AZAAW v Minister for Immigration and Citizenship
[2010] FCA 925
FEDERAL COURT OF AUSTRALIA
AZAAW v Minister for Immigration and Citizenship [2010] FCA 925
Citation: AZAAW v Minister for Immigration and Citizenship [2010] FCA 925 Appeal from: AZAAW v Minister for Immigration & Anor [2010] FMCA 265 Parties: AZAAW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: SAD 65 of 2010 Judge: LANDER J Date of judgment: 27 August 2010 Catchwords: MIGRATION – appeal from Federal Magistrate – judicial review – jurisdictional error – whether Refugee Review Tribunal had considered appellant’s entire complaint.
Held: Appeal dismissed.
Legislation: Migration Act 1958 (Cth) ss 414, 418 Cases cited: Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 cited
Applicant WAWE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 applied
AZAAW v Minister for Immigration & Anor [2010] FMCA 265 affirmed
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
NABE v Minister for Immigration and Multicultural Affairs (2005) 144 FCR 1 citedDate of hearing: 23 August 2010 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 65 Counsel for the Appellant: Mr S Ower Solicitor for the Appellant: McDonald Steed McGrath Counsel for the Respondents: Mr K Tredrea Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 65 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: AZAAW
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
27 AUGUST 2010
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 65 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: AZAAW
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
27 AUGUST 2010
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This is an appeal from an order of a Federal Magistrate made on 21 April 2010 dismissing the appellant’s application for judicial review and ordering the appellant to pay the respondents’ costs of the proceeding fixed in the sum of $5,000.
The appellant is a Vietnamese citizen who arrived in Australia on 26 November 1999. On 7 November 2008 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. On 31 January 2009 the first respondent’s delegate decided to refuse to grant the visa. On 16 June 2009 the Refugee Review Tribunal (RRT) affirmed the decision under review.
On 21 July 2009 the appellant applied in the Federal Magistrates Court for the issue of the constitutional writs to quash the RRT’s decision and to require the RRT to review the first respondent’s delegate’s decision not to grant the appellant a Protection (Class XA) visa according to law and seeking the costs of the application.
As I have said, the application was dismissed on 21 April 2010.
To understand the issues on appeal requires an understanding of the RRT’s decision.
The appellant claimed that he feared persecution due to political opinions imputed to him as a result of living in Australia over a period of nine years and because of his absence from Vietnam during that period, his previous escape attempts, as well as difficulties arising from the fact that he was not on the household register and held strong anti-Communist opinions.
The appellant said that he was born in Vietnam on 30 April 1949 and was raised by his parents who were members of a rural working family in Tien Giang Province. His home town was Dien Hy where his parents owned a small rice field and supported the family by working in that rice field.
The appellant was, he said, one of seven children of his parents. After he finished his secondary education he began working in the rice fields. He was 26 years old, he said, and married with three children when the war broke out in Vietnam in 1975. He was not involved in any political activities during the war and never joined the South Vietnamese Army.
After the Communist Government assumed power, the Government became very repressive and freedom was denied to all people.
He said that when the Communist Government came to power he began to look for ways of getting out of Vietnam and he said his efforts to leave Vietnam came to the attention of the Communist authorities and, as a result, in 1979 he was arrested and charged with anti-Communist activities. He said he was incarcerated for a period of about three months and during his detention was repeatedly interrogated. During those interrogations he was repeatedly hit and bashed. He was accused of being a United States spy and being anti-Communist, and being involved in anti-Communist activities.
He said he was never charged and never taken before a court, and after about three months he was released. He said that during the time he was detained he was afraid for his life. When he was released he was in a very weak state. He returned home and eventually returned to farming activities. He said it was a condition of his release that he stay at home and work in the rice fields.
