SBLC v Minister for Immigration
[2008] FMCA 551
•10 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBLC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 551 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visa – error of law – whether Tribunal considered irrelevant material – bias – whether decision disclosed irrational or illogical reasoning – no error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 474, 476 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs: Ex-parte Durairajasingham (1999) 168 ALR 407 Re Refugee Review Tribunal & Anor: Ex-parte H & Anor (2001) 179 ALR 425 Re Minister for Immigration & Multicultural Affairs: Ex-parte Applicant S20/2002 (2003) 198 ALR 59 Htun v MIMA (2001) 194 ALR 244 |
| Applicant: | SBLC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 300 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 1 April 2008 |
| Date of Last Submission: | 1 April 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 10 September 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant in person |
| Counsel for the first Respondent: | Mr D'Assumpcao |
| Solicitors for the first Respondent: | Australian Government Solicitor |
| Counsel for the second Respondent: | Mr D'Assumpcao |
| Solicitors for the second Respondent: | Australian Government Solicitor |
ORDERS
All applications are dismissed.
The applicant pay the first respondent’s costs fixed in the sum of four thousand five hundred dollars ($4,500.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 300 of 2007
| SBLC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Vietnam. He arrived in Australia, on 11 July 2003, on a short visit tourist visa. Shortly afterwards, he applied to the Department of Immigration & Citizenship “the Department” for a protection visa (Class XA).
The basis of his claim for protection, within Australia, was that he had previously been involved in the collection of intelligence for the South Vietnamese Government, as an undercover police officer, prior to the fall of South Vietnam in April 1975.
As a result of this employment, he claimed to both fear and to have suffered political persecution from the Communist Government of Vietnam, which fear had intensified upon his receipt of a summons, on 20 May 2003, from the Vietnamese Government requiring him to attend for questioning. He had not attended this alleged interrogation, prior to his departure to Australia.
On 9 February 2005, an officer of the Department determined that the applicant was not entitled to a protection visa. As a result, the applicant sought a review of this decision in the Refugee Review Tribunal “the RRT”. On 8 August 2005, the RRT affirmed the decision not to grant the applicant a protection visa.
On 7 September 2005, the applicant sought a judicial review of this decision in the Federal court of Australia at Adelaide. On 3 February 2006, Finn J ordered that writs of certiorari and mandamus issue quashing the decision of the RRT and requiring that it re-hear the applicant’s appeal against the decision to refuse him a protection visa.
On 9 June 2006, a second and differently constituted RRT affirmed the decision not to grant the applicant a protection visa. As a result, on 5 July 2006, the applicant applied to the Federal Magistrates Court at Adelaide for a further judicial review. On 22 December 2006, Lindsay FM allowed the application for review and issued the appropriate constitutional writs quashing the decision made on 9 June 2006.
On 20 September 2007, a third and differently constituted RRT considered the applicant’s review application regarding the decision not to grant him a protection visa. This third RRT affirmed the decision not to grant the applicant such a protection visa.
On 25 October 2007, the applicant filed an application in this court, pursuant to section 476 of the Migration Act (“the Act”). It is his position that the decision of the RRT, made on 20 September 2007 (the third RRT hearing”, is erroneous as it is vitiated by a failure to accord him procedural fairness, particularly by the failure of the RRT to consider properly relevant evidence put before it.
The applicant has provided the following grounds for his application:
“1.The Tribunal’s decision was invalid and constituted a failure to exercise its jurisdiction or in the alternative the exercise of jurisdiction by the Tribunal gave rise to a breach of the rules of procedural fairness in that:
1.1it ignored relevant materials and gave weight to irrelevant materials;
1.2it failed to consider and/or give proper weight to the factual circumstances of the applicant and the circumstances extant in Vietnam at the material time or times;
1.3it relied on its own source of evidence and ignored or failed to give proper weight to relevant evidence from other sources and witnesses;
1.4it wholly failed to take into account or given any or any appropriate weight to the evidence of the applicant as the grounds upon which he asserted a reasonable and appropriate fear of persecution should he return to Vietnam;
1.5the decision was the subject of bias and not in any manner supported by the evidence or any reasonable and proper inference capable of being drawn from such evidence. The decision was bias and irrational not based on findings or inference of facts supported by independent information and/or other factual evidence at the material time.”
As a result, the applicant seeks that the constitutional writs of certiorari, prohibition and mandamus be issued by the court quashing the decision of 20 September 2007 and requiring the decision to be re-determined by the RRT according to proper principles of law.
The decision which the applicant seeks to review is a “privative clause decision”, as defined by section 474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia[1] has held that the provisions of section 474 does not prevent the review of decisions made by the Tribunal, which are affected by jurisdictional error or have been made in bad faith.
