Nguyen v Minister for Immigration and Multicultural Affairs

[1999] FCA 1514

FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration & Multicultural Affairs [1999] FCA 1514

THI DOI NGUYEN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N586 OF 1999

EMMETT J
27 OCTOBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N586 OF 1999

BETWEEN:	THI DOI NGUYEN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	27 OCTOBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed. 

2.        The applicant pay the respondent's costs of the proceeding. 

3.        Orders 1 and 2 be stayed up to and including 10 December 1999.

4.The applicant file and serve no later than 26 November 1999 any written submissions which she wishes to make as to why the Court should revoke those orders and make any other order.

5.The respondent file and serve no later than 6 December 1999 any submissions he is disposed to make in reply. 

6.        The matter be stood over for mention on 10 December 1999 at 9.30am.

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	N586 OF 1999

BETWEEN:	THI DOI NGUYEN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	27 OCTOBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a national of Vietnam and arrived in Australia on 14 July 1996.  On 19 June 1997, she lodged an application for a protection visa.  On 21 July 1997, a delegate of the Minister for Immigration & Multicultural Affairs (“the Minister”) made a decision refusing to grant a protection visa.  On 8 August 1997, the applicant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 14 May 1999, the Tribunal affirmed the decision not to grant a protection visa.

2. The application presently before me was filed on 17 June 1999 and seeks orders that the Tribunal’s decision of 14 May 1999 be set aside.  The matter came before me for the first time on 23 July 1999.  On that day, I gave directions for the filing of affidavits and written submissions and fixed the matter for hearing today at 9.15am.  I reserved leave to the parties to restore the proceedings for directions on three days’ notice.  My directions concerning written submissions were not complied with by the applicant and no application was made to restore the matter for further directions. 

3. This morning, when the matter was called on for hearing, the applicant sought an adjournment.  The basis for the adjournment was that the applicant wished to seek legal assistance in connection with the proceeding.  A statutory declaration sworn by the applicant on 26 October 1999 was tendered.  In that declaration, the applicant asserted the following matters:

   ·On 5 July 1999, she applied for legal aid. 

   ·On 21 October 1999, she wrote to the Legal Aid Office to request an urgent reply. 

   ·No response has been received to either communication. 

   ·On 22 October 1999, she made an application to the New South Wales Bar Association for legal assistance, but has heard nothing. 

   ·She rang the Immigration Advice and Rights Centre at Surry Hills on a day that is not mentioned and received only a recorded telephone message.

   ·She contacted the Law Society of New South Wales, Community Assistance Department, who had refused her request for legal assistance. 

4. The applicant said from the bar table that she has received some assistance in connection with the preparation of her application to the Court.  If, as appears, she has little understanding of the English language, it is clear that she did receive some assistance in connection with the preparation of that application.  In the proceedings before the Tribunal, the applicant, at some stage, also had assistance from Andrew Nguyen of Chau & Associates, solicitors.  The extent of that assistance is not clear to me at present.

5. The applicant was not, this morning, able to make any submissions in support of her application.  In the circumstances, it appears to me to be appropriate to refuse the application for an adjournment and to give my reasons for reaching the conclusion that I have reached, on the basis of the material before me.  However, I will stay any orders I make for a short period of time, to enable the applicant to obtain legal advice, if she can, and to make further submissions.

6. In its reasons of 14 May 1999, the Tribunal set out, in some detail, the steps taken to afford the applicant a hearing before the Tribunal.  Although the applicant was given the opportunity of a hearing on two occasions, she did not appear at the time finally fixed by the Tribunal.  However, failure to comply with the requirements of the Migration Act 1958 (“the Act”) concerning a hearing is not a ground specified in the application to this Court. 

7. In its reasons, the Tribunal set out the criteria for determining whether the applicant is entitled to a protection visa.  I perceive no error in that part of the reasons.

8. The Tribunal then set out the applicant's claims to having a fear of persecution in Vietnam.  The Tribunal recorded the claims as follows:

   “The applicant claims to be a member of a Buddhist group and that her family belonged to the public service under the former South Vietnam government, which fell to the Communists in April 1975, twenty-four years ago.  The applicant claims to have been involved in Buddhist resistance groups.  She claims her three decades of anti-Communist involvement was detected by the authorities just prior to her departure from Vietnam in 1996 and that she will be punished if she returns. 

   The applicant claims her brother, a member of the South Vietnam supporting family and her estranged husband, remain in Vietnam.  She claims her two children live in Sydney.

   The applicant claimed she obtained her travel documents, including passport and exit permit, legally and without difficulty.  Her passport was stamped by security officials as she left Vietnam. 

   The applicant claims to have fled to Australia from circumstances that appeared clear to her at the time she left.  Her evidence indicates that she knew at the time she left Vietnam that she was in trouble and she could not return under the present regime.  She claims to have two adult children in Australia, who have helped her acclimatise.  One is a student and the other is being sponsored for migration by a resident sponsor.  In these circumstances, it would be reasonable to expect that, given the claimed urgency of her situation, the applicant might have moved to apply for protection in Australia before her three month entry permit expired.  Instead, she applied for three consecutive three month extensions of her Visitor temporary entry permit (TEP) and only applied for protection in Australia as the last one was due to expire.  Her actions in the circumstances attract inferences to the effect that her protection application was not a priority and that it was lodged as an afterthought.”