He said that between 1979 and 1999 when he came to Australia he lived very quietly. However, during this period he made two further attempts to escape from Vietnam which were unsuccessful and resulted in his further detention, interrogation and torture. Although he was involved in market gardening activities he made a very poor living and had little money. One of his daughters migrated to Australia in about 1994 or 1995 and as a result the family’s circumstances improved because she was able to send money home to support her parents and her siblings.
The appellant did not become involved in any political activities, although he never stopped hating the Communist regime.
Eventually he made an application for a Visitor visa to come to Australia to see his daughter. When he left Vietnam he was quite unwell and he intended to stay in Australia if he could. When his Visitor visa expired after about 12 months he stayed in Australia and did not return to Vietnam. He knew that he was in Australia unlawfully, but did not know how he could go about legalising his position.
The appellant said in his statement to the first respondent’s delegate:
40.I am very afraid of going back to Vietnam. I believe that if I go back to Vietnam I will be persecuted by the Vietnamese authorities because of my political opinion, my imputed political opinion, and because I have grossly overstayed my visa in Australia.
41.I believe that I would be detained and questioned at the airport and that I would be subjected to ongoing investigations and persecution because the authorities would believe that my decision to remain away from Vietnam unlawfully for so long was a reflection of my political opposition to the Communist Government. I believe that I would be punished severely and would certainly be detained and questioned.
On 8 May 2009 the appellant appeared before the Tribunal to give evidence and present arguments in support of his application for review.
The RRT advised the appellant at that hearing that it was at something of a disadvantage as the first respondent’s Departmental file appeared to have been lost. It advised the appellant that its understanding of the case was confined to the summary of the appellant’s claim set out in the primary decision and the review application, along with the additional material submitted in support of the review application.
The RRT said that it had assumed that the file would be found by the time of the hearing but noted that it also had an obligation to determine the review application, preferably within the statutory timeframe of 90 days.
At that hearing the Tribunal indicated that it was not satisfied about three separate matters:
·What past persecution he was actually claiming to have experienced and when?
·Whether there is in fact a real chance that he will experience serious harm capable of amounting to persecution in the reasonably foreseeable future if he returns to Vietnam; and, if so
·What the reason for that might be.
The RRT questioned the appellant about the number of times he had been detained and the circumstances in which the detention had occurred.
He said that he had been detained on three occasions and all for the same reason – trying to leave the country illegally. He said he was not charged with any offence, nor was there any record of his imprisonment or any penalty.
The appellant was asked about the manner in which he had obtained his passport and he said that his passport was genuine but had been obtained by proffering a $2,000 bribe which had been used to get his name back on the household register. The money for the bribe and for his airfare had come from his mother and siblings through money sent from Australia by his daughter.
He said that his wife was still living in Vietnam and she and her family members are working as farmers farming on land owned by his wife. His wife had visited him four to five months before the hearing when he was in detention.
He said in answer to a question from the RRT that if he had to return to Vietnam he would be not on the household register list and he would have to bribe officials to obtain registration. He would have to be “deaf and dumb” if he were to return because he would not be able to involve himself in any political activities or express his political opinion if he returned to Vietnam, although he said he had no desire to do so.
He said that if he were returned to Vietnam he would again try to flee from the local area and he would be oppressed by reason of that. He admitted that he had obtained a new Vietnamese passport since his arrival in Australia which had been issued in Canberra on 24 November 2008.
Subsequent to the hearing, the appellant’s legal representatives made submissions in support of his application.
The RRT found that the appellant was a national of Vietnam who had undergone the tribulations to which the appellant had referred. In particular, it found that the appellant had been detained, interrogated and tortured for three months in approximately 1979 and on two subsequent occasions in the 1980s. It found that as a result of his past experiences the appellant had a genuine fear of Vietnamese authorities. However, the RRT found that the authorities on the other hand did not bear any antipathy towards the appellant. It found:
82.On the applicant’s own evidence, with the exception of having to pay a bribe to be reinstated on the household register, the problems which he experienced occurred more than 20 years ago. The applicant’s evidence is that after he was last detained for two weeks for trying to depart Vietnam illegally in the early to mid 1980s, he has had no serious problems. He refers to having been forced to labour on public works for short periods in around 1987 and 1988, but given the short periods involved the Tribunal does not accept that this amounted to persecution for the purposes of s 91R of the Act. In any event, it is not clear that this requirement was imposed for any Convention reason.