[1] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
An Administrative Tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power.[2]
[2] See Craig v South Australia (1995) 184 CLR 163
The hearing before me is not a merits review, rather it is a judicial review. I must be careful not to confuse the two. It is the function of this court to determine whether the decision of the RRT was within its legal powers. It is not the function to examine the merits of the decision.[3] Accordingly this hearing is not a rehearing of all the available evidence. Rather the hearing is directed towards the legality of the RRT’s decision.
[3] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
Because the applicant is seeking a protection visa, he is not to be identified in these proceedings pursuant to the provisions of section 91X of the Migration Act 1958. As a result he has been given the pseudonym of “SBLC”.
The third RRT hearing
The evidence of the applicant, concerning his claims of political persecution in Vietnam, is complex and has developed over the course of the three hearings before the RRT. The applicant provided oral evidence to the third RRT hearing on 18 and 19 April 2007 and 13 July and 3 September 2007.
On 23 May 2007 the RRT forwarded a letter to the applicant giving him the opportunity to comment on what it believed were inconsistencies in his accounts of persecution previously provided by him to both the Department and earlier hearings of the RRT.
The applicant sought time to respond to this request. This request was granted by the RRT. Subsequently, on 2 July 2007, the applicant provided a statutory declaration containing his response to the matters raised in the letter of 23 May 2007.
The applicant said he was born on 14 January 1953 in Saigon, Vietnam. Between 1972 and 30 April 1975, he claimed to work as an undercover informant for the Republic of Vietnam’s police force. His duties included surveillance of Vietcong guerrillas and secret agents.
Following the fall of the Republic of Vietnam, the applicant claimed to be fearful that his previous undercover activities would come to the notice of the new regime. Accordingly, he deposed that he moved his home until he hoped an appropriate opportunity to leave Vietnam would present itself to him.
In February 1979, the applicant claimed that he was arrested whilst attempting to depart illegally from Vietnam with three others. Following his arrest, he was sentenced to eight years imprisonment by a court in Ho Chi Minh City.
The applicant claimed to have been released from prison in 1986. Thereafter he worked as a driver. The applicant claimed that during his period of imprisonment he had come into contact with a number of Buddhist priests, who were opposed to the communist regime in Vietnam. The applicant claimed to have assisted a particular Buddhist leader between 1986 and 1995.
The applicant claimed to have been arrested under decree 31/CP, which empowered Vietnamese local police to arrest and detain persons, in the interest of national security, for periods of up to two years, without a court order. The applicant claimed he was arrested and subsequently imprisoned because of his association with the Buddhist leader, whom he had earlier met in prison.
The applicant claimed that he was held in detention from 22 October 1995 to 18 June 1998. The applicant travelled to Thailand in October 2002. He claimed that police in Vietnam had questioned members of his family regarding his activities prior to 1975. However, the applicant did not seek political asylum in Thailand.
The applicant travelled to Australia on 2 December 2002. He stated he came to Australia to seek protection as a refugee. However, he returned to Vietnam without seeking asylum.
It was the applicant’s case that the Vietnamese authorities became increasingly interested in him, from 2002 onwards, because of his activities prior to 1975. This interest culminated in a summons being issued on 20 May 2003 requiring him to attend for questioning. The applicant left Vietnam on 10 July 2003.
Because the applicant failed to respond to the summons, a warrant was issued for his arrest. The Australian authorities were advised of this warrant, via Interpol, in November of 2003. The Vietnamese authorities stated that the reason a warrant for the arrest of the applicant had been issued was because he was wanted in respect of criminal charges in Vietnam arising from alleged tax evasion.
The applicant claimed that these charges had been fabricated by the Vietnamese authorities and were a subterfuge to ensure that he could be returned to Vietnam, where he would be subjected to repressive treatment because of his pre-1975 activities.
The findings of the RRT
The RRT accepted, with some reservations, that the applicant had been an undercover policeman in the intelligence section of the National Police Force, prior to the fall of the South Vietnamese Government in 1975.
The RRT had serious doubts about the veracity of the applicant’s evidence regarding the circumstances of his arrest in 1979. It did not accept that the applicant was arrested for attempting an illegal departure from Vietnam or that he was falsely charged with criminal offences in order to punish him for his previous activities. Rather the RRT accepted that the applicant was charged with forging official documents.
The RRT did not accept the applicant’s claim that he had been treated more harshly in prison because of his political views. Nor did it accept the applicant’s claim that he had not been permitted a household registration, upon his release from prison.
The RRT noted that the applicant had not mentioned his purported arrest, in 1995, in his initial protection visa application. The RRT was suspicious of the applicant’s account of his arrest and imprisonment at this time. It found that he had fabricated much of this evidence. It concluded that the applicant had been arrested and imprisoned but not for the reasons which he had put forward.
