Thuat v Minister for Immigration and Multicultural Affairs

[1999] FCA 1600

FEDERAL COURT OF AUSTRALIA

Thuat v Minister for Immigration & Multicultural Affairs [1999] FCA 1600

NGO QUANG THUAT v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 732 OF 1999

EINFELD J
19 NOVEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 732 OF 1999

BETWEEN:	NGO QUANG THUAT Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EINFELD J
DATE:	19 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the Court has been given the benefit of detailed written submissions by the applicant and by the respondent.  When ordering the submissions, the Court invited the parties to say whether they wished to have the opportunity of putting oral submissions, and if so why.  The applicant did not wish to take up the invitation.  The respondent sought the opportunity of making oral submissions, but did not say to what issues or on what matters oral submissions were sought or may be necessary other than that the Court may be assisted. Having read the material, I decided not to convene the Court for oral submissions but to deliver the judgment, as I said I would when the matter was listed for today, on the basis of the written submissions.

2. In brief the facts of the matter are that the applicant was a serving officer of the armed forces of the former republic of South Vietnam  between 1971 and 1975 when Saigon fell to the forces of the North.  After 13 months in a re-education centre, and up to the time of his arrival in Australia in 1994 some five years go, the applicant claims to have suffered, in Vietnam, significant limitations upon his ability to work and, more importantly for the purpose of this case, that he was unable to obtain a form of household registration that would allow him to reside with his wife and child. 

3. According to the Tribunal, this form of household registration forms part of a nationwide system of surveillance and control which is used by the Vietnamese government to monitor citizens.  The only issue raised by the applicant's case, and contested by the respondent and dealt with by the Tribunal, was whether the impact of the inability to obtain this household registration is still operative in the current circumstances in Vietnam.  The case before the Tribunal was conducted on the basis that in effect the situation that applies in Vietnam now in this regard is the same as it was when the applicant was last there five years ago. 

4. There was in substance no evidence that the situation was the same now as then, “now” meaning at the time when the Tribunal was considering the matter, but there was a degree of compelling evidence that the situation had changed for the better.  This of course raises an issue of fact, and issues of fact are for the Tribunal and not for the Court.  It will however give an indication of my response to the material if I say that in my view the decision made by the Tribunal was well open to it and cannot now be challenged either in law or in fact.

5. The Tribunal accepted the applicant as a credible witness and accepted his account of his past experiences in Vietnam.  These included his apprehension and detention for two months and 12 months respectively, following two attempts to escape from Vietnam in 1980 and 1981.   During the last of the escape attempts, his brother who was with him was shot by the police.  After his release from his second detention, the applicant assumed his deceased brother's identity as a means of avoiding a number of the restrictions placed on him as a supporter of the former South Vietnamese administration.

6. The case was really argued on one single point, that is, whether there was a risk, within the meaning of the concepts discussed in Chan v Minister for Immigration and Ethnic Affairs [1989] 169 CLR 379, that he would, if returned to Vietnam, suffer the inability, prevention or serious hindrance of obtaining the household registration such as to prevent him from living with his wife and son. The submission was that so long as there was a risk, and the risk was not remote, insubstantial or far-fetched, the applicant had a well founded fear of persecution within the meaning of the Convention.

7. The Tribunal's finding in this regard was

   I cannot find that the applicant would be unable to obtain Ho Khau [household] registration on his return because of his past political affiliations or for any other Convention reason.  He might experience some difficulties at the local administrative level, but from the evidence before me these difficulties do not appear to be insuperable nor to amount to persecution in a Convention sense

8. It was submitted on behalf of the applicant that this was a finding merely that the Tribunal was unable to find that the applicant would fail to obtain registration and that this finding falls short of the legal criterion that applies in a case such as this.  The applicant submitted that the essential question is not whether he would or would not obtain the household registration; it is whether there was a risk that he would not and if so whether this risk is not remote or insubstantial.  In this regard it was said that the Tribunal's finding that it was unable to find that he would not be able to obtain registration falls short of the Chan test.

9. The applicant contended that this question was really only susceptible of one conclusion and that the failure to adopt the only open conclusion is an error of law.  The applicant stated that it was implicit in the Tribunal's finding that there was a real chance that he would be unable to obtain the registration that permitted him to reside with his wife and son.  It was said that a failure to determine the essence of a case necessarily means that the Tribunal has erred in law.  It was also submitted that there was still room for the operation of some of the content of section 420 notwithstanding the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] 162 CLR 577.

10. I reject the applicant's claims. The Tribunal's finding was in substance that the applicant's claim that he would be prevented from obtaining household registration was not made out.  The Tribunal also found that if he was unable to obtain household registration it would not be for a Convention reason, that is, because of his imputed political opinion, presumably as an opponent of the current government or authority in his country.  So long as the Tribunal proceeded on the basis of the Convention and correctly quoted and understood it, which was the position here, the absence of a Convention reason is a finding of fact and does not raise a question of law. Moreover, the Tribunal's decision can and should also be interpreted to mean that the difficulties which it found he might experience at the local administrative level and which, in the Tribunal’s opinion, "do not appear to be insuperable", do not rise to the level of persecution within the meaning of the Convention.

11. In my opinion the applicant's submission that only one conclusion was open on the evidence is fallacious.  It ignored the Tribunal's findings both in relation to the absence of a Convention reason and in relation to the fact that the difficulties he experienced in obtaining his registration were administrative and not within the framework of the persecution to which the Convention is directed.  There is no substance at all in the applicant's claims for the continuing operation of section 420 in terms of judicial review.

12. In the circumstances, therefore, the application for an order of review must fail and will be dismissed.

    [AFTER DISCUSSION]

13. The application is dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld.

Associate:

Dated:             19 November 1999

Solicitor for the Applicant:	Janice Vu & Associates
Solicitor for the Respondent:	Australian Government Solicitor
Written submissions completed:	15 November 1999
Date of Judgment:	19 November 1999