SZEGG v Minister for Immigration
[2005] FMCA 345
•24 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGG v MINISTER FOR IMMIGRATION | [2005] FMCA 345 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), s.474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373
SWNB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1606
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Minister for Immigration; Ex parte Cohen [2001] HCA 10
| Applicant: | SZEGG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2626 of 2004 |
| Delivered on: | 24 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 23 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Ms L Tucker, Kingsford Legal Centre |
| Counsel for the Respondent: | Mr R Beech-Jones |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2626 of 2004
| SZEGG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
6 May 2004 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEGG”.
The applicant, who was born in Vietnam in 1971, was taken from his homeland in 1985 by an older sibling. He was 14 years old at the time. The applicant claimed he spent almost four years in the UNHCR administered refugee camp in the Philippines. He claimed he and his siblings were selected for re-settlement under the Australian refugee and humanitarian re-settlement program. At that time he and his siblings would not have been subjected to any case by case determination for refugee status. In those days all Vietnamese asylum seekers were regarded en masse as prima facie refugees and were offered re-settlement in other countries by the UNHCR. It was an arguably pragmatic exercise that ended late in the late 1980’s. Under what came to be known as the Comprehensive Plan of Action (CPA) all asylum seekers who arrived in Hong Kong after 16 June 1998 and in other South East Asian countries after 14 March 1989 were required to undergo case by case screening of their refugee claims. Meanwhile, multilateral and bilateral negotiations were expedited to set up an Orderly Migration Program (ODP) for Vietnamese citizens. The ODP was aimed, in part, to discourage unauthorised departures in non seaworthy boats and help bring the asylum seekers from Vietnam in a manageable order. A few years passed before Vietnam’s national and provincial authorities were all working in harmony on processing applicants for orderly departure.
The applicant arrived in Australia on 10 February 1989 “attached” to his older sibling’s travel documents. He was 17 years old at that time. The applicant did not become an Australian citizen as a result of a number of complex circumstances, including alienation, lack of English, lack of parental guidance and an unfortunate lapse into drug related crime. The applicant has three criminal convictions and he served his last sentence in 2001/2002. Those convictions are related to his present application in relation to his protection prospects in Vietnam (Court Book p.91) (“CB”).
The applicant became disentitled to stay in Australia following a set of circumstances that may be best explained by citing paragraphs [5]-[10] of the judgment of his Honour Raphael FM ([2003] FMCA 271, 26 June 2003) who heard an application in relation to the Applicant’s visa status in Australia 2003:
“5. In order to understand the minister’s claim it is best to recite the history of the applicant’s life in Australia as appears in an affidavit of Hervee Dejean filed by the Minister and read, together with a statement made by the applicant in writing and submitted to this court.
6. The applicant is a 32 year old Vietnamese who migrated to Australia on 10 February 1989 when he was granted a BF-K 4672 permit. This allowed him to make multiple entries into Australia until 13 October 1992.
7. On 12 December 1991 the applicant was granted a BF-155, known as a 5 year resident return visa. The applicant last entered Australia on 6 April 1995. For reasons which I am unable to explain, he travelled to Australia on that occasion on a document known as a “Titre de Voyage”. A copy of that document was produced to the court by the applicant. In the affidavit of [Ms] Dejean it is stated that the Titre de Voyage gave no evidence that the applicant held any other Australian visa, although one must doubt that such a document would have been given to a person who did not have a valid right to enter Australia.
8. In any event, on arrival the applicant was granted a sub-class 773 (Border) visa. This visa expired on 7 May 1995. If the applicant had travelled on his old visa, he would have been entitled to return to Australia any time up to 12 December 1996. But, by operation of s.82(2) of the Migration Act 1958 (Cth), his 5 year resident return visa ceased upon issue of the border visa. This is because the border visa is considered to be a substantive visa and under the provisions of s.82(2) a substantive visa held by a non citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non citizen, comes into effect.
9. In any event, by 12 December 1996 at the very latest, the applicant ceased to have any valid visa in relation to his entry into Australia.