The RRT did not accept the applicant’s claim that the Vietnamese authorities had become increasingly interested in him from 2002 onwards because of his involvement with the previous government of South Vietnam. In this regard, the Tribunal had regard to country information from Vietnam, which caused it to have doubts about the plausibility of the applicant’s claims.
The RRT found that the summons delivered to the applicant’s home, in May of 2003 and the warrant which was subsequently issued for his arrest, related to the authorities interest in him in respect of alleged criminal activities, rather than anything to do with his political affiliations prior to 1975 or afterwards. The RRT rejected the submission that the Vietnamese authorities would fabricate criminal charges and the documents relating to them in order to subject one of its citizens to political persecution.
The RRT reached the view that there was no plausible reason for the Vietnamese authorities to regard the applicant as a dissident or someone who had been previously involved in anti-government activities. It rejected the applicant’s submission that he had been involved with Buddhist monks distributing anti-government material. In addition, the RRT doubted that the current Vietnamese Government had any knowledge of the applicant’s activities prior to 1975.
Overall, the RRT did not find that the applicant was a credible witness, particularly in his explanation of inconsistencies between various interviews he had given to Department officers and to the Tribunal itself. It was the applicant’s evidence that he was a person of limited means because of his employment, as a driver, in Vietnam. Given these circumstances, the Tribunal found that the applicant had been unable to properly explain how he had been able to afford to travel extensively overseas in the past.
It was the RRT’s finding that the applicant was subject to criminal charges in Vietnam and was likely to be arrested upon his return there. However, the Tribunal further found that the charges relating to the applicant arose out of the criminal law in Vietnam and, as such, would apply to all members of the community. Accordingly, it was unable to find that the applicant was likely to be dealt with in a discriminatory manner, which would attract the application of the Refugee’s Convention.
As a result, the RRT found as follows:
“The Tribunal has accepted that the applicant is subject to criminal charges and is wanted for criminal charges and is likely to be arrested when he returns to Vietnam. The Tribunal does not accept that the law with which the applicant is charged, is discriminatory in its intent nor does it have a discriminatory impact on members of a group recognised by the Convention. It is a general fraud offence that would apply to all members of the population. The Tribunal does not accept that there is a real chance that this law of general application will be selectively enforced against the applicant, or that the motivation for the prosecution or punishment of this offence can be found in a Convention ground. The Tribunal does not accept that the applicant’s activities prior to 1975 have been discovered by the authorities, or even if they have, will in any way impact upon the application of this law. The Tribunal does not accept there is a real chance that this generally applicable law will be enforced against the applicant in a discriminatory manner. It accepts that it is a law that is appropriate and adapted to achieving a legitimate object.”[4]
The grounds for judicial review
[4] See Case Book at 519-520
a) The RRT ignored relevant material or gave weight to irrelevant material
The applicant represented himself in these proceedings and apparently prepared his own documents. His oral submission to the court, rendered with the assistance of an interpreter, amounted to a passionate plea to remain in this country.
The applicant was not able to particularise either what salient material he claimed had been ignored by the RRT or what irrelevant material it had taken into account. His submissions were generic and non-specific.
To the contrary, it seems to me that the RRT had regard to all the material before it. This included country information; the oral evidence of the applicant himself; and statutory declarations from other witnesses. The decision of the RRT seems to me to be cogent. I can find no basis to reach a conclusion that it gave weight to any irrelevant material or did not consider the other material put before it.
In particular, I do not think that it can be said that the Tribunal failed to consider or to give proper weight to the factual circumstances, which prevailed in Vietnam at the material time. In its reasons, the Tribunal referred to country information pertaining to Vietnam. It also considered evidence, which was put forward by the applicant himself.
The RRT rejected much of the applicant’s evidence because it did not believe he was credible. Findings as to credibility are matters for the RRT.[5]
[5] See Minister for Immigration & Multicultural Affairs: Ex-parte Durairajasingham (1999) 168 ALR 407 at 423 per McHugh J
b) The RRT relied on its own sources of evidence
By necessary implication, the applicant means by this reference the country information, pertaining to Vietnam, to which the RRT had regard. Pursuant to section 424 of the Act, the RRT “may get any information that it considers relevant”. The information concerned was not specific to the applicant himself but was in the nature of general information about circumstances which prevailed in Vietnam at the relevant times.
