Nguyen Van Anh v Minister for Immigration, Local Government & Ethnic Affairs

[1997] FCA 506

NGUYEN VAN ANH v. THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. VG302 of 1996
FED No. 506/97
Number of pages -
8
Immigration

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

MANSFIELD J

Immigration - review of decision of Refugee Review Tribunal - alleged error of law - whether "real chance" of persecution test properly applied - application dismissed.

Migration Act 1958 s 476(1)(e)

Minister for Immigration and Ethnic Affairs v Mohinder Singh (Full Court, Federal Court of Australia, 24 January 1997, unreported)

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379

Dai Xing Yao v The Minister for Immigration and Ethnic Affairs (Full Court, Federal Court of Australia, 18 September 1996, unreported)

Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705

Hope v The Council of the City of Bathhurst (1980) 144 CLR 1

Tho Xuan Doan v The Minister for Immigration Local Government and Ethnic Affairs and K. Boland (Refugee Review Tribunal) (Olney J, 9 April 1997, unreported)

MELBOURNE, 9 April 1997 (hearing), 11 June 1997 (decision)

#DATE 11:6:1997, ADELAIDE

#ADD 18:8:1997

Counsel for the Applicant: Mr J Belpruno

Solicitors for the Applicant: Koenig and Simons

Counsel for the Respondent: Mr P Booth

Solicitors for the Respondent: Australian Government Solicitor

Order:

MANSFIELD J

Introduction

The applicant was born in Vietnam on 29 February 1952 and is a national of that country.

He entered Australia from Vietnam, on a Vietnamese passport, on 30 July 1992 under a temporary entry permit. He has remained in Australia since that time.

On 15 October 1992, he applied pursuant to the Migration Act 1958 ("the Act") for recognition that he was entitled to refugee status. On 1 April 1993, the delegate of the Minister refused that application. As he was entitled to under the Act, as it then stood, he applied on 5 May 1993 for review of that decision to the Refugee Status Review Committee. When the Migration Reform Act 1992 came into force, his application for review was treated as an application for review made to the Refugee Review Tribunal ("the Tribunal") then constituted under the Act. By operation of s39 of the Migration Reform Act 1992, his application was treated as an application for a protection visa under the Act. On 26 May 1995 the Tribunal refused his application and upheld the decision of the primary decision maker. Again, as he was entitled to do under the Act, the applicant then applied to this Court on 28 June 1995 for review of the decision of the Tribunal. By consent, on 27 September 1995, the decision of the Tribunal was set aside and the matter of his application was remitted to the Tribunal for further consideration.

On 6 May 1996 the Tribunal, differently constituted, again reached a decision to affirm the decision of the primary decision maker. The decision of the Tribunal was therefore to refuse him the grant of a protection visa.

The present application is an application to the Court, again pursuant to Part 8 of the Act, for review of that decision.

Applicable Law

At the time of his application first being made, s22AA of the Act provided that he was entitled to determination that he enjoyed refugee status if the Minister was satisfied that he was a refugee. Refugee was then defined by s4(1) of the Act as a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). The Convention provided in Chapter 1 Article 1 A, so far as is relevant, that a refugee is a person who:

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ...".

The Migration Reform Act 1992, apart from substantially revising the review structures for decisions made under the Act, also restructured substantially various general provisions about visas. It created protection visas as a class of visas: s36(1) of the Act, and provided that a criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia to whom Australia has protection obligations under the Convention: s36(2) of the Act. Section 31(3) of the Act provides that the Migration Regulations may prescribe criteria for a visa or visas of a specified class, including protection visas. Subclass 866.221 of Schedule 2 to the Migration Regulations prescribes the criteria for protections visas, including relevantly that a refugee is a person to whom Australia has protection obligations under the Convention.

Accordingly, although substantially restructured, the criterion which the applicant must satisfy both at the time of his original application and at the present time has effectively remained unchanged.

It is clear that the determination of eligibility for refugee status is made upon facts determined to exist at the time the decision is made, rather than facts which may have existed at the time of the application itself: see Minister for Immigration and Ethnic Affairs v Mohinder Singh (Full Court, Federal Court of Australia, 24 January 1997, unreported); Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379.