10. At some time after 7 May 1995 and before 19 November 2002, the applicant commenced to serve a term of imprisonment as a result of a conviction for the supply of prohibited drugs. It would appear that by 24 June 2002 the Department of Immigration had discovered that the applicant was serving such a prison sentence and was not holding any other visa. It therefore, on 24 June 2002, granted him a bridging visa which expired on his release on 19 November 2002.”
The applicant lodged an application for a protection visa on 29 April 2004. This was refused by the respondent’s delegate on 17 May 2004 and the Tribunal affirmed the decision on 30 July 2004 (see applicant’s submissions pp.1-2).
In addition to the fact that the applicant appeared to have been previously recognised as a refugee prior to his arrival in Australia, he also made the following claims relevant to whether he was a person to whom Australia had protection obligations, namely:
a)Vietnam was still governed by the same regime that had been in power since 1975 and there had been no relevant change in circumstances in Vietnam which affected his previous recognition as a refugee (CB p.114.1);
b)The applicant would be persecuted as a “traitor” for having left Vietnam illegally, or being related to others who had left illegally (CB p.116.6);
c)The applicant may be harmed if it became known that he was a “deportee” (CB p.117.10); and
d)The applicant might be harmed if he was characterised as a “drug offender” (CB p.118.10) and suffer some form of “double jeopardy” (CB p.119.2). (see respondent’s submissions para 6)
The Tribunal’s findings and reasons
The Tribunal considered both the particular matters set out by the applicant which were said to give rise to his well-founded fear of persecution and the issues raised by Article 1C of the Convention relating to the Status of Refugees which provides, inter alia:
“C.This Convention shall cease to apply to any person falling under the terms of Section A if:
(1)He has voluntarily re-availed himself of the protection of the country of his nationality; or;
…
(5)He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
…”
The Tribunal first addressed the application of the cessation clauses in Article 1C (CB pp.113-116) and concluded that both Article 1C(1) and Article 1C(5) were applicable. In relation to 1C(1), it noted that in 1991, 1992 and 1994 the applicant had voluntarily returned to Vietnam and was permitted to re-enter (CB p.115.2). In relation to 1C(5), the Tribunal concluded that, having regard to the change in political circumstances in Vietnam, there was sufficient change in Vietnam to conclude that the circumstances in connection with which the applicant was recognised as a refugee have ceased to exist (CB pp.113-116).
Secondly, the Tribunal also considered whether, in any event, the entirety of the applicant’s conduct was such that he would have a well-founded fear of persecution upon his return to Vietnam for both reasons of his actual or imputed political opinion and his membership of a particular social group, as variously defined (CB pp.116-119). The Tribunal did not accept that any action would be taken against the applicant by the authorities by reason of the fact that he left Vietnam illegally, noting that he had been allowed to re-enter Vietnam and depart again three times (CB p.116.6-116.9). The Tribunal accepted that the applicant might face an interview and a harsh warning by reason of his involvement in drug related crimes in Australia but considered that this would not be Convention related (CB p.117.2). The Tribunal did not accept that there was any likelihood that he would be persecuted for reasons of his being perceived to be a “spy” (CB p.117.2).
In relation to the applicant’s claim of membership of a social group, the Tribunal considered whether he might form part of a social group known as “deportees” (CB pp.117-118). While it accepted there might be some attitudes formed against the applicant because he had been subject to a criminal deportation back into Vietnam, it did not accept that the authorities would persecute him for that reason or that the elements of society at large would do so (CB p.118.3). Whilst it accepted that he might be the subject of a steeper than usual bribe to obtain his household registration because of a perception that because he was a returnee he might possess more wealth, it did not accept that returnees would form a particular social group for the purposes of the Convention in that they would not possess any characteristic that would set them apart from society or be so perceived to be set apart (CB p.118.6). The Tribunal considered various other permutations of the description of a particular social group but rejected them (CB p.118.8). It concluded that there was no likelihood of him being subjected to any “double jeopardy” by reason of his drug convictions (CB p.119.4).