Given the generic nature of this information, the RRT was not required to give the applicant particulars of it so that he could pass comment upon it, if he wished to do so [see section 424A(3)]. Accordingly, there does not seem to me to be any basis for the applicant to assert that this action, on the part of the RRT, amounted to an error of law.
c) The RRT failed to give appropriate weight to the applicant’s evidence that he had a well founded fear of persecution in the event of his return to Vietnam
I am satisfied that the RRT was well aware that it was the applicant’s position that, if he was returned to Vietnam, he would be persecuted because of his previously held political affiliations with the former Government of South Vietnam. The RRT did not believe this evidence and formed the view that the applicant would be subject to criminal charges, applicable to all citizens in Vietnam, because of his unlawful activities in that country.
The RRT rejected the applicant’s evidence that he was likely to be regarded as a dissident in Vietnam either because of his activities prior to 1975 or afterwards. The Tribunal reached this view because of the country information available to it and because it did not find the applicant himself to be credible. For the reasons already provided, I accept that these findings were open to the Tribunal and this fact finding exercise is within the sole purview of the RRT. Accordingly, I do not accept that the Tribunal has fallen into an error of law in respect of any of the findings it has made in its decision.
d) Bias and irrationality
The test for bias, in administrative proceedings, is whether a hypothetical fair minded lay person, who was properly informed as to the nature of the proceedings and the matters in issue before the Tribunal concerned, might reasonably believe that that Tribunal might not bring an impartial mind to the issue to be determined in the case concerned.[6]
[6] See Re Refugee Review Tribunal & Anor: Ex-parte H & Anor (2001) 179 ALR 425 at paragraph 27 & 28
Again, the applicant has not particularised any specific incident which he asserts gives rise to any issue of either actual or ostensible bias. In particular, I have not been provided with a transcript of any of the proceedings before the RRT.
In these circumstances, I can find no grounds to support any assertion of bias on the part of the Tribunal concerned. To the contrary, the Tribunal acceded to the applicant’s request for an adjournment of the proceedings. In addition, the reasons of the Tribunal concerned are lengthy. I cannot find from them any suggestion that the applicant has not been treated fairly.
Finally, the appellant submits that the RRT’s decision displays jurisdictional error because it is illogical or irrational. It has been said that to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it.[7]
[7] See Re Minister for Immigration & Multicultural Affairs: Ex-parte Applicant S20/2002 (2003) 198 ALR 59 at 61
For this reason, if it suggested by an applicant that there must be some legal consequence, flowing from allegations of illogicality or irrationality in a Tribunal’s reasoning, it is necessary for that illogicality to be expressed with some particularity and precision be accorded to the error attributed to the decision maker concerned.
In this particular case, the applicant merely asserts illogicality and irrationality on the part of the RRT. He provides no particulars of what he asserts are areas where the Tribunal has reached conclusions against the tide of rational or logical consideration.
In my view, the reasons provided by the Tribunal are both lengthy and coherent. I can find no fault in the rationality or logic of the Tribunal’s reasoning processes.
Conclusions
It is the function of this court to determine whether the decision of the RRT was within its legal powers. It is not the function of the court to determine the merits of that decision.
As Allsop J pointed out in Htun, the decision of the RRT is not to be read over-finely by the court, or with an eye too keenly attuned to the perception of error. Rather a common sense approach is to be taken to what the Tribunal involved has said in the relevant decision.[8] The court must be cautious about possibly or inadvertently entering upon a merits review of the RRT’s decision.
[8] See Htun v MIMA (2001) 194 ALR 244 at 258 referring to Collector of Customs v Pazzolanic (1993) 43 FCR approved in Wu Shan Liang referred to below.
In Minister for Immigration & Ethnic Affairs v Wu Shan Liang[9], the High Court said, in reference to such principles:
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon 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.”
[9] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
It is the function of the administrative tribunal concerned to make findings about the credibility of any witness or piece of evidence involved and not for the court to substitute its own view or finding in this regard.
In Durairajasingham[10] the Tribunal concerned found one part of the particular applicant’s claim to be “utterly implausible”, which McHugh J categorised as:
“… this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.”
[10] Ex parte Durairajasingham (supra) at 423
In my view, the RRT carried outs its functions appropriately. It was required to determine, on the evidence available to it, whether the applicant had a well founded fear of persecution, in the reasonable foreseeable future, for reasons relating to his political opinions. In my view, the applicant has provided no basis to support his contention that the Tribunal has misconstrued its jurisdiction in this regard.
Necessarily the RRT had to consider whether it believed the applicant regarding the claims made by him. This is the RRT’s task alone.
The RRT considered the applicant’s claims of potential persecution in Vietnam and found them not to be credible. This was its entitlement and within its jurisdiction.
For the reasons already provided, I can find no suggestion of bias or illogicality on the part of the Tribunal. Further, I am satisfied that it considered all the evidence before it.
For all these reasons, it must follow that the application has failed and must be dismissed.
The respondent has sought an order for costs and in my view such an order is appropriate. I assess costs in the sum of $4,500.00.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 10 September 2008
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