He did not see his face but was sure that he was not wearing a mask. The appellant had never seen this man before. The appellant himself saw only one man but later found out that possibly three in all had been involved in the robbery.

When the police arrived they asked all those present during the robbery to make a statement and for assistance in providing descriptions of those involved. According to the appellant, other witnesses were reluctant to get involved and while providing statements to the police, did not identify the perpetrators. The appellant, however, resolved that as a law-abiding citizen it was his duty to assist the police from whom he had learnt that the robbers were suspected to be members of the New Peoples Army, the armed wing of the Communist Party of the Philippines. The appellant stated that it was not easy to provide the police with a description of the robber who spoke to him as the man, as mentioned, had been wearing a hat and sunglasses. The appellant stated:

"However, I was still able to offer a sufficient description for the police to draw an identikit picture of him."

Statement of evidence para 2.3

A day after the identikit picture was drawn the police showed the appellant photographs of "NPA rebels" and from these the appellant identified a [LB], who the appellant described as a commander in the NPA.

Three days later the appellant heard that strangers in his village had been asking after him. They wanted to know who his family was, when he went to work and the time he usually arrived home from work. He also noticed that strangers were following him home from work and he became fearful for his life. He sought protection from the police who acknowledged the danger to the appellant but told him that his safety could not be guaranteed. The appellant approached the manager of the bank and asked for a transfer away from B as he was afraid he would be stabbed in his home, such events being common in the Philippines, according to the appellant (statement of evidence paragraph 3.2).

The appellant's request for a transfer was agreed to and he was sent to a branch of the bank in metro Manila. That transfer took place some time in April 1990. Until that time the appellant continued to live at home and commute to the bank in B each day. He came to no harm during this time and conceded that if the NPA had wished to harm him during this period they could have done so without difficulty.

Within four days of transferring to metro Manila the appellant noticed two of the strangers who had followed him in B. These people, either separately or together, followed him after work to the house in which he was living in metro Manila. He was able to identify them from a distance of approximately twenty feet, said that he was followed about three times per week and that it was clear that the men knew where both he lived and where he worked. Had they wished to harm or kill him they could have done so but the appellant did not in fact come to any harm.

In his oral evidence the appellant said that he first began thinking of leaving the Philippines after his transfer to Manila and when he found out that he was still being followed. After discussing the matter with his mother it was decided that he would come to New Zealand to see his brother. It so happens that the appellant's brother was granted residence status in New Zealand on 18 April 1990. A visitor visa was issued to the appellant by the New Zealand Embassy in the Philippines on 18 May 1990 and on 20 June 1990 he arrived in New Zealand.

It is claimed that in September 1990 several armed men in the vicinity of the appellant's parents' home enquired as to the appellant's whereabouts. See the letter dated 11 October 1991 at page 115 of the Immigration Service file. It is also claimed that approximately two years later, namely on 25 May 1992, armed men visited the appellant's parents demanding to know the appellant's whereabouts. When no information was given to them they shot some of the family's farm animals. See the letter dated 2 June 1992 from the Deputy Station Commander of the local police station at M, B at page 170 of the Immigration Service file.

Since that time there have been no reports of visits to the parents' home by armed men or of any other untoward events.

The appellant believes that it is commonplace in the Philippines for the NPA to liquidate their enemies and he fears that were he to return to the Philippines he will be killed by the NPA. It is claimed that there are two Convention reasons present. First, that in the context of the Philippines standing up for the existing order and for established law and order is a political act. In the alternative, it is argued that the NPA has in any event imputed to the appellant a political motive as he was responsible for identifying a member of the NPA who was involved in the robbery. It is said that the NPA is now persecuting the appellant because it perceives him to be an enemy of that organization. In the further alternative it is argued that the appellant is a member of a particular social group defined as "those perceived by the NPA as their enemies": closing submissions on behalf of the appellant, paragraph 4.4. Or alternatively as "all Philippine citizens who are opposed or believed by the NPA to be opposed to its cause": further submissions on behalf of the appellant at para 2.3.

THE APPELLANT'S RESIDENCE APPLICATION

The appellant's application for refugee status is the most recent of several attempts to gain residence status in New Zealand. The initial application for residence was made in November 1990 on humanitarian grounds, those grounds being essentially the same as those later advanced in support of his refugee application. The residence application was declined by the Immigration Service by letter dated 22 March 1991 and this was followed by an appeal to the Minister. That appeal was declined by letter dated 18 July 1991. The refugee application was lodged on 7 October 1991.