Thirdly, the Tribunal considered the circumstances as found by it meant that Australia did not have protection obligations to the applicant because he had not taken all possible steps to avail himself of a right to enter and reside, whether temporarily or permanently in a country apart from Australia (CB pp.119-120).
Application for review of the Tribunal’s decision
On 24 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 10 September 2004 the applicant appeared before a Registrar of this Court and by consent, orders were made requiring the applicant to file and serve an amended application giving full particulars of each ground of review relied upon with any supporting affidavit material by 23 November 2004. On
15 November 2004 an amended application was filed which contained the following grounds:
“1.The Tribunal failed to consider relevant considerations in its determination that Article 1C(5) excluded the applicant’s claim.
Particulars
The applicant has had refugee status in Australia since 1989. The Tribunal’s determination that circumstances in Vietnam had changed so fundamentally that Article 1C of the Refugee Convention applied, relied on evidence of economic reform. The Tribunal failed to take into account the evidence that there had not been a fundamental improvement in political and civil rights.
2.The Tribunal misdirected itself as to the application of social group membership under the Convention and misunderstood the whole of the applicant’s claim on this basis.
Particulars
The applicant claimed membership of the social group of convicted drug offender returned to Vietnam. The Tribunal found that the applicant’s actions could not result in membership of a social group. Such determination overtly narrows the application of ‘social group’.
The Tribunal considered that the claim only referred to “double jeopardy”, that is the risk of the applicant being punished again for crimes committed in Australia for which he had already been punished. The Tribunal thus failed to consider that the applicant may be falsely implicated in local crimes simply because he is a criminal record.
While the Tribunal did refer to the applicant’s claim concerning ‘state initiatives’ this appears to only have been in the context of its double jeopardy findings.
3.The Tribunal made a finding contrary to the evidence before it that may have affected the outcome of its decision.
Particulars
The Tribunal dismissed the ‘state initiative’ claim as unsupported yet an Amnesty report cited by the applicant’s adviser referred to “political pressure to convict and impose the death penalty”.
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
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 the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
Ms L Tucker of Counsel, appearing for the applicant, filed written submissions prior to the hearing.
Ground 1
a)In respect of the first ground, that the Tribunal failed to consider relevant considerations in its determination that Article 1C(5) excluded the applicant’s claim. The applicant had had refugee status in Australia since 1989. The Tribunal’s determination that circumstances in Vietnam had changed so fundamentally that Article 1C(5) of the Refugees Convention applied, relied on evidence of economic reform. The Tribunal failed to take into account the evidence that there has not been a fundamental improvement in political and civil rights.
b)In its findings, the Tribunal referred to tests as enunciated in the case law and by the UNHCR in determining whether the “ceased circumstances” clause could be evoked (CB pp.114-115). The Tribunal relevantly quoted the UNHCR Guidelines: “significant and profound changes should be given time to consolidate before any decision on cessation is made”.
c)While noting the guidance, the Tribunal then referred to evidence of change, comprising the ability of the applicant to return to Vietnam on visits in 1991, 1992 and 1994 and the independent evidence concerning greater freedom of movement. The Tribunal also referred to changes it characterised as “largely an economic reform” (CB p.115). The Tribunal continued:
“As the US Department of State reports show, political rights such as the right to change the government or merely express opposition to it have not improved, but that fact alone does not make a person residing outside of Vietnam a refugee.”
d)On the following page, the Tribunal referred to Vietnam’s “improved diplomatic relations”, then noted:
“Again, this has had little significant effect on the domestic political rights of its citizens.” (CB p.116.2)
e)The Tribunal thus identified the process which it should undertake in determining whether a cessation clause should apply, then misapplied the process by identifying economic reforms and freedom of movement as an indication of “significant and profound changes”. It was not for the Tribunal to determine whether the circumstances extant in Vietnam were such that this may make the applicant a refugee; it was to determine whether there had been sufficient change in place to demonstrate that the applicant was no longer a refugee.
f)The applicant submitted that the absence of political reform was clearly relevant to an examination of whether there have been profound changes in a country. Evidence to which the Tribunal referred included the reports of Amnesty International concerning Vietnam (CB p.107). One of these reports noted that domestic human rights monitoring was not permitted in Vietnam and access was denied to independent international human rights monitors, including Amnesty (CB p.234). The Tribunal’s failure to take into account relevant considerations concerning human rights issues in Vietnam was such that its decision was manifestly unreasonable: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41.
