MZYHC v Minister for Immigration
[2010] FMCA 745
•8 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYHC v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 745 |
| MIGRATION – Refugee Review Tribunal – review of decision to refuse protection visa. |
| Migration Act 1958 (Cth), ss.36(2), 424A, 424AA(a), 424AA(b) Labour Code 1992 of the Socialist Republic of Vietnam, Art. 37 |
| Applicant: | MZYHC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG1519 of 2009 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 19 April 2010 |
| Date of Last Submission: | 21 July 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 8 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nekvapil of Counsel |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the first and second Respondents: | Mr Mosley of Counsel |
| Solicitors for the first Respondent: | Clayton Utz |
ORDERS
The amended application filed 15 April 2010 and the application filed 26 November 2009 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum $7330.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1519 of 2009
| MZYHC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Refugee Review Tribunal on 29 October 2009 affirming the decision of the delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant a Protection (Class XA) visa (‘protection visa’).
Background
The applicant is a citizen of Vietnam. He lodged an application for a protection visa with the Department of Immigration and Citizenship on 6 October 2008.
On 24 December 2008, the delegate of the Minister refused to grant the applicant a protection visa. The applicant applied for a review of that decision on 14 January 2009.
On 30 October 2009 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
On 26 November 2009 the applicant applied to the Federal Magistrates Court for a review of the Tribunal’s decision.
The claims
The Tribunal member sets out the nature of the applicant’s claims:
[20] In his application for a protection Visa, the applicant claimed he had left Vietnam because of discrimination on religious grounds by the Vietnamese government and its officials. He claimed his membership of the Alliance of Christian Churches (the Alliance) meant that he had been subjected to a range of “harsh measures that the Vietnamese government has imposed upon the Alliance”.
[21] He claimed his fear was that if he were to return to Vietnam he would be summons to the local security office for questioning, arrested and detained and then brought before the People’s Court and sentenced to a “harsh imprisonment in order to prevent me from partaking in religious activities and to terrify other church members”.
The applicant in his statutory declaration dated 27 February 2009 pointed to a number of matters to establish his claim:
a)He converted to Christianity during his time in a refugee camp based in Hong Kong. When the applicant returned to Vietnam he acted as a freelance missionary.
b)The applicant claimed he was questioned twice in relation to his religious association.
i)The first questioning occurred in mid-2006 and concerned his relationship with two individuals who had previously been arrested for their religious practices.
ii)The second questioning occurred on 22 December 2007 and concerned a ‘group’ started by the applicant. This group regularly met at applicant’s house for the purpose of practicing their faith. The applicant claimed he was also interrogated on the issue of his proposed Christmas party.
c)The Tribunal recounts that the applicant claimed that on 22 August 2008, one day after he left Vietnam to attend the Christian Multicultural Conference in Sydney, the authorities came to his house to question his wife:
[29]…They asked her why I was going to Australia and they asked her about my relationship with the other people who were attending the conference. They told her I do not deserve to work for the government and that they would make sure I would not have a job when I returned. They accused me of damaging the government policy against religion in Vietnam because I was spreading Christianity. They threatened my family.…
d)On 27 August 2008 the applicant’s wife received a letter, giving notice that his employment at the local irrigation company was terminated. He claimed the termination was due to his religious activities.
e)On 14 November 2008, immediately after the applicant’s visa had expired, an arrest warrant for the applicant was issued. The applicant claimed he was accused of damaging the government’s policy on religion and working with people overseas to achieve this objective. Other conference attendees were questioned by authorities on their return. The applicant agreed this was standard practice for individuals returning from an overseas religious conference. His concerns are set out as follows:
[33] I believe that if I return to Vietnam I will be immediately arrested under the warrant of 14 November 2008. I do not believe I will receive a trial because these crimes are considered so serious.
…
[37]…In Vietnam Pastors are required to register with the government and attend government approved training before they can become Pastors. Therefore the authorities can control what Pastors do. Because I’m not a Pastor, I cannot be controlled in the same way. I also believe that I have been targeted because of the more active role I play in recruiting people to Christianity. I have converted approximately 100 people since 1994. I further believe the authorities are scared that if I return to Vietnam I would spread my Christianity. Therefore, because I am a missionary and not a Pastor, I believe I’ll be treated differently form the other conference attendees.
