MZYWA v Minister for Immigration
[2013] FMCA 40
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYWA v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 40 |
| MIGRATION – Review of Refugee Review Tribunal– refusal of a protection visa – whether the Tribunal erred in its consideration of country information. |
| Migration Act 1958 (Cth), s.65 |
| Minister for Immigration v Khawar (2002) 210 CLR 1; (2002) CA 14. S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 203 ALR 112; (2003) 78 ALJR 180. |
| Applicant: | MZYWA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 235 of 2012 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 5 July 2012 |
| Date of Last Submission: | 13 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 31 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Watters |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr L Brown |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That a writ of Certiorari issue quashing the decision of the Second Respondent made on 31 January 2012.
That a writ of Mandamus issue requiring the Second Respondent to hear and determine the application according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 235 of 2012
| MZYWA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of Vietnam. He arrived in Australia on 9 April 1992, when he was 15, coming to Australia with his family.
As a result of a serious criminal offence, the Applicant’s visa was cancelled on 14 September 2011. He applied for a protection visa under s.65 of the Migration Act 1958. This was refused by a Delegate on 5 October 2011.
The Applicant applied to the Refugee Review Tribunal on 18 October 2011 to review the Delegate’s decision. The Tribunal affirmed the decision of the Delegate in a decision of 31 January 2012.
Appeal to Federal Magistrates Court of Australia
The Applicant sought judicial review in an application filed 5 March 2012, which was heard on 5 July 2012.
Following the hearing, a supplementary court-book was filed, together with supplementary submissions. The timetable for filing supplementary submissions was subsequently extended at the request of the parties. Ultimately, on 1 October 2012 the solicitors for the Minister confirmed that they did not request an opportunity to make further oral submissions, and no request for further oral submissions has been forthcoming from the solicitors for the Applicant. I therefore proceeded to determine the matter.
The Applicant relied upon a number of grounds in seeking his protection visa. He expressed concern that he would be targeted by Vietnamese authorities because of his family support for previous governments, there was also concern that he departed Vietnam illegally with his sister and once they arrived in Indonesia were able to obtain a visa to come and rejoin their parents in Australia. The Applicant is also concerned that he would be persecuted or punished again as a result of being returned to Vietnam following a serious criminal conviction. He is also concerned that he would be persecuted on the basis of his actual or imputed political opinions against the Vietnamese government.
Whilst the Applicant came to Australia at 15 years of age, the Tribunal hearing was nonetheless conducted with the assistance of a Vietnamese interpreter. The Tribunal noted that he is fluent in Vietnamese and English (see para.27 of the decision).
The Applicant did return to Vietnam to visit his paternal grandmother in 1991 and was there for nearly 4 months travelling with his mother. He was 19 years old at this time.
The Applicant was unclear about his travels in Vietnam and unclear as to whether his paternal grandmother is still alive, assuming that she would be deceased as she would be around 90 years of age by now. Not surprisingly, given the period of time that the Applicant was in Vietnam with his mother when he was 19, apparently without incident, the Tribunal ultimately concluded:
67. The Tribunal therefore finds that there is no real chance, based on the applicant’s past experiences and the country information, that the applicant will be persecuted, nor or in the reasonably foreseeable future, for reason of his father’s association with the navy or former South Vietnamese government, his “bad family background”, an imputed political opinion or his membership of a particular social group being his family.
68. The Tribunal does not accept the applicant’s fear of being harmed by the Vietnamese authorities because he fled Vietnam without permission and would therefore be seen as a traitor to the country, is well-founded. As the Tribunal put to the applicant in the hearing, the information from the Department of Foreign Affairs and Trade, referred to above, discusses the improvement of relations with Vietnamese who were accepted for resettlement overseas as a priority for the government of Vietnam. It also refers to the establishment of policies aimed at encouraging former refugees to return to Vietnam for the purpose of visiting family, tourism and/or business. In light of this information and the fact the applicant returned to Vietnam in 1991 without experiencing any problems, and in addition his brother’s written evidence provided to the Tribunal by the Applicant’s adviser of their mother’s regular return to Vietnam to visit her sisters without difficulty, the Tribunal does not accept the applicant faces a real chance of persecution because he fled Vietnam illegally and was granted refugee status or because any of his family fled Vietnam illegally, now or in the reasonably foreseeable future.
With respect to the claim that the Applicant may suffer harm as a result of his criminal conviction in Australia, the Tribunal Member said:
69. The applicant also claims he fears returning to Vietnam because of his criminal history in Australia and his membership of a particular social group of returnees with serious criminal convictions. It was submitted as an individual with a serious criminal record he would be at risk of detention, further charge and retrial. The Tribunal acknowledges that the Vietnamese authorities will be aware that the applicant has been convicted of criminal offences in Australia. The applicant is likely to be removed from the country under the MOU between Australia and Vietnam regarding the deportation of convicted criminals. The evidence before the Tribunal does not suggest that people deported from Australia to Vietnam are subject to ill treatment. The Tribunal refers to the information from DFAT, cited above and put to the applicant at hearing, which indicated that it was unlikely that the Vietnamese government would take action against individuals deported to Vietnam with criminal records, including those individuals who had served sentences in Australia for drug-related offences. As the Tribunal noted in the hearing, Vietnam’s Penal Code allows for a citizen who has committed an offence outside of Vietnam to be further “examined for penal liability in Vietnam” on return and the evidence before the Tribunal does not indicate that persons arrested outside of Vietnam are subjected to further penalty or mistreatment on return. The Tribunal acknowledges earlier advice from DFAT, dated 25 February 1999 and cited above, which indicates that information sought by Vietnamese authorities in the case of criminal deportations may be used in surveillance of the individual, however the Tribunal notes that information regarding such individuals is sought in the first instance to ensure there is familial and community support, including accommodation, for the individual on their return. The Tribunal places more weight on recent advice from the Department of Foreign Affairs and Trade, dated 15 September 2011, regarding the return of Vietnamese nationals with criminal convictions which provides that persons convicted overseas of serious crimes who have completed their sentence and returned to Vietnam cannot be subject to further trial in Vietnam for the same crimes. The Post advised that it is not aware of any other problems a returnee who has been convicted and served time for a serious crime overseas, particularly drug offences, may face upon return to Vietnam and that no punitive action may be taken against a person who has been deported for committing a serious criminal offence overseas. In light of the independent evidence, the Tribunal does not accept the applicant faces a real chance of persecution, now or in the reasonably foreseeable future, for reason of his criminal history in Australia if he is returned to Vietnam, including denial of employment, which the Tribunal finds is a purely speculative claim. Nor does the Tribunal accept the applicant’s adviser’s claim that because the applicant may not be retried for the crims he committed in Australia this may lead to authorities targeting him for other reason[s], as the Tribunal also finds this to be simply conjecture.
The Tribunal also rejected the Applicant’s claim that he would be unable to survive in Vietnam as a result of the system of household registration. It was this claim that was the subject of submissions. There are a number of relevant passages:
41. The Tribunal noted that his adviser had discussed possible problems with registering with the Vietnamese authorities and asked the applicant why he may experience this trouble. The applicant stated that because he lives in a rural area it is very different to the city; it will be much harder to get registered in a rural area than the city. When asked what would happen if he was not able to register, the applicant stated that he could not live. The Tribunal asked the applicant what particular problems he may face. He stated the Communists may arrest him. The Tribunal noted that it had read the country information provided by his adviser regarding the particular problems he may face, in particular the information from the IRB which stated that people who committed felonies or who are otherwise considered undesirable by the government would not be eligible for registration. However, the Tribunal put to the applicant that this advice is dated 16 October 2001 and that the law on residence changed in 2007. According to the country information, the new law simplified the administration of household registration, is implemented nationally, is less intrusive than the past system and more transparent. The Tribunal put to the applicant that the information available does not suggest that people with criminal convictions or people who are considered undesirable, are denied registration under this current system. The applicant did not have any comment.
42. The Tribunal noted the applicant’s concern regarding the difficulties he may face registering in a rural area such as the village he was originally from and queried whether he could return to a big city such as Hanoi, where his family connection would not be known. The Tribunal referred to an article from the Vietnamese News Agency dated 3 July 2007 which discussed the fact there were 500,000 migrants in Hanoi who were not holders of household registration, many of whom were eligible to become Hanoi citizens under the Law of Residency 2007 so could he not go back and live somewhere else, such as Hanoi. The applicant stated that he does not know how to live in Hanoi. He has been in Australia for a long time; he does not know what life is in Hanoi.