The fact that prior to lodging an application for refugee status an appellant has on earlier occasions taken steps to gain a residence permit does not of itself affect his credibility. What is relevant in the present case, however, is that since 1990 the appellant has made several statements concerning events in the Philippines and subsequent developments. On the issue of credibility it is relevant to enquire whether the different accounts are consistent. It is also relevant to take into account the appellant's admission to the Immigration Service that one of the work references tendered by him in support of his residence application is a false document.

Returning briefly to the chronology of events, it is to be recalled that the refugee application was lodged on 7 October 1991. The Refugee Status Section interview took place on 30 April 1992 and the report compiled by the officer was sent to the appellant in order to provide him with an opportunity to comment upon it, request corrections or to provide any additional information. Lengthy submissions were in fact received from the appellant together with a psychiatric assessment from Dr Antonio Noblejas, a psychiatrist employed at the Papakura Day Clinic Psychiatric Unit. This report records that on 8 May 1992 the appellant was seen due to:

"Increasing absent-mindedness and panic/anxiety attacks for the past twelve months."

The report records:

"During my interview he initially presented himself as a polite, conversant young male who is very tense and close to tears at some points. He has a flat affect. He becomes agitated at the thought of his experience and has difficulty in recalling incidents in the past 2 years. At the time of interview he became panicky at the thought of going back home. On several occasions he has asked for me to repeat my questions which gives an indication of poor concentration. There are no signs or symptoms to suggest thought disorders or hallucinatory experience.

Impression: A 28-year old single Filipino who is suffering from moderate panic/anxiety attacks with some depressive features. It is my opinion he will get worse once he goes back home because of his fear for his life that is almost close to a delusional nature. It is very likely that his condition will develop into a major psychiatric breakdown, due to a poor coping mechanism. It is also possible that those people are still actively seeking him and therefore a real danger to his life is there."

The Authority disregards the last sentence as it is well outside the province of the author's field of expertise.

The appellant's application for refugee status was declined by letter dated 28 May 1992 on the principal grounds that the appellant's fear is not well-founded and in any event there is an absence of a Convention reason. The Immigration Service was also of the view that the appellant was not a credible witness. As to the appellant's panic/anxiety attacks, the Immigration Service was of the opinion that this condition could be treated in the Philippines. This last observation drew a response from Dr Noblejas in a letter dated 3 June 1992. The letter expresses the belief that the only solution to the appellant's difficulties is for him to remain in New Zealand. It may be thought that the letter is written in terms more appropriate for an advocate than for a psychiatrist. Notwithstanding our expressed reservations, we have nevertheless taken both letters from Dr Noblejas into account.

THE ISSUES

The Inclusion Clause in Article 1A(2) of the Refugee Convention relevantly provides that a refugee is 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 the 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."

We rely on the formulation of the relevant issues arrived at in this Authority's decision in Refugee Appeal No. 11/91 Re S (5 September 1991):

1. Is there a genuine fear?

2. Is the harm feared of sufficient gravity to constitute persecution?

3. Is the fear well-founded?

4. Will the State fail in its duty to protect the appellant from serious harm?

5. Is the harm feared related to any one of the five grounds recognized in the Refugee Convention, or is it related to other factors?

In our decision in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991) this Authority held that in relation to issue (3) the proper test is whether there is a real chance of persecution.

ASSESSMENT OF THE APPELLANT'S CREDIBILITY

In view of the reports from the psychiatrist the Authority has approached the issue of credibility with particular care. It is clear from those reports that there is nothing to suggest that the appellant suffers from thought disorders or hallucinatory experiences. Rather, he is a person who suffers from moderate panic/anxiety attacks with some depressive features.

The Authority was able to observe the appellant as he gave evidence for the best part of half a day. After making due allowance for the anxiety suffered by him, the Authority has reached the conclusion that the appellant is not a credible witness and we do not accept his evidence in any respect. The particular matters we have taken into account are:

(a)The appellant's demeanour. The appellant is an entirely unconvincing witness, evasive, ready to protest that he cannot recall details when this suits his purpose, but is able to recall other aspects of his case comprehensively. We concluded that he is a person who will go to some lengths to adapt his case as the circumstances may require and is a person who is untroubled by the truth.

(b)An example of these qualities is shown in relation to his evidence concerning his passport. His passport was issued on 26 February 1990, only some eighteen days prior to the bank robbery. On one view, this sequence of events was entirely fortuitous and that there is no significance in the fact that the passport was issued on 26 February 1990, the New Zealand visa issued on 18 May 1990 and the appellant's arrival in New Zealand was on 22 June 1990.

When interviewed by the Refugee Status Section the appellant was asked (Immigration Service file page 146) why he had obtained a passport. The appellant's recorded reply is:

"Planned to travel to New Zealand."

At the appeal hearing the appellant's evidence was initially the same. He said that after being transferred to Manila and after discovering that he was still being followed he decided to come to New Zealand. In particular, he stated that he applied for a passport only after he had decided to come to New Zealand. When it was pointed out to the appellant that the passport was issued on 26 February 1990, some number of days before the bank robbery, the appellant changed his evidence and said that he had applied for a passport for his own purposes, namely for the purpose of travelling to Hong Kong. He admitted that his first answer, namely that he had only applied for the passport after deciding to come to New Zealand was not a truthful answer but claimed that he was nervous. Later, in re-examination he said that at the Refugee Status Section interview he did not understand the difference between a passport and a visa. The Authority rejects this evidence. The appellant is an intelligent man and while it is common for a permit to be confused with a visa, it stretches the imagination that a person who claims to have a university degree and who held a relatively senior position in a bank would not understand the difference between a passport and a visa. The appellant's response was entirely unconvincing. It is also to be noted that at both the Refugee Status Section interview and in his first response at the appeal hearing concerning the passport, his claim was that it had been obtained for the purpose of travel to New Zealand. His change of evidence that it was obtained in order to travel to Hong Kong is in our assessment an invention to cover an embarrassing gap in his case.

(c)The appellant has benefited from fortuitous timing on more than one occasion. We have already referred to the fact that just eighteen days prior to the bank robbery the appellant's passport was issued. There is also the fact, however, that the Immigration Service letter of decline of the refugee application is dated 28 May 1992. According to the appellant's brother (who was called as a witness) the decline was communicated to one of their brothers living in the Philippines within a matter of days. It is claimed that at that stage it was learnt that on 25 May 1992, just three days before the decline letter, there had allegedly been the visit to the parents' home by armed men who had killed livestock. It is to be remembered that on the appellant's own account nothing had happened in the Philippines since September 1990. Yet suddenly, virtually contemporaneously with the decline of his refugee application in New Zealand and after almost two incident-free years, there is this claimed ominous development in the Philippines. The Authority has concluded that these coincidences are not the result of the hand of fate, but rather the result of the appellant's efforts to fabricate a case.

(d)Furthermore, the appellant has been inconsistent in his various accounts.

The appellant was interviewed on 12 March 1991 in connection with his residence application. At that interview it is recorded that in addition to himself there were four other witnesses from the bank. However, at the Refugee Status Section interview the appellant said there was only himself, two tellers and customers in the bank at the time of the robbery. He then amended this to himself, two tellers and a security guard. At the interview of March 1991 the appellant also said that he knew all of the people who robbed the bank and knew their faces although they were wearing masks. This claim he has subsequently abandoned. He also claimed at the 12 March 1991 interview that he had received four threatening letters from the NPA. At the Refugee Status Section interview he claimed that this was a mistake and that there had in fact been no letters. He also told the interviewer in March 1991 that he had received a letter from [Mr CT], Personal Manager of the bank, advising him that the robbery case had been resolved. At the Refugee Status Section interview the appellant could not remember the name of the bank manager and claimed that he did not know about any such letter. He also claimed at the March 1991 interview that he had transferred to the Manila branch and worked there for some eight to nine months. This could not be correct as the alleged bank robbery was on 16 March 1990, he transferred to the Manila branch in April 1990 and arrived in New Zealand in June 1990. When given an opportunity by the Refugee Status Section to comment upon the discrepancies based on the March 1991 interview, the appellant made no challenge to the accuracy of the observations but claimed (Immigration Service file page 154) "psychological damage" and it was in that context that the psychiatric reports were obtained. The Authority's assessment of the appellant is that his reference to psychological damage and to anxiety are intended to camouflage the fact that he has been creating his case as he goes along.

As mentioned, at the interview of March 1991 the appellant said that he knew all the people who robbed the bank, and although they were wearing masks, he saw their faces. Were this true, it would explain how the appellant was able to identify one of the perpetrators from the police photographs. But at the appeal hearing the appellant said that he did not see the face of the man who spoke to him, noticed only that he was wearing dark glasses and a hat and that he was not wearing a mask. The hat and sunglasses were also mentioned at the Refugee Status Section interview. In his written statement presented at the appeal hearing the appellant stated (para 2.3) that even though the man had been wearing a hat and sunglasses the appellant was able to offer a sufficient description for the police to draw an identikit picture of him. The Authority found this latter claim highly improbable and given the clear conflict with his earlier claims dismisses his evidence as it is an invention.

(e)Central aspects of the appellant's account are inherently improbable. In particular the appellant claimed that he remained in B for approximately one month after the robbery even though he was being followed and in fear of his life. During this period, although having ample opportunity to do harm to the appellant the NPA did not take this step. Likewise, after the transfer to Manila there was ample opportunity for the NPA to do harm to the appellant but this step, again, was not taken. The Authority found it hard to understand why, after going to some lengths to track down the appellant and to then follow him to Manila that the NPA, knowing that the appellant was assisting the police in their enquiries, did not strike against him over the three month period which preceded his departure for New Zealand.

(f)The appellant has not been frank in his accounts of the visits allegedly made by the NPA to his family home. At the Refugee Status Section interview on 30 April 1992 (page 150) the appellant stated that his family in the Philippines had never been subjected to any threats or physical harassment (paras 15 and 22). When responding to the Refugee Status Section report the appellant in his letter dated 14 May 1992 referred, for the first time, to an incident in April 1990 when unknown people forced themselves into his parents' house searching for him. It is to be remembered that at this time (April 1990) the appellant was being closely followed, both in B and in metro Manila. On his account, the NPA knew his every movement. His claim that late one night unknown people forced themselves into his parents' home is bizarre and quite at odds with the sophistication hitherto displayed by the NPA operatives who were aware of the appellant's every movement. It was even stranger that at the appeal hearing the appellant told us that it was only in 1991 that he found out about this April 1990 incident - just before he applied for refugee status. It is to be remembered that that application was lodged on 7 October 1991. The appellant's brother, on the other hand, told the Authority that he knew about this incident before the appellant had even left the Philippines and that he had recounted the event to his brother after he arrived in New Zealand. It is strange that neither the appellant nor his brother (who attended the Refugee Status Section interview) mentioned this April 1990 incident to the officer at the Refugee Status Section interview on 30 April 1992.

(g)We turn now to the appellant's claim that in early September 1990 a further incident occurred in the Philippines. By letter dated 14 October 1991 the appellant's brother submitted to the Immigration Service a letter from the Chief of Police of M, B dated 11 October 1991 certifying that in the first week of September 1990 several armed men had been enquiring as to the appellant's whereabouts in the vicinity of his parents' house. In relation to this incident the appellant told the Refugee Status Section (in his letter dated 14 May 1992) that:

"The incident that happened on the month of September 1990, was not mentioned by our parents, we came to know till we received the document sent by the police."

This assertion was flatly contradicted by the appellant in his evidence at the appeal hearing. He said that both he and his brother became aware of the incident as early as December 1990 when he telephoned his mother at Christmas. This was at least ten months prior to the receipt of the police letter. The appellant's brother, on the other hand, told the Authority that he and the appellant only found out about the September 1990 incident from the police letter of 11 October 1991. The appellant's evidence is at odds with his own brother's evidence. The appellant's evidence is also notable for the fact that he claims that in the September 1990 incident the armed men had "rushed in" through the doors to the home and asked his mother and father where the appellant was. The letter from the police, however, says only that the men were "near the vicinity of the house" when they enquired as to the appellant's whereabouts. The appellant's brother, when confronted with these differences, said that the correct version is that stated in the letter. The Authority concludes that it has not been told the truth either by the appellant or by his brother.