The Tribunal’s decision and findings
The Tribunal accepted the applicant practiced his faith as a Protestant. However, in light of independent reports on the issue of religious freedom in Vietnam the Tribunal rejected the claim that the applicant had a well founded fear of persecution for a Convention reason.
The applicant gave evidence of the non-political nature of his religious beliefs and practices, and that he held no position of authority in the church. The Tribunal found such evidence was the reason that the applicant had no profile for his religious beliefs or activities and therefore he had been of no interest to the authorities.
The Tribunal did not accept that the authorities visited the applicant’s home on 22 August 2008, threatening his family, or that his employment was terminated as a result of his religious activities. For over 15 years the applicant had the liberty to speak of his religious beliefs without government interference. Furthermore, the Tribunal found:
[104]…Having found the applicant left Vietnam legally on a passport issued in his own name and that he had no profile for his religious beliefs or activities, the Tribunal does not accept that the authorities had an adverse interest in his movements and would not have been aware of the purpose of his travel.
As to the arrest warrant, forensic inspection indicated the document submitted by the applicant was not the original. The applicant responded to the Tribunal’s investigation by providing a letter from the relevant Vietnamese Post Office advising that the parcel containing the original had been lost. A later response stated the document was a scanned and printed copy of the certified copy. These responses contradicted his earlier claim of providing the original warrant. Accordingly the Tribunal found:
[111]…the “Order of Arrest” document provided is not an original document as claimed and the applicant’s responses to the investigation of the document leads the Tribunal to find the applicant was not a witness of truth. (emphasis added)
The Tribunal went on to conclude:
[112]…there was never an arrest warrant issued for the applicant which leads the Tribunal to find the police did not visit his home either in August immediately after his departure to Australia or on 14 November 2008 the day after his Australia visa expired.
In light of the Tribunal’s findings on the applicant’s credibility, and that the authorities did not visit his home, it gave no weight to the statement of the applicant’s wife. The statement supported the applicant’s claim of authorities visiting his home immediately after he left for Sydney.
The Tribunal did not accept that the applicant is, or has been, of adverse interest to the authorities on the basis of his actual, or imputed, religious beliefs or practices and therefore there was no reason to fear future prosecution.
The Tribunal found the two alleged sessions in which the applicant was questioned by authorities did not constitute ‘harsh treatment’ or ‘persecution’ as claimed. In his evidence:
[122]…The applicant told the Tribunal that on neither occasion of being questioned had he been abused or physically harmed and was free to leave after a short period of time…
The applicant’s claim that his past religious activities or his attendance at the Sydney conference would lead him to be seen as a dangerous individual by authorities and face future persecution was rejected.
In light of independent information before the Tribunal and the confidentiality of information provided in a protection visa application, it found:
[125]…the Vietnamese authorities would not be aware of the applicant’s protection visa application and therefore he would not be targeted for serious harm on the basis that he had claimed asylum.
During the two sessions in which the applicant claimed he was interrogated, no enquiries were made as to his political persuasion. Together with the evidence that he had no official position in the church and had engaged in his religious beliefs for over 15 years without interference, the Tribunal found the applicant had no political profile either real or imputed. The Tribunal concluded the applicant did not face a real chance of persecution.
The Tribunal took into account his behaviour in Australia, including his attendance at the Sydney conference, concluding that:
[131] The Tribunal finds that the applicant’s conduct since arriving in Australia has been motivated by his Christian beliefs and also by his wish to strengthen his claims to be a refugee. …
The Tribunal concluded that the applicant did not have a well founded fear of persecution for a Convention reason and did not satisfy the criterion set out in s.36(2) of the Migration Act 1958 for a protection visa.
In his submissions the applicant claims the Tribunal’s decision was affected by jurisdictional error on three grounds:
a)No evidence for the findings of fact and inconsistent findings of fact;
b)Failure to accord natural justice; and
c)Failure to exercise the duty to review.
Ground 1: no evidence
The applicant claims the Tribunal made findings of fact, without probative evidence, when it found:
a)The termination letter did not disclose any reason for the termination of employment;
b)The applicant’s was not terminated due to his religious activities; and
c)That by implication, that the applicant was terminated for ‘deserting his post’, which was an ‘equally plausible explanation’.