…
61. The following information regarding household registration in Vietnam was provided in the recent UK Home Office report for Vietnam:
FREEDOM OF MOVEMENT
25.01 The US State Department’s 2010 Country Report on Human Rights Practices (USSD Report 2010), published on 8 April 2011, noted, “The constitution provides for freedom of movement within the country, foreign travel, emigration, and repatriation; however, the government imposed some limits on freedom of movement for certain individuals.” The report stated further:
“The 2007 Law on Residence was not broadly implemented, and migration from rural areas to cities continued unabated. However, moving without permission hampered persons seeking legal residence permits, public education, and health-care benefits. Foreign passport holders must register to stay in private homes, although there were no known cases of local authorities refusing to allow foreign visitors to stay with friends and family. Citizens also were required to register with local police when staying overnight in any location outside of their own homes; the government appeared to enforce these requirements more strictly in some districts of the Central and Northern Highlands.” [2a] (Section 2d)
25.02 As recorded by the website of the US State Department’s Bureau of Consular Affairs, accessed on 1 March 2010, “Every person residing in Vietnam must be listed on a household registry (Ho Khau), maintained by the Public Security Bureau.” [2d] The USSD Report 2010 noted, “Household registration and block warden systems existed for the surveillance of all citizens, although these systems were less intrusive than in the past. Authorities focused particular attention on persons suspected of being involved in unauthorized political or religious activities.” [2a] (Section 1f) On 16 October 2001 the Canadian Immigration and Refugee Board (IRB) recorded that a household registration document (ho khau) is one of the documents required for a Vietnamese citizen to secure a passport within Vietnam (the other documents being a birth certificate, a government-issued ID card and a letter of introduction for a passport, if applicable). [6e]
See also Section 27: Passports
25.03 A report by the Canadian IRB, dated 27 February 2009, noted:
“In 18 February 2009 correspondence, an international human rights lawyer specializing in Southeast Asia stated the following:
The Household Registry [ho khau] is the major form of proof that a person has an established address and is officially associated by blood or marital relationship to the other family members listed on the Registry. In demonstrating identity and residence for the purpose of obtaining any benefits or official documents (i.e. passports or exit documents) the Registry functions as the primary proof without which local officials will more likely than not deny benefits to anyone not part of the Registry.
According to a 2006 Human Rights Watch (HRW) report, household registration documentation in Vietnam is essential for legally obtaining a job, collecting food rations, attending government schools, receiving health care, travelling, voting and contesting administrative abuses... The report also indicates that children who do not have household registration documentation are more likely to be arrested or harassed by the police and may not be eligible to receive basic social services... In an April 2006 Viet Nam News article, the Chairman of Vietnam's National Assembly Committee on External Affairs is quoted as saying that the household registration book is an important document to have in order to obtain a birth certificate, to access education and to vote… Additionally, the Vice Chairman of the National Assembly's Legal Committee stated that household registration is linked to the government's 'preferential policies and [is] essential for people living in disadvantaged, mountainous and remote regions'… A June 2006 Viet Nam News article quotes Deputy Ma Dien Cu from Binh Thuan province [southeast Vietnam] as saying that ‘there's nothing wrong with the [household registration] books,’ but that ‘it's those who manage them who cause trouble for people and infringe on the rights of many citizens’… According to the same article, Deputy Tran Van Nam from Binh Duong province [southern Vietnam] commented on the ‘overuse’ of the household registration books in order to deliver services… Deputy Le Thi Nga from Thanh Hoa province [northern Vietnam] cited a Ministry of Public Security report when stating that there are 380 regulations governing household registration that ‘limit citizen rights’... Further information on these regulations could not be found among the sources consulted by the Research Directorate… According to an October 2008 Viet Nam News article, the Deputy Head of the Hanoi Police Office for Administrative Management and Social Order indicated that the Hanoi police expected to spend 20 days checking household registration books searching for 'suspected people' and 'unusual relationship[s]'... The article reported that those not registered with local police or who haven't informed the police of an address change ‘would be punished’.” [6m]
25.04 On 24 February 2009 the Canadian IRB recorded:
“In 18 February 2009 correspondence, an official at the Consulate General of Canada in Ho Chi Minh City, Vietnam stated that individual's names are removed from the household registration (ho khau) under the following circumstances:
1) ... [B]eing declared disappeared or dead by the Court;
2) Being recruited by the Army, Police and living in barracks;
3) Having immigrated abroad;
4) Being registered at a new residence; in this case, the local authority that processes the new permanent residence of the citizen has the responsibility of informing the delegated authority for issuing the certificate of household move to remove the permanent residence of that individual at the previous residence.
