SZECG v Minister for Immigration
[2004] FMCA 993
•3 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZECG v MINISTER FOR IMMIGRATION | [2004] FMCA 993 |
| MIGRATION – Review of Refugee Review Tribunal decision – visa cancellation – opportunity to respond to information – whether applicant was previously assessed as a refugee – Article 1C of Refugees Convention – fairness of hearing – no error of law – no jurisdictional error – application dismissed. Migration Act 1958 (Cth) NBGM v Minister for Immigration [2004] FCA 1373 |
| Applicant: | SZECG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2411 of 2004 |
| Delivered on: | 3 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 3 December 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | P Braham |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicant pay the Minister’s costs and disbursements of and incidental to the application fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2411 of 2004
| SZECG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 9 July 2004.
The applicant, who is a citizen of Vietnam, arrived in Australia on
31 January 1982. He lodged an application for a protection visa on 7 May 2004. This was refused by the delegate of the Minister on 17 May 2004. On 21 May 2004 the applicant applied for review of the decision by the Tribunal and the hearing was held on 23 June 2004. The decision of the Tribunal was handed down on 9 July 2004.
Background
The applicant was born in Vietnam in 1970 and is currently in detention in Villawood. When he was 11 years old he and his two older sisters, two brothers, aunt and grandmother left Vietnam. The applicant’s father had previously been in the South Vietnamese Army and was later put into a re-education camp. The rest of the family, except the mother, escaped to Thailand where they stayed in a refugee camp. After about eight months they were resettled by UNHCR in Australia under Australia’s Refugee and Humanitarian and Assistance Program, arriving in Australia on 31 January 1982.
After living initially in Wollongong and then moving to Sydney, the grandmother died and the applicant’s sisters and aunt got married leaving the boys alone. In 1991 the applicant was imprisoned for robbery for two years. In 1994 he was the victim of an assault which made him lose his memory in 1995 for about seven weeks. He became addicted to pain killers and then to heroin. He was later imprisoned for further offences, but eventually moved in with his sister and started a methadone program. After an argument with a Centrelink official in 2001 the applicant was charged with assault.
The applicant wanted to go overseas in 2002 so he applied for a re-entry visa. As a result of failing a character test his visa was cancelled and he was placed in detention. He applied for a protection visa on 7 May 2004.
Claims before the Department and the Tribunal
His claims to the Department centred initially on political opinion, race and membership of particular social groups. These claims are set out in the Court Book at page 30:
32. I am afraid that if I return to Vietnam I will suffer persecution by the Government or Government officials.
33. The Government that my family and I sought and was granted protection from is still the Government in power. So I fear that the Government authorities will not only not protect me or assist me but will probably persecute or harass me.
Every time I will be in a situation where I have to explain to a Government official why I have been away from Vietnam I will be in danger of that Government official taking on herself/ himself the opportunity to harass or punish me as a dissident.
34. I will be seen and treated by Government Officials as a dissident because I escaped illegally, sought and was given UNHCR protection and was accepted by Australia as a refugee.
35. In addition because all members of my family have escaped and left Vietnam they may punish me because they cannot punish other members of the family and by for example sending me to a re-education camp.
36. The Government is still punishing anybody involved in anti-government activities or seen as dissidents by the Government.
37. For the abovementioned reasons I fear for my future if I return to Vietnam.
I fear that if I am punished or harassed I will have no way to be assisted by the government since there are no mechanisms, processes or authorities to whom I can request assistance in Vietnam.
In his submissions to the Tribunal the applicant also raised a number of other grounds. One was that if he returned to Vietnam he would suffer significant economic hardship that may threaten his capacity to exist. He was concerned about his future relationship with his young son who was born and lives in Australia. He was concerned that there was evidence the Vietnamese government discriminated and persecuted ethnic Chinese and Buddhists such as himself.
The Tribunal’s decision
The Tribunal undertook a thorough and careful examination of all of the applicant’s claims. It set out his claims and evidence including country information, those relating to political opinion from page 364 of the Court Book, race and ethnicity at page 366, religion at page 369, and particular social groups on page 370.
In its reasons for decision the Tribunal said:
The Applicant provided no evidence to suggest that “religion” is an issue in his case. The same goes for “nationality”.
On political opinion it concluded that:
the Applicant has no political profile of his own and comes from a family that has not developed one either in Vietnam or in Australia, let alone any that would attract negative concerns from the Vietnamese authorities.
The Tribunal was satisfied that the Vietnamese authorities would have no reason to link the applicant with any political organisations or with dissident goals. He would not face persecution in Vietnam for reasons of political opinion, either real or imputed.
The Tribunal said that it did not accept that the applicant faced any real chance of being persecuted for reasons of his part-Chinese ethnicity. It was satisfied that the authorities in Vietnam maintained sufficient law and order to prevent ethnic Chinese being persecuted for reasons of their race.
