Khanh v Minister for Immigration and Multicultural Affairs

[1998] FCA 286

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 313 of 1996

BETWEEN:	PHAM CONG KHANH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		WHITLAM J
DATE OF ORDER:		1 APRIL 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

1. The applicant pay the respondent’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 313 of 1996

BETWEEN:	PHAM CONG KHANH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	1 APRIL 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The applicant is a Vietnamese national who arrived in Australia on 6 June 1993 and applied for refugee status on 4 February 1994.  Following an interview on 17 May 1994, the respondent’s delegate rejected his application on 27 May 1994.  The applicant then applied for review of that decision.  The Tribunal conducted a hearing on 17 November 1995, and on 18 March 1996 affirmed the delegate’s decision.

The “Convention reasons” relied upon by the applicant were religion and political opinion.  The statement of the Tribunal’s reasons for decision comprises 22 pages.

The amended application to the Court states the following grounds:

“1.The Tribunal erred in that it failed to take into account relevant considerations, namely:

(a)that the Applicant was unable to resume work as a teacher and school principal after his return to his home village in 1985; and

(b)that the Applicant was unable to practise his religion by attendance at Church.

2.The Tribunal erred in that it found, as material facts upon which it based its decision as follows:

(a)that the Applicant has been able to live a normal life in his local region; and

(b)that the Applicant has not practiced [sic] his religion for many years

both of which facts did not exist.

3.The Tribunal erred in that:

(a)it directed itself that the question for it to determine was whether the Applicant was at risk of detention on return to Vietnam because the government believes that he will encourage Catholics to oppose the government of Vietnam,

(b)but failed to direct itself that, if it were satisfied that upon return to Vietnam, the Applicant would be unable to resume his former occupation of teaching or be unable to attend Church freely, or a combination of such circumstances, he would thereby face a real risk of persecution within the meaning of the Convention.

4.The Tribunal’s decision was unreasonable in that, on the materials before it, it ought to have found that the Applicant was a refugee within the meaning of the Convention by reason that:

(a)the Applicant was unable to resume his former occupation; and

(b)was unable to practice [sic] his religion by attending Church

as a result of his religion, his membership of a particular social group or his political opinion.

5.The Tribunal erred in that it found inferentially, that the Applicant was not “of particular interest to the authorities during this period (post 1985) because of his past political or religious activities”, which finding was not open to the Tribunal on the material before it, and it thereby reached its decision contrary to Section 476(e) [sic] of the Migration Act 1958.”

It will be observed at once that paragraphs 1 and 4 refer to grounds that are not available under s 476(1) of the Migration Act 1958 (“the Act”). The way counsel for the applicant developed his argument it became apparent that the challenge was to the fact-finding by the Tribunal. The faint suggestion of a s 476(1)(g) ground in paragraph 2 did not emerge in the course of his submissions. The Tribunal’s finding set out in paragraph 5 was said to demonstrate a failure to assess the applicant’s claims of obstacles to his employment and religious observance amounting to persecution. But this ground too was conflated with the attack on the Tribunal’s fact-finding.

Counsel for the applicant led me through a mass of material before the Tribunal in order to impugn what he identified as the key findings of the Tribunal under the heading “Credibility and findings of fact” at pages 17-20 of the statement of its reasons for decision.  Counsel concluded his analysis by reference to the well-known judgments of Kitto J in Holloway v McFeeters (1956) 94 CLR 470 at 484-488 and in Jones v Dunkel (1959) 101 CLR 298 at 305-308. They were, of course, running down cases involving jury trials. Kitto J’s comments on the distinction between inference and conjecture concerned the evidence necessary to sustain a jury verdict.

But s 476(1)(a) of the Act expressly acknowledges the fact-finding role of the Tribunal. Its findings of fact cannot be judicially reviewed as an error of law, even if thought to be lacking in logic: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 356.

Moreover, as counsel for the respondent correctly submits, the inferences drawn by the Tribunal were reasonably open on the material before it.  So far as the applicant’s credibility is concerned, the Tribunal had the advantage of seeing him give his evidence.  A reading of the transcript confirms how significant that was in allowing the Tribunal to reach its conclusions.  The Tribunal is not bound to refer to every piece of evidence before it.  In particular, I should say too that the Tribunal appears to have considered the question of serious harm which might amount to persecution.

The role of the Court under Pt 8 of the Act is a limited one. Fact-finding and the merits of the applicant’s claims are to be decided by the Tribunal. The applicant has not shown that the Tribunal’s decision involved an error of law. The application is dismissed with costs.

I certify that the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated:             1 April 1998

Counsel for the applicant:	R B Wilson
Solicitors for the applicant:	Janice Vu & Associates
Counsel for the respondent:	R M Henderson
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	7 October 1997
Date of judgment:	1 April 1998