Ground 2
a)In respect of ground 2, where the applicant claimed the Tribunal misunderstood the nature of his claims, the applicant claimed membership of the social group of convicted drug offenders returned to Vietnam. Submissions on behalf of the applicant (CB p.71), as noted by the Tribunal (CB pp.106, 107, 119), referred to the situation in Vietnam concerning tough penalties for drug offenders in Vietnam, including death by firing squad, and that the applicant may be at greater risk of prosecution given his previous convictions. The claim thus referred to the risk of being targeted in prosecutions unrelated to any crimes committed in Australia.
b)The Tribunal characterised the claim as referring to “double jeopardy”, that is, centring on the risk of the applicant being punished by the Vietnamese for crimes committed in Australia for which he had already been punished (CB pp.106, 108, 110, 119). The Tribunal failed to consider that the applicant may be falsely implicated in local crimes simply because he has a criminal record and may present as more of a target for enforcement officials.
c)While the Tribunal did refer to independent evidence cited by the applicant which reported increasing numbers of judicial executions, many in public, and to the applicant’s claim concerning “state initiatives”, this appeared to have been either dismissed as unsupported or placed in the context of its double jeopardy findings (CB p.107). A finding which misunderstands the nature of a claim may result in a constructive failure to exercise jurisdiction as the Tribunal thus fails to decide the question before it: Dranichnikov.
Ground 3
a)In respect of ground 3, where the applicant claimed the Tribunal made a finding contrary to the evidence before it that may have affected the outcome of its decision, the Tribunal dismissed the submission that the applicant would be an easy target for drug enforcement officials as “an unsupported assertion” (CB pp.107,119). It was submitted, however, that the applicant had cited an Amnesty International report which referred to “political pressure to convict and impose the death penalty” (CB p.73.1).
b)It was conceded that it was for the Tribunal to determine what weight it accords the evidence before it. The Tribunal’s finding was, however, contrary to the evidence submitted. The Tribunal erred in law by making findings in the absence of, or contrary to, the evidence: Australian Broadcasting Tribunal v Bond (“ABT v Bond”) at 355-356 and 359-360; SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (“SFGB”) at [19].
Ms Tucker, for the applicant, made the following further remarks:
a)The Tribunal appeared to have misunderstood the applicant’s situation in relation to his visa status when it stated:
“The Department’s actions in terminating the applicant’s resident visa appear to reflect the position that the applicant has committed a serious crime, or serious crimes, in Australia.” (CB p.111.8)
b)This is contrary to the findings of Raphael FM who held that, in relation to the applicant’s visa status, there had been no determination by the Department, thus precluding the applicant from judicial review. His Honour stated:
“… the fact is that [the applicant] did not apply for a new visa and his then current visa was allowed to expire … There is no valid application to this court. There is no decision to review.”
c)While it is accepted that this does not appear to have formed an explicit part of the Tribunal’s findings, it raises concerns as to the extent to which the Tribunal understood the applicant’s claim.
Respondent’s submissions
Mr Beech-Jones of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
Ground 1
a)In respect of the first ground, the applicant asserted the Tribunal failed to consider relevant considerations in its determination under Article 1C(5) of the Convention and, in particular, whether the “circumstances in Vietnam had changed so fundamentally”, whether evidence of economic reform was relevant for that purpose and whether the Tribunal otherwise failed to take into account evidence that there had not been a fundamental improvement in political and civil rights. It was submitted that there were three reasons why this ground must fail:
i)Firstly, it was not incumbent upon the Tribunal to consider there was an existing well-founded fear of persecution and its treatment of Article 1C(5) was a separate and alternative basis for its decision: see NBGM v Minister for Immigration & Multicultural & Indigenous Affairs (“NBGM”) per Emmett J at [63]; SWNB v Minister for Immigration & Multicultural & Indigenous Affairs (“SWNB”) per Selway J at [12].