(h)Dealing specifically with the appellant's brother's evidence, it was clear to the Authority that over the luncheon adjournment he had spoken to the appellant (who was then still giving evidence) for it became clear from the brother's evidence that he was anticipating points even before the Authority had put its questions. We were not inclined, in the circumstances, to place reliance on his evidence. In any event, this witness was in New Zealand at the material time and is entirely dependent upon the appellant and other members of his family for his knowledge of the facts. He could not in these circumstances give direct evidence of any material kind.

We turn now to the documentation produced by the appellant. A large number of documents have been produced in support of the various applications lodged by the appellant and we have taken each document into account. We have not had the opportunity to see and hear the authors of the various letters. In determining the weight to be given to the documentation we have taken into account:

(a) The appellant's admission that he has produced a false document to the Immigration Service, namely a work reference (Immigration Service file page 33). At pages 55 and 94 of the file are to be found the appellant's admission that he paid someone in the Philippines to obtain this document for him.

(b) The appearance of some of the documents raises real questions as to their authenticity. At page 114 of the file there is a letter from the mayor of M certifying, in very general terms, to the fact that the appellant is involved in a robbery case as a witness and is under threat. The document at page 115 is from the Chief of Police of M certifying, as mentioned, that in the first week of September 1990 several armed men in the vicinity of the appellant's home had enquired as to his whereabouts. Both documents have the appearance of being produced on a manual typewriter. The similarity in typeface is said by the appellant to be attributable to the fact that M is a small town and probably only has three typewriters in it.

The appellant has, however, submitted a further letter from the M Police Station. It is from the Deputy Station Commander and is dated 5 March 1992, only five months after the letter from the Chief of Police of M dated 11 October 1991. This letter was submitted under a covering letter from the appellant dated 20 March 1992. See pages 126, 127 and 128 of the Immigration Service file. The letter from the Deputy Station Commander has clearly not been produced on a manual typewriter. It bears all the hallmarks of having been produced on a high quality word processor and printer. This much is apparent from the typeface and the layout of the document. It would seem surprising that the small outpost of M which possessed only three manual typewriters in October 1991 would by March 1992 be in possession of a word processor and printer. The Authority also notes that the letter from the Deputy Station Commander bears a remarkable similarity to the covering letter from the appellant himself both in terms of the quality of the printing, the typeface and the layout. In these circumstances the Authority believes that it is fully justified in treating all the documentation received from the appellant with a great deal of suspicion.

(c) There is also the fact that neither of the letters from the police are on an official letterhead. Such "letterhead" as there is has been typed on to the sheet of paper contemporaneously with the balance of the document. Similarly, the letter from the Notary Public dated 6 May 1993 has a typed letterhead, and even then a letterhead of the most perfunctory nature, namely:

"Republic of the Philippines
Province of B
Municipality of M"
The author of this letter is described as:
"[name withheld]
Notary Public
PTR No. 1993
M, B"

This letter claims to set out the names and curriculum vitae of the three NPA individuals allegedly involved in the bank robbery. The author does not, however, condescend to particulars. That is, the source of the information is not disclosed nor is there any information as to who the author is (apart from being "[name withheld], Notary Public" nor is there any information as to how he was able to obtain the information.

In the foregoing circumstances the Authority is not prepared to give weight to any of the documents produced by the appellant. Our decision is reinforced by the adverse credibility finding we have made in relation to the appellant himself.

Our conclusion is that as we do not accept the appellant's evidence each of the five issues itemized earlier in this decision must be answered in the negative.

ALTERNATIVE GROUNDS FOR DECISION FEAR NOT WELL-FOUNDED

Even if the Authority is wrong in its conclusions as to the appellant's credibility, the outcome of this case would be no different as it is our alternative finding that even if the appellant's account is accepted, his alleged fear of persecution is not in any event well-founded for the following reasons:

1. The NPA had ample opportunity between mid-March 1990 and mid-June 1990 to do harm to the appellant at a time when he was actively assisting the police and when the NPA was keeping him under close surveillance both in B and in metro Manila. However, at no time was the appellant harmed or was any attempt made to harm him.

2. The last reported incident occurred in May 1990 and since then, on the appellant's own admission, nothing further has happened. In view of the considerable effluxion of time that has now occurred the prospect of the appellant coming to harm in the Philippines is now no more than conjecture. We adopt what we said on this topic in Refugee Appeal No. 29/91 Re SK (17 February 1992) at page 21:

"In distinguishing between conjecture and inference helpful reference can be made to the following quote from Jones v. Great Western Railway Co (1930) 47 TLR 39, 45 (HL) where Lord MacMillan stated:

"The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof."

The reference to "legal proof" is, of course, inappropriate in the context of a refugee determination process but the sense of the distinction between conjecture and inference is nonetheless tolerably clear."

On the facts we find that the appellant's fears are based on no more than conjecture.

3. In addition, developments in the Philippines have further reduced whatever danger the appellant believed he faced in 1990. For example, in the Department of State Country Reports on Human Rights Practices for 1991 - Philippines (February 1992) it is reported at 961-962 that in that year the NPA showed a declining pattern, reflecting a general decrease in guerrilla activity during the calendar year 1991. This is expanded upon at page 963:

"Assassinations by NPA hit teams operating in metropolitan Manila declined sharply in 1991. Only two were recorded for the year, compared with sixty in 1990 ... The decline in 1991 was due less to NPA restraint than to effective police work, which resulted in the arrest of several key leaders of the Alex Boncayo Brigade and the capture of the alleged director behind the NPA programme of urban terrorism, Romulo Kintanar."

In the Country Reports on Human Rights Practices for 1992 - Philippines (February 1993) at 637 the declining pattern of NPA activities is again remarked upon in the following terms:

"The Communist Party of the Philippines (CPP) and its armed wing the New People's Army (NPA), were also responsible for significant abuses of human rights - although they, too, showed a declining pattern, reflecting a general decrease in guerilla activity during the year. Early in its tenure, the new administration initiated substantive steps to end the 23-year-old Communist insurgency. These included formalizing amnesty for some 4,000 insurgents and military rebels who had laid down their weapons during the previous administration, and approving guidelines for the temporary release of several hundred political detainees, including national leaders of the CPP/NPA. The government later called for the expansion of the amnesty programme to cover both current combatants and those detained for committing criminal acts in pursuit of their political beliefs."

The appellant has produced an article from a Philippine newspaper published on 12 January 1993 reporting the killing of a police officer when a convoy of lawmen on routine patrol in the remote village of Moronquillo in San Rafael, Bulacan was attacked by NPA rebels.

As to this article, the Department of State Country Reports do not suggest that all hostilities have ended. It is clear, however, that the activities of the NPA show a declining pattern and that in 1991, the year immediately following the appellant's departure from the Philippines, only two NPA assassinations were recorded in metro Manila. It is also to be observed that the appellant is a civilian and therefore less likely to be a target in the kind of ambush referred to in the press clipping he has produced. He has produced no evidence to show that he would be at risk from the NPA were he to return to Manila at this distance of time.

ABSENCE OF CONVENTION GROUND

In any event, this appeal must fail for the further reason that there is a complete absence of a Convention ground.

POLITICAL OPINION

We deal first with the political opinion ground. It is to be remembered that the Convention requires that the feared persecution be "for reasons of" the appellant's political opinion. The determinative factor is the attitude taken by the feared agent of persecution: Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991) 10. In the present case there is no evidence whatsoever that the bank robbers and/or the NPA impute any political motive to the appellant. It is our assessment of the facts that the appellant has excited the interest of the robbers and/or the NPA simply because he is a witness.

PARTICULAR SOCIAL GROUP

As to the claim that the appellant is a member of a particular social group, it must again be remembered that before this limb of the Convention applies, it must be shown that the harm feared by the appellant is for reason of the appellant's membership of a particular social group. Even if it could be shown that the appellant belongs to a social group comprising "all Philippine citizens who are opposed or believed by the NPA to be opposed to its cause", this would not be enough. It must also be shown that the reason for his persecution is on account of, or for reason of, such membership.

In this regard, there is absolutely no evidence that the NPA regard Philippine citizens who are opposed or believed by the NPA to be opposed to its cause as comprising a social group, or that the persons themselves either form a social group or regard themselves as being members of such a group. For this reason, the attempt to rely on this limb of the Convention must fail. It is a topic we have addressed in much greater length in Refugee Appeal No. 3/91 Re ZWD (20 October 1992) at 59 et seq and in particular at 79.