It addressed his claim that he had been punished in the past for trying to escape the country. It however found that since that time he had left Vietnam legally and without apparent difficulty, although he had to pay a bribe to get himself back on the household register before he could obtain a passport. He had since been issued with a further passport by the Vietnamese authorities in Australia. It concluded therefore there was no evidence to suggest that the appellant would be prevented from leaving Vietnam again in the future or punished for attempting to do so.
It addressed his claim that he would be targeted because of his membership of a particular social group, namely persons who have returned to Vietnam after an extended period of unlawful residence in another country. It noted that the appellant claimed that as a consequence he would have difficulty being reinstated on the household register and as a result therefore he would come to the attention of local authorities and be subject to harassment and punishment.
The RRT accepted that the group, of which the appellant claimed to be a member, might be identifiable by characteristic or attribute common to all members, being the prolonged unlawful immigration status outside of Vietnam. However, it was not satisfied that a social group of that kind could be distinguished from society at large: Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at 400.
However, even if that were not the case the RRT reasoned, the evidence did not support the appellant’s proposition that he would be persecuted by reason of his membership group by being refused reinstatement on the household register or harassed or otherwise punished.
The RRT was not satisfied that there was evidence before it that the Vietnamese authorities had a policy of antipathy towards ex-patriots who had been residing illegally overseas for prolonged periods.
As a result, the RRT concluded that whilst the appellant had been persecuted in the past in Vietnam, it could not find that he faced a real chance of serious harm capable of amounting to persecution in the reasonably foreseeable future if he were to return to Vietnam whether for a Convention reason of his actual or imputed political opinion, or his membership of a particular social group or for any other reason.
Before affirming the first respondent’s delegate’s decision, the RRT said:
95.The evidence before the Tribunal in the form of the STTARS report clearly supports the proposition, which the Tribunal accepts, that the applicant suffered physical and psychological trauma as a consequence of his detention and mistreatment in Vietnam in the late 1970s and 1980s. Furthermore, the report indicates that the applicant continues to experience both physical pain and psychological symptoms of unresolved trauma, from which it might be inferred that the psychological symptoms risk being aggravated if he is forced to return to Vietnam where the past persecution occurred, although further medical evidence would be required to sustain this inference.
96.However, bearing in mind these past experiences and ongoing symptoms, the length of time the applicant has spent in Australia albeit unlawfully, and the fact that he has the support of close family members here, it may be appropriate for the Minister to consider intervening in this matter on public interest rounds pursuant to s 417 of the Act. That is, of course, a matter entirely at the Minister’s discretion.
It was from that decision affirming the first respondent’s delegate’s decision that the appellant sought judicial review in the Federal Magistrates Court.
The two grounds for review before the Federal Magistrate were first, that the RRT had committed jurisdictional error by failing to comply with the duty imposed by s 414 of the Migration Act 1958 (Cth) (the Act) to conduct a review of the delegate’s decision. In support of that ground the appellant claimed that the RRT did not have before it the Department’s file relating to the appellant at the time that the RRT made its decision and therefore the RRT failed to consider all of the materials before the delegate in the course of conducting its review of the delegate’s decision.
Secondly, the appellant claimed that the RRT committed jurisdictional error by failing to comply with the duty imposed by s 414 of the Act to conduct a review of the delegate’s decision. In support of the second ground, the appellant claimed that if he were to return to Vietnam he would be subjected to harassment by the authorities and forced to attend meetings and re-education, but that the RRT failed to consider whether such a claim constituted a well-founded fear of persecution for a Convention reason but rather erroneously conflated that claim into a further claim made by the appellant relating to reinstatement of household registration.
The Federal Magistrate addressed s 414 and s 418 of the Act and said that the failure of the Department to provide its file to the RRT did not of itself give rise to jurisdictional error when the RRT proceeded to hear and reach determination. Moreover, the material which was provided in the file was provided to the RRT in any event and in those circumstances the appellant was in no way prejudiced.
The Federal Magistrate said in relation to this first ground:
15.In this case the applicant does not contend that any particular document that ought to have been provided and was not provided led to any distortion or incompleteness about the Tribunal’s consideration of the matter. It was a general contention that the review function required by s.414 could not be fulfilled without all of the material. It is not a submission that is supported by the authorities and I am unable to discern that the absence of the file created or contributed to any error on the part of the Tribunal let alone a jurisdictional error.
In relation to the second ground the Federal Magistrate identified the appellant’s claim before the RRT at paragraph 76 of the RRT’s reasons:
The applicant claims to be a (sic) risk of harm from Vietnamese authorities. He says he has been imprisoned in the past for trying to escape from that country, and that if he returns he will be harassed, and forced to attend meetings and re-education as happened to him in the past.
The Federal Magistrate noted that this aspect of his claim was contained in a report from a STTARS counsellor, which report was before the RRT.
The Federal Magistrate addressed this claim and concluded:
True it is that despite it having been noted twice in the Tribunal’s decision (once in the description of the evidence and once under the heading of “Findings and Reasons”), the claim in relation to attending meetings and re-education is not specifically rejected. But such a claim can be fairly regarded as being constitutive of the harassment or other punishment which the Tribunal found would not occur to the applicant in the event of his return to Vietnam. Attendance at re-education meetings or other meetings is properly regarded as the imposition of a form of punishment or as an act of harassment. It is not so peculiar an experience for the applicant to undergo (or to fear that he may undergo) such that it required the discrete rejection of it by the Tribunal in its Reasons. The Tribunal’s rejection of the risk of harassment or punishment can be fairly and logically taken to include a rejection of the risk of attendance at meetings or re-education camps. It may have been preferable for the contention to be specifically dealt with and rejected but I do not think the Tribunal fell into error by not doing so.
For those reasons, the Federal Magistrate dismissed the application.
The grounds of appeal to this Court are:
1.The learned Magistrate erred in holding that The Refugee Review Tribunal had considered whether the Appellant’s claim that, if he were to return to Vietnam, he would be subjected to harassment by the Authorities, and forced to attend meetings and “re-education”.
2.The learned Magistrate erred in not holding that in the circumstances the Tribunal had committed jurisdictional error.
On this appeal the appellant presses only the second ground which was relied upon in the Federal Magistrates Court. The first ground relating to failure of the Department to provide the RRT with the Department’s file is not pressed on appeal.
The appellant contended that the RRT had failed to address his complaint that if he were to return to Vietnam he would be subject to meetings and re-education. It was contended that the RRT dealt with his claim that he would be subject to harassment and punishment, but not with his claim that he would be subject to re-education.
In support of this ground, the appellant argued that the failure by the RRT to make an express finding could give rise to an inference that the RRT failed to consider a claim which would amount to jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 247-248; NABE v Minister for Immigration and Multicultural Affairs (2005) 144 FCR 1 at 17-21.
The appellant contended that whilst such an inference would not arise where a potential finding on any particular matter would be subsumed in a further finding of greater generality, this was not such a case and, in the Federal Magistrate so reasoning, the Federal Magistrate erred.
Although the Federal Magistrate reasoned that the lesser claim was included in the findings of harassment and of punishment, that did not answer, the appellant contended, the more general claim that irrespective of his status the appellant would be required to attend re-education meetings and to act “deaf and dumb”.
The appellant contended that the RRT failed to consider whether the appellant’s claims were well-founded and amounted to persecution, and was based on a Convention reason, namely an imputed political opinion.