The Official also indicated that
Persons who have been absent from their permanent place of residence for more than 6 months without registering their temporary absence and without plausible reasons shall have their names crossed out from the household registration book. When they return, they must re-apply for registration of their permanent residence as stipulated. With regard to those persons who have registered their permanent residence but who in fact do not live in their permanent residence address without any plausible reasons, or cannot live there, the household management agency must cross out their names in the household registration book...
The Official stated that household registration procedures and paperwork may vary slightly from province to province… The information provided by the Official is based on government Decree/Circular, government websites and local knowledge... When asked about whether individuals are removed from their household registration as a form of punishment, an international human rights lawyer specializing in Southeast Asia stated the following: ‘I know of no situation where a person is removed from their own [household] Registry, but cannot state that it is not done in cases where some doubts exist as to a family relationship’... No further information relating to the removal of individuals from their household registration as a form of punishment could be found among the sources consulted by the Research Directorate.” [6l]
25.05 The Canadian IRB recorded on 16 October 2001 that people who had been removed from the household registry (ho khau) could apply to have their registration restored if they were closely related to the head of the households concerned (sibling, son or daughter, spouse or parent). [6c]
25.06 The same source stated further, “For people who emigrate from Vietnam, the government considers them no longer part of their original household and they would lose their registration.” An individual could apply for restoration of his name to the household registry only after returning to Vietnam, but those considered undesirable by the government would not be eligible. [6c] On 26 February 2009 the Canadian IRB provided details of the process and requirements for reinstatement onto a household registration. [6k]
…
70. The Tribunal has considered whether the applicant will be ineligible for household registration because of his criminal history and thereby have a lack of access to basic services such as employment, food rations and medical care. The Tribunal notes that the applicant’s adviser referred specifically to country information from the IRB dated 16 October 2001 which stated that people who committed felonies or who are otherwise considered undesirable by the government would not be eligible to apply for registration. However, as the Tribunal highlighted in the hearing, the law of residence in Vietnam changed in 2007, resulting in the simplification of the administration of house registration and a much less intrusive and more transparent national system. Given that the IRB advice is out dated and the laws have been superseded, the Tribunal places no weight on this information. As the Tribunal put to the applicant in the hearing, the evidence before the Tribunal does not suggest people with criminal convictions or people considered undesirable are denied registration under the current system. Therefore, the Tribunal does not accept that the applicant would be ineligible for household registration and would subsequently be denied access to basic services. The Tribunal therefore does not accept that there is a real chance the applicant will face serious harm in the form of an inability to subsist through the denial of basic services due to his criminal history.
…
74. The Tribunal acknowledges that the applicant faces a difficult life in Vietnam given he has been out of the country since 1991 when he last visited there with his mother and that he is not aware of the changes that have occurred over that considerable period of time. His immediate family members are all in Australia, he has received little education and has minimal work experience and subsequently there may be little job prospects for him in Vietnam. The Tribunal takes into account the applicant’s claim that he has no relatives or support in Vietnam and nowhere to live and that he will not survive in Vietnam as he has lived in Australia since he was little and life is very different here to Vietnam. The Tribunal also notes the evidence provided by the applicant’s oldest brother, on behalf of the applicant’s large family living in Australia, regarding the challenges that the applicant will face if returned to Vietnam, including his inability to subsist, however the Tribunal does not accept that the difficulties the applicant may experience surviving in Vietnam as a result of his lengthy absence from the country, his minimal family ties, his lack of knowledge of the workings of Vietnamese society and general ability to care for himself, constitutes persecution within the meaning of the Convention in that the challenges the applicant faces are not for reasons of any of the five Convention reasons.
A New Ground of Review
The Applicant argued that there was no evidence for the Tribunal’s finding that the law of residence had changed in the way described by the Tribunal. This was crucial to the decision as the Applicant relied upon a Canadian Immigration Review Board (IRB) report from 2001 to support the proposition that he might be refused registration under the household registration system, and therefore would not be able to live in the country.
The Tribunal appears to have accepted that registration is necessary for access to basic services, but found that the Applicant would not be refused registration, as set out above in para.70 of the Tribunal’s decision.