Termination letter
The Tribunal found that the termination letter provided no reason for the termination.
The applicant points out the document states that the decision to terminate his employment was made:
In pursuance of sub-clause d clause 1 of article 37 of the Labour Code 1992 of the Socialist Republic of Vietnam.
There was no evidence of the content of the relevant code. At the hearing before me counsel relied on a copy of the code found on the internet. Whilst not admissible it does not appear that the code would be necessarily inconsistent as Article 37 appears to provide:
Chapter IV [LABOR CONTRACT]
…
Article 37
1- The employee working under a labor contract the terms of which range from one year to three years, or a labor contract to do a seasonal job or a specific job which lasts less than one year, is entitled to unilaterally terminate the contract before term in one of the following circumstances:
a/ The employee is not assigned the job or to the working place, or otherwise not assured the conditions of work already agreed in the contract;
b/ The employee is not paid fully or at the time stipulated in the contract;
c/ The employee is maltreated or subjected to forced labor;
d/ The employee or his/her family encounters such difficult circumstances that he/she cannot continue executing the contract;
e/ The employee is elected to a permanent post in a people's elected body or is appointed to an official post in the State apparatus;
f/ The employee is pregnant and must stop working by prescription of the doctor. (emphasis added)
Article 37(1)(d) allows for termination by the employee. The document in the court book is not inconsistent with the employer deciding when the term occurred in order to provide documentary records where an employee abandons his position.
Whether terminated due to his religious activities
The applicant argues that his wife’s statement supports the view that his termination was motivated on religious grounds. The applicant’s submission attempts to gain support from the proposition that it would be inconsistent for a termination letter to be issued if the employee unilaterally ended the contract (see para. 4.6 of his written submissions):
These inconsistencies could suggest that the termination had been improperly justified under a specific law to cover the fact that it was issued for illegitimate reasons.
The termination letter would in my view not be inconsistent with his deserting his job, and thus adds little to this question.
The Tribunal examined the circumstances surrounding the termination, saying:
[103] The Tribunal finds the timing extraordinary. The applicant who says he has been engaged in missionary activities for 15 years claims to have been issued with a termination notice by his long-term employer on the Tuesday following his leaving to go overseas on a legal mission the previous Friday.
The Tribunal relied upon the evidence that the applicant was allowed to leave Vietnam on a legally obtained passport and that he had no profile for his religious beliefs or practices. It was open to the Tribunal to find that he was not terminated from his employment as claimed.
Deserting his post
The applicant in his submissions asserts that Article 37 is inconsistent with the Tribunal’s implicit finding that the applicant’s employment was terminated for ‘deserting his post’. As set out above this does not appear inconsistent with Article 37(1)(d), even if the Code as found on the internet were admissible.
The Tribunal said:
[102]…the Tribunal suggested at the hearing, particularly in light of his claim that he had been engaged in religious activity for fifteen years and was so engaged when he was first employed and had continued his religious activities throughout the term of his employment, it was equally plausible that he was terminated for deserting his post rather than for his religious activities. [emphasis added]
Whilst identifying this as an alternative and plausible explanation, the actual finding of the Tribunal was only that “the applicant was not terminated because of his religious activities” (see para [103]). This finding was essentially a rejection of the applicant’s evidence. There was not a positive finding as to the reasons for termination which required specific evidence.
I therefore find no merit in this ground. It essentially sought a review on the merits which is not available in judicial review proceedings.
Ground 2: failure to accord natural justice
The applicant relied upon two issues in support of this ground:
a)The treatment by the Tribunal of an email from Pastor Boyd; and
b)An arrest warrant.
Pastor Boyd’s email
The applicant claims the Tribunal failed to provide him with particulars of Pastor David Boyd’s email. The particulars were requested by the applicant’s migration agent in the written submissions prior to the second Tribunal hearing. The applicant claims this was a failure to give particulars, as required by s.424AA(a) of the Migration Act, and that the conduct amounted to a failure to ensure the applicant understood the relevance of the information under s.424AA(b). The section provides:
424AA [Information and invitation given orally by Tribunal while applicant appearing]
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
At the first hearing the Tribunal read to the applicant the email from Pastor Boyd, (the convenor of the Sydney conference the applicant attended), which said:
[51] …We have just been in Vietnam for eight days connecting with churches. At this time amongst Vietnamese ethnic people we did not see any persecution. In fact I would have to say the church in Vietnam is experiencing the greatest freedom that I have seen since I have been involved with the Church in Vietnam.