ii)Secondly, it was open to the Tribunal, if it chose, to consider the position that the Convention did apply to the applicant at the time of his arrival in Australia, and ask whether the circumstances in connection with his recognition have ceased to exist. However, it was not necessary for the Tribunal to determine that there had been a “sustainable, effective and durable” change, merely that there had been a change since the applicant left such that he no longer had a well-founded fear of persecution should he return. In this case, the Tribunal considered in detail the material concerning the change in circumstances in Vietnam (CB pp.97-113, 114-115) including the not insignificant matter of the fact of the applicant’s own return to Vietnam in 1991, 1992 and 1994 (CB p.115.3). This was more than a sufficient basis for the Tribunal to form the view that it did and a complaint about a particular piece of evidence that was not taken into account in such context is a complaint about a finding of fact.
iii)Thirdly, in relation to the cessation, the Tribunal also relied on Article 1C(1), in that the applicant had voluntarily re-availed himself of the protection of his country of nationality (CB p.116.2) and no challenge was made to that finding.
Ground 2
a)The second ground was that the Tribunal misdirected itself in considering the applicant’s claim that he was a member of a social group and in particular a social group consisting of “convicted drug offenders returned to Vietnam”. The Tribunal did not misunderstand nor fail to address this issue. The applicant submitted that he was at risk of “being targeted in prosecutions unrelated to any crimes committed in Australia”.
b)It was also submitted by the applicant that the Tribunal did not consider the possibility that he may be falsely implicated in local crimes because of his criminal record, but instead referred to the potential imposition of some form of punishment by way of “double jeopardy”. The respondent submitted that no claims of this kind were made to the Tribunal and it may be that this was being hinted at in the applicant’s submission of 15 July 2004 where it stated:
“Given such weaknesses, the authorities are eager to carry out state initiatives whenever a chance presents itself, it is clear that [the applicant] would be an easy target for the authorities.” (CB p.71.3)
There was nothing else in the submission that hinted at the possibility the applicant may be falsely implicated in crimes he did not commit (CB pp.70-79). Instead, it addressed the claim that other action would be taken against him because he had committed crimes in Australia (CB p.73) and the Tribunal addressed this claim (CB p.119).
c)Further, there was no evidence whatsoever to support a contention that the Vietnamese authorities falsely implicate those convicted of drug offences overseas in local drug offences. In the absence of any such claim being expressly made and any material to support it, the Tribunal was not under any obligation to consider the issue.
Ground 3
a)The third ground of review asserted the Tribunal made a finding contrary to the evidence before it. It was the applicant’s submission that the Tribunal dismissed the “State initiative” claim as unsupported. However, an Amnesty report cited by the applicant referred to “political pressure to convict and impose the death penalty”. Counsel contended that this argument was a confusion of two matters:
i)Firstly, it was an attempt to construe the reference to “State initiative” in the submission (CB p.71.2) into an assertion that the applicant might be falsely implicated in crimes in Vietnam and there was no basis for that construction. A “State initiative” of that kind was not referred to in the submission (CB pp.70-79).
ii)Secondly, the report of Amnesty was referring to the imposition of the death penalty for offences committed in Vietnam. The applicant has not been convicted of a drug offence committed in Vietnam and there was nothing in the materials to support any suggestion that by virtue of his conviction of a drug offence in Australia that he may be subject to the death penalty in Vietnam.
b)In any event, a complaint that the Tribunal made a finding contrary to the evidence was not a complaint of jurisdictional error. Nothing in ABT v Bond or SFGB suggests that it is. Instead, what must be shown is that there was no evidence to support the conclusion or that the material on which the Tribunal relied was so inadequate that the only inference was that it applied the wrong test or was not satisfied in respect of the correct test: SFGB; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 at 62, 67, 76, 90-91. A rejection of factual contention by the Tribunal cannot be characterised as either.