The review provisions were also substantially altered subsequent to the original application of the applicant. It is also clear that it is pursuant to the rights and procedures now contained within Part 8 of the Act that the grounds of review are available: Dai Xing Yao v The Minister for Immigration and Ethnic Affairs (Full Court, Federal Court of Australia, 18 September 1996, unreported). The available grounds for review, therefore, are those specified in s476 of the Act. For present purposes, the only ground relied upon by the applicant is that specified in s476(1)(e) which provides:

"(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially- reviewable decision on any one or more of the following grounds:

...

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; ...".

Section 476(2) specifies two grounds upon which an application for review may not be made, namely that a breach of the rules of natural justice occurred in connection with the making of the decision, and secondly that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

Background

The applicant is married with seven children, all of whom still live in Vietnam. His education extended to year 10 of high school, and thereafter his usual occupation has been as a mechanic.

He gave a series of sets of information to the Tribunal in support of his application, starting of course with the initial application, but subsequently including various letters and submissions, and his evidence at the hearing. That information was not all consistent. Although the Tribunal recognised that various factors may have affected his memory, there were other aspects of his claims and evidence about which it had reservations. It expressly concluded that, despite its reservations, "in no significant instance is the Tribunal in a positive state of disbelieve about his claims". It explained its view as follows:

"That is, while some of the Applicant's claims concerning past events appear to the Tribunal to be unlikely or improbable, none can be dismissed as remote. His claims, as clarified at the hearing, are therefore taken into the Tribunal's consideration of the ultimate issue - whether there is a real chance that the Applicant would suffer persecution for a Convention reason if he were to return to Vietnam."

In those circumstances, the primary findings of fact by the Tribunal provided the basis of this application for review. It is necessary to refer to them only in moderate detail.

One matter complained of by the applicant is that the Tribunal erred by assessing each particular fact asserted to determine whether it was proved on the balance of probabilities. By doing that, it was submitted, ultimately the assessment of whether the applicant was exposed to a "real chance" of persecution by reason of his political beliefs would not be properly made, because it would be based only on the probable rather than on the possible conclusions of fact. Reliance was placed upon the observations of Einfeld J in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 440-442, and of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 293. In my view, that passage from the reasons of the Tribunal demonstrates that it explicitly recognised the distinction and did not fall into the error complained of, at least at that point in its reasons.

I am mindful also of the stricture of the Court (Brennan CJ, Toohey, McHugh and Gummow JJ) in Wu (above, at 272) that:

"... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision."

The applicant was a member of the army of the former South Vietnam, of low rank, but including a brief period served on an American naval vessel during which he wore a naval uniform of higher rank. Following the fall of Saigon, he was detained for only a few days. Thereafter, in common with many citizens, he suffered a period of "re-education" but that came to an end in the mid-1970s. There is now no real chance that, by reason of his military service prior to 1975, he would be required to undergo further "re-education".

At the end of 1975 the applicant and his family were required to relocate to a New Economic Zone where he was required to work as a labourer, but he feigned illness, and was able to be relocated to Cai Lay. He participated in discussions there opposing the government policy of no private land ownership, while attending re-education meetings, and so attracted the adverse attention of the authorities. He then left that area without permission and went to Can Tho. However, in 1978 when he returned to Cai Lay, where his wife and family lived, he was arrested and accused of anticommunist activities. He was mistreated, and then sentenced to death. With the assistance of a friend he escaped and went into hiding in Ho Chi Minh City. His family meanwhile had lodged an appeal against that sentence, apparently as it could only be passed by officials at the district or provincial level. The outcome of that appeal is not known by the applicant. He denied having said, as is recorded in the reasons of the primary decision maker, that he believed the matter was concluded.

There were no other significant matters put forward, now the subject of submissions on this application, about events which might give rise to a real chance of persecution for a Convention reason.