If [MZYHC] is claiming refugee status on Christian grounds, I doubt it is justified. I apologise for any problems this has created and assure you that we will be more careful in the future in who we invite.
The Tribunal put to the applicant the significance of Pastor Boyd’s email, saying:
[52] The Tribunal suggested to the applicant that if the contents of Pastor Boyd’s letter were accurate, it was potentially damaging to his claims and invited him to comment.
[53] He responded that Pastor Boyd’s perspectives were his own experience and not reflective of individual circumstances where individuals were jailed and beaten for their religious beliefs.
In the circumstances, where the content of the email and its significance have been put to the applicant, it is difficult to see that s.424AA or any rules of procedural fairness have been breached. In any event, the country information was ultimately relied upon (see paras [85] – [87] and [99] of the Tribunal’s decision) for the Tribunal’s findings.
Arrest warrant
The Tribunal twice invited the applicant to comment on its investigation of the authenticity of the arrest warrant in order to ensure that s.424A was fulfilled. The Tribunal recounted the relevant letters:
[78] On 17 April 2009, pursuant to s.424A, the Tribunal sent the applicant a letter inviting comment on the findings of the authentication process. The letter said in part:
…you are invited to comment on or respond to information that the Tribunal considers would, subject to any comments or response you make, be the reason, or part of the reason, for affirming the decision that is under review.
The particulars of the information are:
In support of your application you provided the Tribunal with a document that purported to be an arrest warrant (and the translation of the document into English headed ‘URGENT ORDER OF ARREST’).
The Tribunal arranged for the document to undergo a forensic examination by the Document Examination Unit which provided the following observations:
- This document is prepared on white, A-4 sized, non-watermarked paper which could be considered as a standard type of copy paper which would be universally available.
- This is not an original document. Everything on it is printed by an inkjet printer or copier. This includes all four wet stamps and the two signatures.
- The dotted line in the text at the top left-hand corner exhibits signs of misalignment as if the original version of this document could have been repaired prior to copying occurring.
This information is relevant because subject to your comments it may lead the Tribunal to believe this document to be fraudulent which would mean that it is not acceptable evidence in support of your claim and may lead the Tribunal to find you are not a witness of truth. You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by the Tribunal by 1 May 2009…
…
[82] Having considered the applicant’s response, the Tribunal wrote a further letter to the applicant which stated in part:
…The Tribunal is in receipt of your response to its previous enquiry regarding the authenticity of the ‘Order of Arrest’ document. The Tribunal has considered your submissions regarding your inability to provide the original document. However, despite these submissions, the Tribunal still has concerns regarding the authenticity of this document and the document of which you purport this to be a copy.
Please find attached a copy of the “Forensic Document Examination Report” which leads to the Tribunal’s concerns. This report is relevant because the comments in the report indicate that:
- This document is prepared on white, A-4 sized, non-watermarked paper which could be considered as a standard type of copy paper which would be universally available.
- This is not an original document. Everything on it is printed by an inkjet printer or copier. This includes all four wet stamps and the two signatures.
- The dotted line in the text at the top left-hand corner exhibits signs of misalignment as if the original version of this document could have been “repaired" prior to copying occurring.
Subject to any comments you might make, the report may lead the Tribunal to the view that the copy of the “Order of Arrest” provided by you is not reliable evidence of the existence of a genuine “Order of Arrest”, which in turn may lead the Tribunal to believe that no such arrest warrant was ever issued. If the Tribunal finds that no arrest warrant was ever issued, this may in turn lead the Tribunal to the view that you were not subject to the attention of the Vietnamese authorities in the past. This may lead the Tribunal to find that you do not hold any fear of future harm or attention by the Vietnamese authorities or that such a fear is not well founded.
The applicant claims the second s.424A letter from the Tribunal did not refer to the material that he had provided in response to the first letter, including the evidence of his statutory declaration, the postage receipt or the post office letter. He argues that this shows that the Tribunal ‘ignored’ those documents.
Alternatively, he argues that the second letter shows that the Tribunal must have contemplated finding the additional documents were forged and as such the Tribunal was required to put those matters to the applicant.