The respondent accepted that if the RRT failed to deal with an integer of the appellant’s claims such would amount to jurisdictional error by reason of a failure to carry out a review under s 414 of the Act, but denied that such an error had occurred in the proceeding before the RRT.
The respondent also accepted that the appellant did claim that he would be required to attend meetings or re-education if he were to return to Vietnam. The question the respondent contended was whether the RRT had failed to address this aspect of the appellant’s claim.
The respondent contended that the RRT recorded the appellant’s claim and repeated it, and then later dealt with it in its wider findings that the appellant would not be subject to harassment or otherwise punished.
The respondent contended that on a fair reading of the RRT’s decision the appellant’s claim that he would be required to attend meetings or re-education was addressed as part of his wider claims of persecution and rejected.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, the majority (Brennan CJ, Toohey, McHugh and Gummow JJ) said at 271-272:
When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a Court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of the administrative decision maker. The Court continued:
“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well-settled. They recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
At the RRT hearing the appellant was asked to enlarge upon his complaint if he were to return to Vietnam and was not able to go back on to the household register. The RRT recorded:
The applicant was asked what he meant by his claim that he would have to be “deaf and dumb” if he returned. He said that he would have to be totally obedient to all their demands and instructions, for example, attending meetings or re-education. Asked on what basis he thought he would be required to do this sort of thing, the Applicant said that that was the common practice of the local authorities, and he had to do it in the past, although he could not recall when he last had to attend re-education.
I have already set out that part of its reasons headed “Findings and Reasons”, when the RRT dealt with this aspect of the appellant’s claims: [40].
Again in that part of its reasons described as “Findings and Reasons”, the RRT said at paragraph 89:
The applicant has also claimed that he will be targeted for reason of his membership of a particular social group comprising individuals who have returned to Vietnam after an extended period of unlawful residence in another country. He claims that as a consequence he will face difficulty being reinstated on the household register after such a long absence and that he will come to the attention of the local authorities and be subjected to harassment and punishment.
It appears clear from a fair reading of the RRT’s reasons that the RRT has properly identified the claim made by the appellant, in particular that he will be subject to re-education and considered that claim within the overall claim made by the appellant that if he were to return to Vietnam he would be subject to harassment and punishment of different kinds. The RRT has traced the claim through its reasons in the manner described and in the end has concluded at paragraph 93:
However, even if that were not the case, the evidence does not support the proposition that the applicant would in fact be persecuted in the way claimed namely by being refused reinstatement on the household registration, harassed, or otherwise punished.
Again, a fair reading of the RRT’s reasons indicate that in that regard the RRT was considering the particular claims for harassment and punishment to which the RRT has referred earlier in its reasons.
In Applicant WAWE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, French, Sackville and Hely JJ said, at 641:
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence and advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it the public reasons may raise a strong inference that it has been overlooked.
In this case the RRT positively identified the appellant’s claim amongst the myriad of claims made by the appellant. In its findings and reasons where it discussed those claims, it positively identified the appellant’s claim that he would be at risk at being forced to attend meetings and re-education if he were returned to Vietnam. Next, in its findings and reasons, it again positively identified the appellant’s claim that he was at risk of persecution by reason of his membership of a particular social group and identified precisely the social group upon which the appellant claimed and that if he were to return to Vietnam he would find it difficult to be reinstated on the household register and therefore be liable to harassment and punishment. In that same chapter, that is in its “Findings and Reasons”, the RRT then dealt with and dismissed the appellant’s claims.
It cannot be said that the RRT has failed to address the appellant’s claim that he would be liable to attend meetings and attend re-education if he were to return to Vietnam. That was one aspect of the harassment and punishment of which the appellant complained which was identified by the RRT in its reasons and with which it dealt directly.
In my opinion, it cannot be said that the RRT failed to exercise its jurisdiction either constructively or at all.
The appeal must be dismissed and the appellant must pay the first respondent’s costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 27 August 2010
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