The Tribunal noted his subsequent history after his escape. The applicant did not, at any time, use an alias. He was apparently, and understandably, in hiding for some years. From about the mid 1980s, he resided openly in Ho Chi Minh City and remained there until he left Vietnam. From about 1986, he also worked there as a motor mechanic, under contract to the owner; that enterprise was partly owned by the government and the authorities were aware that he was doing that work. In 1990 he obtained household registration, and an identity card. Between 1985 and 1990, he had to report to officials weekly, but he did not have to do so once he obtained household registration. Police also visited him from 1985 from time to time, but made no specific inquiries but had "a chat"; his then wife ran a coffee shop outside their house, and police often had a coffee there. In 1988, as a result of a property dispute, a confrontation occurred and the applicant and others of his family were arrested; the applicant was released shortly afterwards. It was not suggested on this application that those events were directly relevant as evidence towards establishing an ongoing real chance of persecution for a Convention reason. Although he paid a bribe to have his passport processed quickly, he procured his passport for his departure from Vietnam through normal channels. He did not disclose the events of 1978 or thereabouts when making that application. He left Vietnam lawfully in 1992.

The Tribunal appears to have accepted that in 1978 the applicant was arrested and mistreated, and that the death sentence was passed upon him for his political beliefs. It is not disputed that it constituted persecution for a Convention reason. The history of the applicant since 1985, including his dealings with the authorities referred to, led it to the conclusion that both at the time he left Vietnam and at the time of its determination there is no real chance of him suffering persecution by reason of his political beliefs, even in the light of the conviction and the death sentence, even if he were now to return to Vietnam.

There were some other matters considered by the Tribunal.

The applicant's wife, children and mother were imprisoned in about 1979 for attempting to depart Vietnam illegally. The punishments were excessive, and were given, or at least to their full extent, possibly for perceived political dissent. The applicant too, at about that time, attempted to depart Vietnam illegally. Despite the authorities awareness of at least one of those attempts, he was not apprehended nor punished for it. The Vietnamese Penal Code, adopted in 1985, provides punishment for a person who illegally exits from Vietnam or who illegally stays abroad of "a warning, re-education without detention for a period of up to 1 year or imprisonment for [a term of] 3 months to 2 years." The Tribunal accepted that the applicant might have attributed to him political motives for his unsuccessful attempt to leave Vietnam in about 1979, but the Tribunal concluded from the lack of any interest shown in the applicant by the authorities particularly after 1985 that there is no real chance that he would suffer persecution for such a reason if he were now to return to Vietnam.

There were a number of other matters raised for its consideration about which the Tribunal concluded that there was no real chance of persecution for a Convention reason should he return to Vietnam. There is no need to refer to those several matters, as the applicant did not make any complaint about the Tribunal's consideration of them on this application. Those matters include the circumstances in which his wife and children live, a prohibition on operating a street vending business, the capacity to practise his religion, his prospects of getting household registration were he to return to Vietnam, the circumstances of him getting a passport, and the consequences of him having stayed in Australia well beyond the limit normally permitted.

The grounds of review

The critical question for the Court, as identified on this application, was whether the Tribunal erred in law in concluding that there was not a real chance that the applicant may suffer persecution for reasons of his political opinion if he were to return to Vietnam by reason of the conviction and consequent death sentence imposed in 1978. The applicant, understandably, said that he had not wished to excite interest by making enquiries regarding the status of that death sentence. Thus, it is not known whether the appeal against that death sentence was upheld by higher authorities, or whether it has lapsed, or whether it is still in some sense "alive".

The applicant confined his submissions on this application to that one issue. There was no particular passage on the reasons for decision of the Tribunal which the applicant identified as misstating the relevant law, as laid down in Chan (above). Rather, it was submitted, the Tribunal had incorrectly (but not explicitly) interpreted the applicable law or had incorrectly applied the applicable law to the facts as found by it. The substance of his complaint was that the Tribunal did not apply the "real chance" test as laid down in Chan (above) but a stricter or more onerous test. It is of course correct that an error of law in the relevant sense may be discerned on review, without it being apparent in the express words of the reasons.

The Tribunal's reasons in relation to the matter complained of note that "conditions with regard to the death penalty were now different in Vietnam" so the death penalty is rarely enforced. It added, appropriately, that:

"The question remains, of course, whether there is a real chance that the Applicant would now suffer any form of persecution for reason of his political opinion, not limited to execution."

It is implicit in that expression that there was, in the Tribunal's view, no real chance of the death sentence on the applicant now being implemented if he were to return to Vietnam. It does not necessarily follow from the fact that the death penalty is now "rarely enforced" that there is no real chance of it being enforced in relation to the applicant. It is also implicit in that expression that any commutation of the death sentence may involve some other penalty which would amount to persecution within the meaning of the Convention.