The decision in Morato v Minister of Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417 (Fed CA) and in particular the judgement of Black CJ and French J supports our conclusion. Morato claimed to be a member of a social group comprising people who have "turned Queen's evidence". The majority judgement at 422 states that it might be doubted whether such an aggregation of persons could be called "a group" within the usual meaning of that word as applied to people but, in any event, emphasises that the Convention definition does not refer merely to membership of a group; it refers to a membership of a particular social group:

"The word "social" is an essential part of the definition and cannot be ignored as mere surplusage. At the very least, a particular social group connotes a cognizable group in a society, and cognizable to the extent that there may be a well-founded fear of persecution by reason of membership of such a group. In my view the appellant wholly failed to show that the particular social group he asserts is a cognizable social group in any society."

These comments apply with equal force to the claimed social group asserted by the appellant.

The majority decision at 420 is important also for emphasising the fact that the primary focus of this part of the definition is upon an aspect of what a person is - a member of a particular social group - rather than upon what a person has done or does. That is, there is a need to show that persecution is for reasons of membership of a group, rather than for an act or acts done:

"It may well be that an act or acts attributed to members of a group that is in truth a particular social group provide the reason for the persecution that members of such a group fear, but there must be a social group significantly cognizable as such as to enable it to be said that persecution is feared for reasons of membership of that group.

The doing of an act or acts of a particular character may, in some circumstances and together with other factors, point to the existence of a particular social group, but in this case it is only the common action of turning Queen's evidence that is said to define the group."

For the appellant it was submitted that his actions are not relied upon in order to determine the particular social group. Rather, his actions in assisting the police caused him to become an involuntary member of a social group as defined earlier. In the Authority's view this distinction is entirely artificial and unjustified. It is the actions of the appellant in assisting the police which have led to the interest of the NPA, not his membership of a group defined as "all Philippine citizens who are opposed or believed by the NPA to be opposed to its cause". There is simply no evidentiary basis, nor indeed any basis in commonsense to interpret the facts in such a highly artificial and unreal manner.

RELOCATION

Finally, we turn to the issue of relocation. It is to be remembered that for a period of three months the appellant lived in the B area and also metro Manila and although he was followed, did not come to any harm. In addition, since his departure from the Philippines, NPA activity has decreased significantly. While the appellant has produced a letter from the Deputy Station Commander of the M Police Station, B to the effect that the police cannot protect the appellant, this letter, dated 5 March 1992, is at odds with the facts, namely that in metro Manila there were only two recorded NPA assassinations for the whole of 1991. Clearly the appellant will be able to find safety in the Philippines by relocating away from his home village, B and metro Manila. In this regard we record the concession made by the appellant's brother at the appeal hearing that in a large and populous country such as the Philippines, the appellant would be able to find safety. As a bank officer he will have many job opportunities available to him.

The question of relocation turns on two issues. See Refugee Appeal No. 18/92 Re JS (5 August 1992) and Refugee Appeal No. 135/92 Re RS (18 June 1993) 26:

1. Can the individual genuinely access domestic protection which is meaningful?

2. Is it reasonable, in all the circumstances, to expect the individual to relocate?

As to the first issue, it is clear from the Department of State Country Reports that meaningful domestic protection is available in the Philippines and that that protection is meaningful. We refer in particular to the effective police work remarked upon in the 1991 Report and to the substantive steps (remarked upon in the 1992 Report) being taken by the new administration to end the Communist insurgency. Given the proper concession that the appellant can find safety in the Philippines and that his occupation will open many employment opportunities for him, we find that it would be reasonable in all the circumstances to expect the appellant to relocate elsewhere in the Philippines away from his home village, the B area and, if necessary, away from Manila itself.

CONCLUSION

By way of summary our primary conclusion is that the appellant is not a credible witness and we do not accept his evidence in any respect. For that reason each of the five issues earlier referred to must be answered in the negative. However, even were we wrong in the assessment of the appellant's credibility we find:

1. The appellant's fear is not well-founded and there is no real chance of persecution were he to return to the Philippines.

2. The persecution feared by the appellant is not persecution for a Convention reason.

3. In any event, it would not be unreasonable to expect the appellant to avail himself of the protection of the government of the Republic of the Philippines by settling elsewhere in the Philippines away from his home, B and metro Manila.

For these reasons we find that the appellant is not a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is declined. The appeal is dismissed.

(Chairman)

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