Counsel for the Applicant pointed to the fact that the UK Border Agency information specifically referred to by the Tribunal referred to evidence of the 2007 Law of Residence of Vietnam not being broadly implemented and an IRB Report that was rejected by the Tribunal as not being of continuing relevance.
Counsel for the Minister argued that the Tribunal could have had regard to the country information referred to by the Applicant’s advisor, which included 4 significant pieces of country information:
a)IRB of Canada report on Vietnam of 2001;
b)IRB of Canada report on Vietnam of 2009;
c)United Kingdom Home Office Border Agency country of origin information report on Vietnam of 2011.
d)Journal article by Hardy, ‘Rules and Resources: Negotiating the Household Registration System in Vietnam under Reform’ (2001) 16(2) Sojourn: Journal of Social Issues in Southeast Asia 187.
Counsel for the Minister conceded that the 2009 IRB report contained nothing to suggest that the 2007 law had not been implemented nationally. However, it does not appear to take the matter in one direction or another.
The Vietnamese Newsagency Article of July 2007 provides evidence of the content of the law on residency. In addition, there was some material that pre-dated 2007 which was favourable to the Applicant; however it is of little assistance given that the law arguably changed in 2007.
The UK Border Agency’s report on Vietnam from 2011 quotes the US State Department’s 2010 country report on Vietnam, that ‘the 2007 law on residence was not broadly implemented.’ Importantly, in the context of this case, it shows that prior to 2007 the law of residence in Vietnam would have been particularly adverse to the Applicant. There is considerable material describing the 2007 law of residence changes, however the only report concerning the implementation of that change in law appears to be the UK Border Agency’s reference to the US State Department’s report that the law on residence was not broadly implemented.
It is important to remember that whilst laws passed in first world countries are usually implemented, particularly laws of this type, the same cannot be said for many other countries in the world, as has been seen in notable High Court authorities such as S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 203 ALR 112; (2003) 78 ALJR 180, where it was found that a law permitting the execution of homosexuals was not enforced and hence posed no risk of persecution, and Minister for Immigration v Khawar (2002) 210 CLR 1; (2002) CA 14, where it was found that the failure to enforce laws prohibiting assaults could be evidence of a failure to provide state protection notwithstanding that the laws existed on the statute books.
As is set out above in the quote of paragraph 70 of the Tribunal’s decision, the Tribunal appears to have accepted that, if the Applicant was not able to register, he would not have access to basic services such as employment, food rations and medical care. The Tribunal also appears to have accepted, at least prior to 2007, this was a real consideration. The Tribunal’s decision turns upon the basis of the change in law of residency in 2007. Whilst the content of the changes to the law of residence are in accord with the Tribunal’s decision, the only evidence as to the implementation of those laws tells against widespread implementation of the 2007 changes.
Crucially, the argument for the Minister is that it was a matter for the Tribunal to determine whether or not they accepted that the 2007 changes had sufficient impact to ameliorate the issues the Applicant may have faced under the law as it was in 2001.
What the Tribunal does not appear to have excluded or even considered is whether or not the formal changes to the household registration laws from 2007 have in fact been implemented on a widespread basis. At least some recognition of this difficulty is implicit in the reasoning at paragraph 42, where the Tribunal recognised that the Applicant may face difficulties registering in a rural area, and contemplated that he may be able to register in Hanoi. Such reasoning is consistent with the UK report highlighting the lack of widespread implementation of the new law. Once the Tribunal reached such a position, it was incumbent upon them to determine the extent to which the law had been implemented in order to properly determine the Applicant’s claim in this regard.
Whilst the Tribunal member sets out, at paragraph 70, the results of the law of residence changes in 2007 the only evidence of the practical effect of that change of law is that the law was not broadly implemented.
As it is implicit from the Tribunal’s decision that the pre-2007 law of residence would present real difficulty for the Applicant. The Tribunal’s decision as to the result of the 2007 changes is central to its reasoning process in rejecting the Applicant’s claims. As a result the Tribunal failed to deal with the Applicant’s case that currently (regardless of the change in the law in 2007) he would not be able to obtain registration and therefore would be unable to survive as the 2007 law was not widely implemented. The Applicant relied upon the evidence of the UK report. This part of the claim should have been dealt with. The most recent material (the 2010 UK report) should have been considered as it was central to the Applicant’s case. Whether, once considered, it would lead to a different outcome is entirely a matter for the Tribunal.
Conclusion
In the circumstances, the application must be allowed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 29 January 2013
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