The Tribunal then referred to the applicant's personal history as set out above. It concluded:

"In these circumstances, the Tribunal concludes that at the time he left Vietnam the Applicant was not in well-founded fear of persecution for reason of his political opinion. That is, the chance that he would be penalised in connection with what occurred in (Cai Lay) in the mid-1970's ... was by then remote. Further, there is no real chance that he would now suffer persecution for such a reason if he were to return."

It then proceeded to consider the several other matters which, before the Tribunal, were put also as grounds for his eligibility for refugee status. It was not the subject of submissions on this application that the Tribunal's conclusions on those matters gave rise to a ground of review under s476 of the Act.

The Tribunal then concluded:

"The Applicant was persecuted for one or more Convention reasons in the immediate aftermath of the fall of Saigon in April 1975. His letter of 1983 suggests that by that year he had not settled in any one place and that he was still at least in subjective fear of persecution. For the reasons expressed above, however, if not from the time he returned to his father's house in Ho Chi Minh City the mid-1980, then by the time he obtained regular employment and, finally, permanent household registration there, the Applicant's fear was no longer well-founded. This conclusion holds, in the Tribunal's view, even considering matters cumulatively (as the third submission argued was appropriate), for, among other things, the chance that the adverse effects of the property dispute occurred for a Convention reason is remote. . . . The Tribunal finds that at the time he left Vietnam the Applicant was not in well-founded fear of persecution for a Convention reason and there is no real chance that he would suffer persecution for such a reason if he were to return to Vietnam."

It is not the role of this Court to substitute its views on the facts for those reached by the Tribunal. This Court is limited to reviewing decisions of the Tribunal only on one or more of the grounds specified under s476 of the Act. It may, and should, interfere if such a ground is made out under s476(1)(e) even though the error of law does not necessarily appear in the words used by the Tribunal. Here, in my view, the Tribunal has carefully considered and identified the proper legal tests in accordance with the expressions of the High Court in Chan (above). Its reasons express conclusions of fact based upon those legal tests. There is inevitably a line which is hard to draw between a review based on a matter of law, on the one hand, and one involving no more than re-examination of the merits of the case, on the other. That difficulty is discussed at some length in Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705. There will also be circumstances where the facts are fully found, and the question is whether they fall within the provisions of a statutory enactment properly construed; such questions do involve questions of law: see eg Hope v The Council of the City of Bathhurst (1980) 144 CLR 1 per Mason J at 7. I do not think that the conclusion of the Tribunal falls into that latter category of case. As the Court (Brennan CJ, Toohey, McHugh and Gummow JJ) said in Wu (above, at 281):

"The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case. As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event."

Plainly, the assessment of the chance of persecution in the future is one of fact for the Tribunal, so long as it applies the correct law to the facts as found. In Wu, both the majority judgment (at 271-272) and the judgment of Kirby J (at 291-292) emphasises that the reasons of an administrative decision maker should not be scrutinised over-zealously, for the very reason that to do so may turn a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision.

I have nevertheless considered the processes of reasoning of the Tribunal, its expressions of the law, its findings of primary fact, and its conclusions on the ultimate fact in issue. I have not discerned in that consideration any indication that the Tribunal should not be taken to mean what it has said, nor have I identified any surreptitious adoption of a more stringent test than the 'real chance' test in its conclusion that the applicant does not have a well-founded fear of persecution should he return to Vietnam: see Wu (above, at 281). That there are matters which can reasonably be put, as they were in submissions, to urge an alternative conclusion, does not in my view lead to the conclusion of an error of law as contended for.

In reaching that conclusion, I note that it accords with the approach adopted in somewhat similar circumstances by Olney J in Tho Xuan Doan v The Minister for Immigration Local Government and Ethnic Affairs and K. Boland (Refugee Review Tribunal) (9 April 1997, unreported) where his Honour said (at 12):

"The sole issue for determination [in respect of this part of the application] was whether the applicant's fear of persecution is well-founded. After considering the evidence the Tribunal found as a fact that the applicant's fear of persecution was not well-founded. Having made that finding, a correct application of the law to the facts of the case inevitably led to the conclusion reached by the Tribunal, namely that the applicant is not a refugee and is not entitled to the relief sought."

Accordingly, in my view, this application should be dismissed.