9. The Tribunal concluded that, without answers to a number of questions that were set out in the reasons, many of them going to the applicant's credibility, it could not accept that the application was genuine.  The Tribunal referred to the applicant's unwillingness to return to Sydney from Melbourne, where she was visiting friends, for the purpose of a hearing.  On the basis of the evidence before it, the Tribunal was not satisfied that the applicant faces a real chance of Convention-related persecution in Vietnam.  It concluded that the applicant is not a refugee.

10. Some of the language of the reasons I found a little intemperate.  For example, the following passage appears:

    “Up to this point the applicant had been lax in advising the Department and the RRT of her movements.  The Tribunal had only learned of her change of address because she gave the name of her new adviser on her ‘request for hearing’ form.  It was nothing less than a liberty on her part to go travelling across Australia without undertaking her duty to keep the appropriate authorities informed.”

11. Secondly, the Tribunal said the following:

    “The applicant's apparent intransigence in insisting that she continue her visit with friends in Melbourne, adds overwhelmingly to the conclusion that she is not a reliable witness in this matter and a very cavalier and abusive applicant overall.  This cavalier nature is itself strongly inconsistent with the ‘committed activist’ profile the applicant has vaguely sketched in her claims.”

12. Nevertheless I do not perceive any error in the reasons.  The grounds of the application to this court are as follows: 

    “1.The decisions were not authorised by the Act in pursuance of which they were purported to be made.

    2.The making of the decisions was an improper exercise of the power conferred by the Act in that it involved the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the case.

    3.In making the decision the Tribunal failed to comply with s 420 of the Act in that the Tribunal failed to act according to substantial justice and the merits of the case.

    4.The decision involved an error of law.

    5.There was no evidence or other material to justify the making of the decision.”

13. The only particulars furnished for the most part appear to be concerned with contentions that the Tribunal made the decision contrary to the weight of the evidence. That, of course, is not a ground available for review under section 476 of the Act. The particulars given in the application are as follows:

    “1.The Tribunal failed to apply properly the test for determining whether the Applicant as an applicant for refugee status has a ‘well-founded fear of persecution’;

    2.The Tribunal did not properly take into account the Applicant’s anti-Communist activities at the time she was a student of the VAN HANH’s Buddhist University in the capital of Saigon;

    3.On the evidence before the Tribunal, it was not open for the Tribunal reasonably to find that the applicant’s political opinion and her involvement with the Buddhist religious group, fell short of persecution within the meaning of the Convention;

    4.The Tribunal erred in finding that the Applicant did not have a well-founded fear of persecution for Convention reasons as evidenced by the surveillance, harassment and interrogations into the life of the Applicant and her family within the period of 1978 when she helped to reorganise the Buddhist Resistance groups until she fled the country in 1996.

    5.The Tribunal erred or acted unreasonably in finding that the Applicant did not have a well-founded fear of persecution for Convention reasons by reason of her work in getting people to support the anti-Communist activities.

    6.The Tribunal erred in finding that the Applicant did not have a well-founded fear of persecution by reason of the Applicant having managed to escape from Vietnam and to have arrived in Australia.

    7.The Tribunal erred in finding that the applicant’s account of her strong support given to the Buddhist Resistance Groups did not relate to her well-founded fear of persecution.

    8.The Tribunal applied the wrong test in assessing “well-founded fear of persecution’ and reached the decisions, which are manifestly unjust.  The applicant is holding a Visa with permission to work whereas the Tribunal erred in finding she may have involved [sic] in some form of illegal employment and put Social preferences ahead of claimed protection needs without giving any concrete evidences to prove its claims.

    9.The Tribunal’s findings, that on the facts as found by the Tribunal, the factors raised by the Applicant did not constitute grounds for finding a well-founded fear of persecution was:

    (a)       manifestly unreasonable;

    (b)       perverse.”

14. I am not, on the material presently before me, satisfied that any of the particulars constitute a ground for interfering with the decision of the Tribunal.  Accordingly, on the material before me, I would dismiss the application with costs. 

15. The orders I propose are these:

    1.        I order that the application be dismissed. 

    2.        I order the applicant to pay the respondent's costs of the proceeding. 

    3.        I stay orders 1 and 2 up to and including 10 December 1999.

    4.I direct the applicant to file and serve no later than 26 November 1999 any written submissions which she wishes to make as to why I should revoke those orders and make any other order.

    5.I direct the respondent to file and serve no later than 6 December 1999 any submissions he is disposed to make in reply. 

16. I will indicate to the parties on 10 December 1999 whether I wish to hear further argument in the light of those submissions or whether I wish to make any other orders.  I will stand the matter over for mention on 10 December 1999 at 9.30am. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             2 November 1999

The applicant appeared in person assisted by an interpreter.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 October 1999
Date of Judgment:	27 October 1999