The Tribunal noted that in response to the first letter the applicant:
[84]… provided a translated letter from the relevant Vietnamese Post Office advising that the parcel containing the original document had gone missing. The response was contradictory to his statutory declaration in which he claimed it was the “original Vietnamese warrant” and did not provide the Tribunal with satisfaction regarding the authenticity of the submitted document.
The applicant also claims that the Tribunal, in its second letter, put to the applicant the same matters it had already put to him in the first s.424A letter, in effect to protect its decision from review. I do not accept such a pejorative description. The whole purpose of s.424A is to effect a form of procedural fairness. If the Tribunal has any concerns as to whether it has fully complied with s.424A, it is quite proper to send another s.424A letter. I cannot see how a second s.424A letter, in the absence of other significant facts or circumstances, could show improper conduct by the Tribunal, even if the second s.424A letter was clearly not required by the Act. As a general proposition any letters or notices in excess of the strict requirements of s.424A can only serve to provide an applicant with better notice of the key issues that are concerning the decision maker and therefore lead to a fairer hearing.
The Tribunal noted that it found that the applicant’s response to its first enquiry failed to allay its concerns of the document’s authenticity, and sent the second letter as:
[109] Keen to ensure natural justice, the Tribunal again wrote to the applicant expressing its concerns regarding the authenticity of the document and enclosing the forensic report.
The Tribunal did not have to share its reasoning processes with the applicant. A conclusion that the subsequent information did not ally its concerns does not show that a s.424A letter was required with respect to that information. Unfortunately for the applicant he remained unable to provide the original document, and this was clearly a key factor in the circumstances of this case, which the Tribunal were entitled to rely upon.
Ground 3: failure to exercise the duty to review
The applicant submitted that the Tribunal found the applicant was not a credible witness on the basis of Pastor Boyd’s email, and therefore effectively ignored the material provided by the applicant in response to the first enquiry. The applicant submitted that the Tribunal thereby failed to exercise its duty to review.
However, the Tribunal relied upon country information to support its view that the applicant’s claim was implausible.
The Tribunal had asked the applicant to comment on the email. The applicant’s response was that Pastor Boyd’s views were not reflective of individual circumstances involving persecution.
[54] The Tribunal referred to this evidence and to the claims in his application that Vietnamese authorities were torturing and killing people for their religious beliefs. The Tribunal commented that this was not consistent with other available evidence and referred to the International Religious Freedom Report 2007…
It appears that the Tribunal’s second s.424A letter shows that the Tribunal did keep an open mind, offering the applicant a further opportunity to present evidence. Ultimately, the Tribunal had to weigh the evidence. There is nothing to show the Tribunal closed its mind after the Pastor Boyd email.
The applicant claims the similarity between the two s.424A letters concerning the document authenticity issue demonstrates the Tribunal ignored the applicant’s explanation of the word ‘original’ and his evidence about failing to appreciate the use of the word ‘copy document’ in the hearing due to language difficulties. However, the Tribunal squarely considered this issue, saying:
[106] …[the applicant] provided a statutory declaration dated 27 February 2009 in which he said at point 31:
On 14 November 2008, the day after my Australian visa expired, the authorities came to my house with a warrant to arrest me (See original Vietnamese warrant and English translation attached)… [emphasis added]
The applicant said that the word “original” distinguished the Vietnamese copy from the English translation. The Tribunal saw it as representing the Vietnamese document as an original document.
The Tribunal recounted the explanation given by the applicant, saying:
[108]…the applicant provided a translated letter from the relevant Vietnamese Post Office advising that the parcel containing the original document had gone missing. The response was contradictory to his statutory declaration in which he claimed it was the “original Vietnamese warrant” and did not provide the Tribunal with satisfaction regarding the authenticity of the submitted document. [emphasis added]
Whilst there can be no doubt that in the abstract the applicant’s explanation was possible, it was for the Tribunal as decider of the facts (and the decision maker who had seen the applicant give evidence) to decide whether to accept this explanation. It was open to the Tribunal to reject the explanation on the material before it, and in this case the Tribunal clearly considered the explanation given by the applicant before making its decision.
Ultimately, this ground is seeking merits review, rather than judicial review.
Conclusion
In the circumstances, the application must be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 29 September 2010
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