Reasons
In respect of ground 1, the issue to be resolved was whether the cessation clauses under Article 1C under the Convention relating to the Status of Refugees, particularly 1C(5) and 1C(1) applied in this matter. Both parties referred me to the recent Federal decision of NBGM a decision of Emmett J which looked at the way in which a Tribunal should address this issue as to whether or not the issues surrounding that person’s previous declared status as a refugee, or whether those issues have ceased to exist.
In NBGM Emmett J at [63] stated:
“On one view, Article 1C(5) had no part to play in that question. The only question was whether, at the time of the Tribunal’s decision, the applicant was a person who, owing to a well-founded fear of being persecuted for Convention Reasons, was unable, or owing to such fear, unwilling to avail himself of the protection of Afghanistan. Even if, as at December 1999 the applicant had been a person to whom the term ‘refugee’ within the meaning of the Refugee Convention applied, the question before the Tribunal was whether that term applied to the applicant as at April 2004. The Tribunal concluded that the applicant was not, as at that time, a person to whom the term refugee, as defined in the Refugees Convention, applied. There was no error in its reasoning in doing so.”
In SWNB Selway J at [12] stated:
“These issues were considered by Emmett J in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373. His Honour's analysis seems to me to be plainly right and I adopt and apply it. His Honour reached the following conclusions:
1. Where the Tribunal is considering the grant of a fresh visa, including a permanent protection visa, the Tribunal is required to determine at the time of its decision whether the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Article 1C(5) does not necessarily have any role in that decision. I note that Dowsett J reached a similar conclusion in the case of QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1448.
2. In making that decision, the tribunal may start with a position that the Refugees Convention applied to the applicant as at the date he was granted a temporary protection visa and then ascertain whether the circumstances in connection with which the applicant had been recognised as a refugee had ceased to exist.
3. Even if article 1C(5) of the Refugee Convention was applicable, it did not require that there be a ‘sustainable, effective and durable’ change; merely that there had been a change such that the applicant no longer had a well-founded fear of persecution if he was returned to his country of origin.
4. Section 36(3) of the Act should be interpreted in its usual and ordinary meaning. So interpreted, it adds little to the terms of section 36(2) of the Act where the issue involves the return of the applicant to his country of nationality.”
Counsel for the applicant has taken the Court to a number of detailed references within the country information to establish an argument that circumstances within Vietnam have not changed significantly with respect to human rights despite the introduction of its policy of “Doi Moi”, both politically and economically, and that Vietnam has become more active in regional participation with other Asian regional countries. This approach unfortunately leaves the Court with a subjective evaluation as to the degree of change and whether that exceeds some theoretical threshold. However, the authorities do not require the Tribunal to adopt that method. Rather, the Tribunal is required to assess the criteria for granting a protection visa at the time of the determination without relying on the provisions of Article 1C(5) and determine whether the circumstances have changed sufficiently since the original protection visa was granted to pass the threshold.
The facts in this case indicate there has been a change evidenced by the fact that the applicant was able to return to Vietnam on three occasions and subsequently leave without intervention of the authorities. Clearly, the applicant would not have been able to enter and exit Vietnam within the four year period following his initial departure. Further, the applicant has been able to avail himself of this opportunity to enter and exit voluntarily. Although Counsel for the applicant has submitted a logical and convincing argument in support of this ground, I believe the respondent’s argument correctly identifies the authorities which I am bound to follow and have set them out precisely in their submissions.
The second ground concerned the applicant’s membership of a particular social group, namely convicted drug offenders returning to Vietnam and the consequences of his previous convictions. The relevant passage from the Tribunal’s findings stated:
“The Tribunal has considered the Applicant’s arguments about ‘double jeopardy’. In particular, the Tribunal considered the material in the 15 July 2004 submission, relating to tough penalties and weaknesses in the investigative system, such as resource difficulties and poor training, inhibiting the effective function of drug enforcement initiatives. As noted, the Tribunal finds that the assertion about the government resorting to ‘state initiatives’ to make up for investigation and enforcement weaknesses is unsupported. The suggestion to the effect that the Applicant would be an easy target for such ‘state initiatives’ is also entirely unsupported.” (CB p.119)
Counsel for the applicant acknowledged that the Tribunal referred to independent evidence provided by the applicant concerning the increase in judicial executions and claimed that the Tribunal dismissed these submissions and took an alternative approach. The applicant relied on the authority of Dranichnikov, being the authority that a finding which misunderstood the nature of a claim may result in a constructive failure to exercise jurisdiction as the Tribunal thus failed to decide the question before it.
Whilst there was evidence of increasing numbers of judicial executions within Vietnam, there was no evidence to support the contention that the Vietnamese authorities were re-arresting, re-trying or re-convicting individuals returning to that country who had committed offences overseas. The Tribunal clearly stated (CB p.119) that there was no evidence which would suggest that the applicant would face persecution in Vietnam for any offence that he may have committed overseas. There were no particulars in respect of this aspect in the pleaded grounds, written submissions or oral submissions during the hearing.
When this issue was discussed at the Tribunal hearing on 8 July 2004, the applicant and his adviser, Mr Parastou Hatami (“the applicant’s adviser”) were provided with an additional week following the hearing in which to make further submissions in support of this contention. During this time the Tribunal also reviewed the issue to endeavour to locate any material of this nature. The adviser for the applicant filed their submission on 15 July 2004 which was reproduced in the Court Book at pages 70-79. That submission addressed the Vietnamese authorities’ intolerance to drug offences in the form of a zero tolerance approach. However neither that report nor the research of the Tribunal uncovered any material to suggest that people returning to Vietnam who had been convicted of drug related offences in other countries were being re-arrested in respect of those offences on their return to Vietnam.
Ground 3 raised the claim that the Tribunal made a finding contrary to the evidence before it in that it dismissed the submission that the applicant would be an easy target for drug enforcement officers as an unsupported assertion (CB pp.107, 119). The applicant’s submission was that this was contrary to the information contained with the Amnesty International Reports of 2000, 2003 and 2004 which addressed the death penalty for drug related offences within Vietnam.
The applicant relied on the authority in SFGB per Mansfield, Selway and Bennett JJ at [19]
“… If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–357.”
I accept the submission by the respondent in respect to the issue of “State initiatives” that the conclusion the applicant is attempting to draw is not correct. The submission filed on 15 July 2004 by the applicant’s adviser (CB pp.69-79) contained a substantial amount of information relating to convicted drug offenders in Vietnam and Vietnamese returnees. However, those submissions did not contain a clear statement that it was a “State initiative” that persons convicted of drug offences while outside of Vietnam would be re-arrested, re-tried and executed on their return to Vietnam. There were details of imprisonment, house detention and interrogation and other difficulties that the returnee may face (CB pp.75-79), but it did not indicate that a returnee would be faced with the death penalty.
The other issue was that the applicant had not been found guilty of any drug related offence within Vietnam which would result in the imposition of the death penalty. The applicant’s adviser’s submissions did not contain any statement that Vietnamese returnees who had been found guilty of drug related offences in other parts of the world face the imposition of the death penalty on their return. The argument that the Tribunal had made a finding that the applicant would not be subject to the imposition of the death penalty on his return to Vietnam, contrary to the information the Tribunal received from the applicant’s agent or from its own research, was not sustainable. The Tribunal’s findings were not contrary to the information before it.
The respondent made the additional submission that the Tribunal’s making of a finding contrary to the evidence was not a complaint of jurisdictional error. A factual error made in the course of making a determination or decision was unlikely to be a jurisdictional error unless the particular fact was a jurisdictional fact: Minister for Immigration; Ex parte Cohen per McHugh J at [36]. I accept the submissions made by the respondent in respect of ground 3.
Ms Tucker’s comments reproduced from her written submissions at paragraph 17 above are noted. However, I do not believe they add any weight to the substantive submissions contained in the written submissions and supplemented orally during the hearing.
Conclusion
For the reasons set out above, I am satisfied that the Tribunal has not made a jurisdictional error and the application filed in this Court on
24 August 2005 should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 24 March 2005
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