The Tribunal also considered the applicant’s position in relation to a number of particular social groups - those of deportees, long term outsiders and drug offenders. The Tribunal found no evidence of discrimination against such people and did not accept that the applicant would face a real chance of persecution for reason of membership of these groups.
The Tribunal therefore concluded that it was not satisfied that the applicant faced a real chance of Convention-related persecution in Vietnam. He was not a refugee and any humanitarian claims were matters for the Minister.
Consideration
In a statement attached to his amended application filed on 5 October 2004, the applicant listed four grounds for review of the Tribunal’s decision. Firstly, the applicant argued that the decision was not reasonable and made in good faith. In support of this ground the applicant said at the hearing that the Tribunal had been illogical. It did not understand the situation in Vietnam. The applicant’s concern is really just a dispute with the factual findings of the Tribunal. No legal error is demonstrated and I reject this ground.
Secondly, the applicant argued that the Tribunal did not allow him adequate opportunity to respond to information obtained by it in coming to its decision. It is clear that the applicant took advantage of the Tribunal’s invitation to provide submissions and these are set out at pages 71 to 83 of the Court Book. Furthermore, it is apparent that he or his adviser appended to those submissions a voluminous amount of country information set out at pages 84 to 324 of the Court Book.
He also attended a hearing on 23 June 2004 where he was given an opportunity to respond to questions from the Tribunal and to present further evidence. In a letter from his adviser at pages 354 and 355 of the Court Book following the hearing the adviser stated “I am therefore forwarding the information forwarded to me by [the applicant’s] family”. That information appears to be set out at the Court Book pages 325 to 353. The adviser further stated:
[The applicant] and his family have also requested that I convey their gratitude for providing them with the opportunity to forward the attached information.
This second ground, that the Tribunal did not allow him adequate opportunity to respond to information obtained by it in coming to its decision, must be rejected.
Thirdly, the applicant says that the Tribunal made an error in coming to a view that a new claim under Article 1A(2) of the Refugees Convention dissolves the original claim. In essence, what the applicant is asserting is that because he was assessed as a refugee in 1982, the Tribunal should have looked to the cessation clause of the Refugees Convention pursuant to Article 1C, not Article 1A(2).
As evidence of his claim that he was originally assessed as a refugee, he provided a copy of incoming passenger card for 31 January 1982. This refers to a visa category P302/13 but there is nothing on it to suggest that he had been determined to be a refugee. The Tribunal said:
He and his siblings were selected for resettlement under Australia’s refugee and humanitarian resettlement program. He and his siblings and relatives would not have been subjected at that time to any case-by-case determination of refugee status. In those days, all Vietnamese asylum seekers were regarded en masse as prima facie refugees and offered by UNHCR for resettlement in third countries, in any arguably pragmatic exercise that ended in the late 1980s.
I cannot be satisfied that the applicant was ever assessed as a refugee under the Convention. It is more likely that what the Tribunal has said is correct. Nevertheless, in view of a recent decision of Emmett J in NBGM v Minister for Immigration [2004] FCA 1373 that in substance Article 1C(5) is the mirror image of Article 1A(2), even if the applicant had been assessed as a refugee in 1982, the same process would have still had to have been undertaken by the Tribunal this time.
This third ground is not made out.
Fourthly, the applicant says that the Tribunal obtained and relied on information that was inaccurate. It also ignored or placed no weight on available information regarding the existing realistic threat of political and religious persecution in Vietnam. The applicant did not provide any support for this ground in any substantive way. This ground also should be rejected because it is merely a challenge to the factual findings of the Tribunal.
Fifthly, at the hearing the applicant said he had not been provided with a fair hearing by the Tribunal. He claimed that he and his family were not allowed to respond to questions, they were cut off by the Tribunal when answering, and they were prevented from responding. There is no evidence before the Court of this happening, no transcript of the Tribunal hearing. All I have is the mere assertion of the applicant whose responsibility it is to make out the grounds before this Court.
I note that the applicant attended the Tribunal hearing with an adviser who also presented submissions to the hearing. There is no complaint from her in her letter received by the Tribunal on 8 July 2004 which is reproduced on pages 354 and 355 of the Court Book. On this evidence I cannot be satisfied that the applicant was treated unfairly in the way he alleges.
This fifth ground is also not made out.
Conclusion
The Tribunal dealt comprehensively and carefully with the applicant’s claims. Its findings were reasonably open to it upon the material before it. I am satisfied the Tribunal made no legal error going to jurisdiction in coming to its decision.
The decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition it was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Migration Act 1958 (Cth) and related to the powers conferred on the Tribunal.
In the circumstances I dismiss the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 10 February 2005
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