SZFXS v Minister for Immigration

[2005] FMCA 1004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFXS v MINISTER FOR IMMIGRATION [2005] FMCA 1004

MIGRATION – Review of decision of RRT – where the applicant failed to explain particulars of his claims when requested by the Tribunal – where the Tribunal was not satisfied that the applicant’s claims were credible – whether the Tribunal failed to deal with a particular claims relating to the applicant’s ethnicity, religion and former criminal offences – whether the quality of interpretation was so poor that it breached the fair hearing rule.

Migration Act 1958, ss.425, 424A, 422B
Federal Magistrates Court Rules 2001, Part 21 Rule 21.02(2)(a)

Applicant P119/2002 v Minister for Immigration [2003] FCAFC 230
SZBLY v Minister for Immigration [2004] FMCA 922

Applicant: SZFXS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 691 of 2005

Judgment of: Raphael FM

Hearing date: 14 July 2005

Date of Last Submission: 14 July 2005

Delivered at: Sydney

Delivered on: 14 July 2005

REPRESENTATION

Counsel for the Respondent: Mr A McInerny

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed

2. Applicant to pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 691 of 2005

SZFXS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a national of Vietnam.  He arrived in Australia on

   
   

   24 August 1995 entering on a student visa valid until 14 July 1996. 

   
   

   In November 2000, the applicant was convicted of certain drug related crimes.  He was gaoled from November 2000 until early 2004. 

   
   

   In January 2004, upon his release, he was detained by the Department of Immigration and Multicultural and Indigenous Affairs, prior to him being deported on the grounds of his being a non citizen found guilty of a serious criminal offence. On 11 October 2004, some nine years after he first arrived in Australia, the applicant lodged an application for a protection (Class XA) visa with the Department.  On 19 October 2004, a delegate of the Minister refused to grant the protection visa and on 21 October 2004 the applicant applied for review of that decision by the Refugee Review Tribunal. 

2. The applicant attended a hearing before the Tribunal on 10 November 2004.  The applicant had with him an interpreter and a representative.  The representative was a member of a firm of solicitors well-known and respected in this field of Migration matters.  At the conclusion of the hearing, time was granted to the applicant to address certain factual concerns raised by the Tribunal and to allow him to lodge materials that he considered significant to his case. The Tribunal had concerns about the evidence given by the applicant and sent to the applicant two very detailed letters, the first dated 11 November 2004 and the second dated 25 November 2004.  Those letters are extracted in the court book at CB250-253 and 256-257.  The letters were responded to by the applicant's adviser. 

3. The applicant's grounds for claiming that he had a well-founded fear of persecution for the convention reasons of race, religion, political opinion and membership of a particular social group arise from the fact that he claimed he was a man of Nung ethnicity and a Montagnard from a country dominated by ethnic Vietnamese.  He claimed he was a Buddhist in a country that was secular and socialist and that he was a political dissidence.  The applicant also raised a claim that he might be subject to persecution upon his return to Vietnam for the crimes for which he had already paid a penalty in Australia.  The applicant's claims concerning his political dissidence included a claim that his parents had had an unfavourable political background, having departed the north for South Vietnam during the civil war in that country.

   
   

   All these matters were investigated by the Tribunal in a decision which is commendable for its depth and detail. The Tribunal utilised independent country information which it put to the applicant and his advisers to provide evidence that the applicant had not faced serious harm in his past and would face no serious harm in the reasonably foreseeable future for reasons of his ethnic status or his Buddhist religion.

4. The Tribunal came to the conclusion that none of the examples of persecution provided by the applicant indicated that he faced a real chance of being persecuted for reasons of race or religion.  The Tribunal noted that whenever it requested particular information about these matters in the interview, the applicant tended to move away from those matters to other claims.  The Tribunal concluded that his family circumstances appeared to have improved in that his family had been allowed to profitably farm coffee and had not been the subject of any persecution themselves.

5. The applicant's claims concerning his political dissidence related to an incident which allegedly took place in 1999.  The applicant claimed that he had been in contact with a political dissident in Vietnam named Minh.  Minh had requested the applicant to provide him with writings and tapes of another dissident, Ngan.  The applicant told the Tribunal that Minh had suggested that he place the writings and the tapes inside some stereo equipment and send it to him in Vietnam.  The applicant reported that he had done this but that the stereo equipment had not arrived and that Minh had been arrested.

6. The applicant was concerned that if he returned to Vietnam he, too, would be arrested and there was some suggestion of corroboration of this fact from his family.  The Tribunal investigated this matter in a very thorough manner including conducting a series of internet searches and special requests to the Department of Immigration for information.  The Tribunal was unable to satisfy itself that there was any credibility in this claim at all.  Finally, the Tribunal treated very seriously the claim raised by the applicant that he might be subject to what is colloquially described as double jeopardy if he returned to Vietnam as a known drug convicted criminal.

7. The treatment of drug offenders in Vietnam is notorious for its severity and the Tribunal indicates a concern about the possibility of refouling someone to a country where his life might be in danger for this reason. But after, again, making extensive investigations which are detailed in the court book, the Tribunal was unable to find any real evidence that this might occur.  Indeed, the Tribunal went out of its way to avoid the suggestion that the mere absence of evidence was a reason for finding that the suggested treatment might not be metered out and obtained some positive views through the Department that this would not occur.

8. Having considered all these matters, the Tribunal came to the view that it was not satisfied that the applicant had a well-founded fear of persecution should he return to Vietnam now or in the foreseeable future.  The applicant first filed an application in this court on

   
   

   18 March 2005.  That said:

   “The RRT failed in error, natural justice, practical unfairness, applicant was denied procedural fairness.”

   This application was substituted by another dated 30 May 2005 which the applicant informed me he had not drawn up himself but had someone at Villawood assist him with.  That application is in the following form:

   “That the review Tribunal was in error in its failure to apply the correct test  thus failing to exercise its jurisdiction and failed to properly address the issue raised by the review applicant in that it failed to appreciate that in the light of the applicant's association with a particular social group, being that he is part of the Buddhist Church and  further  his being a form of offender he had a well-founded fear of persecution if he were returned to Vietnam.

   That the Review Tribunal was in error in its failure to apply the correct test thus failing to exercise its jurisdiction, and was procedurally unfair to the review applicant in concluding that the review applicant could have no well founded fear of persecution given evidence associated with the particular social group(s) of the applicant  that they might not be persecuted if they lived their lives discretely.

   The Review Tribunal was in error in its failure to apply the correct test and thus failed to its jurisdiction, in asking itself whether it was satisfied that the applicant would be harmed for the reasons he claimed if he were to be returned to Vietnam.”

9. So far as one can draw any conclusions as to the jurisdictional errors alleged in these three paragraphs, they seem to be that the Tribunal did not deal with the claim concerning the applicant's Buddhist association.  That is clearly wrong.  The Tribunal did deal with that matter and it obtained independent country information concerning the situation of Buddhists in Vietnam and put those matters to the applicant. Insofar as the ground suggests that the Tribunal did not deal with the applicant's claim that he would be persecuted as a former offender this was most certainly dealt with in the manner which I have already set out.  Insofar as the application hints that there are other matters undealt with such as the applicant's ethnicity this was similarly both brought to the attention of the Tribunal and considered by it.

10. When the applicant appeared before me today he told me that he wished for an adjournment of the matter so that he could instruct a lawyer.  He told me that he had a cheque given to him by his uncle in America which the officials at Villawood would not allow him to cash.  I declined to grant the adjournment on the grounds that the applicant had had plenty of time since March 2005 to make appropriate arrangements for legal representation.  I reminded the applicant that he had previously employed a firm of lawyers as his migration advisers and could not see any reason why he might not have contacted them to assist him and asked them to arrange for the cashing of the cheque. 

    
    

    I did not receive a particularly satisfactory response.

11. The applicant told me that his complaint about the Tribunal's actions centred around the fact that the interpretation that he had received at the Tribunal hearing was not adequate.  He said that he had asked the interpreter to repeat and clarify matters that he had said.  I presume that the applicant was able to do this because of his reasonably good understanding of English although I do not suggest for one moment that he was not entitled to an interpreter.  I do note, more importantly, that the applicant was at all times represented and that much of the information which grounded his claims was produced in writing by his advisers.  There is no suggestion in my reading of the decision that the Tribunal's views as to the applicant's credibility arose out of things that were said during the Tribunal hearing as opposed to having been placed into writing by way of statements at an earlier time.  The Tribunal investigated all the allegations made by the applicant and found that some of them were not plausible.

12. In any event, it is clear that for jurisdictional error to occur the quality of the interpreting service must be so poor that it prevents the applicant giving evidence and thus breaching section 425 of the Act; Applicant P119/2002 v Minister for Immigration [2003] FCAFC 230 AT 15-17. In that case the court held that evidence was required of the allegations concerning the failure of interpretation. In this case before me today no evidence has been provided whatsoever. I have nothing but an assertion by the applicant. In SZBLY v Minister for Immigration [2004] FMCA 922 I distinguished Applicant P119/2002 but even in that case I had before me a transcript and I have nothing today.

13. I am satisfied that the findings on credibility which are for the Tribunal "par excellence" were made on a reasonable basis that included evidence that was before it and from which it could come to the conclusions that it did.  I am satisfied that the Tribunal provided the applicant with procedural fairness as required under section 424A and that the provisions of section 422B would apply to these proceedings.  In those circumstances I have been unable to find any grounds upon which I could conclude that the Tribunal fell into jurisdictional error in the manner in which it came to its conclusions in this application. 

14. I dismiss the application by the applicant to this court and I order that he pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: