Trinh v Minister for Immigration and Multicultural Affairs

[1999] FCA 1682

FEDERAL COURT OF AUSTRALIA

Trinh v Minister for Immigration and Multicultural Affairs [1999] FCA 1682

TRINH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1043 OF 1999

SACKVILLE J
SYDNEY

2 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1043 OF 1999

BETWEEN:	MR DANG HAI TRINH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	2 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1043 OF 1999

BETWEEN:	MR DANG HAI TRINH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	2 DECEMBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

The Proceedings

1. The applicant is a citizen of Vietnam, born in 1971.  He arrived in Australia on 4 July 1997 on a student visa valid to December 1997.  On 19 June 1998 (some six months after the expiry of his visa), the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.

2. On 1 July 1998, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the applicant a protection visa.  The applicant sought review of that decision on 28 July 1998.

3. On 3 May 1999, the Refugee Review Tribunal (“RRT”) wrote to the applicant, advising him that it was unable to make a decision in his favour on the documentary material alone.  It invited him to attend a hearing of the Tribunal and to give oral evidence in support of his claim.  On 20 May 1999, the applicant completed a response to hearing offer, stating that he wished to attend a hearing, but did not want the RRT to take evidence from any witnesses.  By a letter dated 20 May 1999, the RRT notified the applicant that a hearing would take place on 1 July 1999.  The letter warned the applicant that the RRT would not change the hearing date unless there were very good reasons for doing so, and that if the applicant thought he might not be able to attend, he should contact the RRT immediately.

4. It should be noted that in his application to the RRT, the applicant had provided details of solicitors who were said to be acting on his behalf.  The RRT sent copies of all correspondence with the applicant to the firm of solicitors, including the correspondence providing details of the hearing date.

5. The applicant did not appear at the scheduled hearing.  The RRT took no further steps for a week in order (as the reasons explain) to give the applicant an opportunity to come forward with a compelling reason for failing to attend the hearing.  No such explanation was provided.  Nor did the applicant provide any material in support of his claims other than that contained in his application for a protection visa.

6. On 29 July 1999 the applicant’s adviser telephoned the RRT to ascertain the progress of the RRT’s deliberations in the matter.  The adviser was informed that the RRT was nearing completion of a decision.  Shortly thereafter, on 18 August 1999, the RRT delivered its decision, affirming the delegate’s decision not to grant a protection visa.  The applicant now seeks review of that decision.

   Legislation

7. Under s 65(1) of the Migration Act 1958 (Cth) (“the Migration Act”), the Minister may grant a visa only if satisfied that the criteria prescribed by the Migration Act or the Migration Regulations have been satisfied.  A criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (“the Convention”): Migration Act, s 36(2). That criterion for protection is fulfilled where, at the time of the decision, the Minister “is satisfied that the person is a person to whom Australia has protection obligations under the [Convention]”: Migration Regulations 1994 (Cth), Sch 2, reg 866.221.

8. Article 1A(2) of the Convention defines a refugee as a person who

   “owing to well-founded fear of being persecuted for reasons, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable; or who, owing to such fear, is unwilling to avail himself of the protection of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

   The RRT’s Decision

9. In the absence of the applicant, the RRT reviewed the delegate’s decision on the basis of the documentation alone.  This material included the applications for a protection visa in which the applicant set out his claims, and country information concerning Vietnam from the United States Department of State, dated 26 February 1999.

10. The applicant stated that he was a lecturer in languages at a technical college associated with the Hanoi University.  He was in charge of four classes and taught more than 100 students.  According to his application, in June 1996 (prior to the Eighth Communist Party Conference), one of the student newsletters of his college published a cartoon that was critical of certain named Communist Party personnel.  A copy of the cartoon was annexed to the applicant’s application.  The cartoon was apparently popular among the students and soon came to the attention of the authorities.

11. The applicant claimed that he was questioned on a number of occasions about the cartoon because the students who had published the cartoon were under his authority.  However, no action was taken against him and the investigation slowed down in the period after the election.  The applicant remained in his position at the college until mid-1997, when he departed Vietnam for Australia.

12. The applicant claimed that he was able to leave Vietnam only by bribing an official who granted him a travel document for a refresher course in English at the Sydney Institute of Technology.  The applicant stated that he feared that if he were returned to Vietnam, he would be apprehended by the Internal Security Department and would be investigated for his “opposition activities”.

13. The RRT accepted that the applicant had held a lecturing position at a college in Vietnam until he departed for Australia and that students of the college published the satirical cartoon annexed by the applicant to his application.  The RRT also accepted that the cartoon could easily have come to the attention of the authorities and that an investigation may have ensued, had the matter been considered serious enough.

14. The RRT considered, however, that the fact that the applicant continued to hold his job one year after the incident indicated that the applicant was not likely to face reprisal.  This finding was supported by the fact that the investigation had since slowed down.  The RRT took the view that it would be a relatively easy matter for the investigators to establish who was responsible for the cartoon.  It did not accept that the applicant would have been held responsible for publishing or distributing the cartoon, since he had been a lecturer and did not occupy a position of authority, such as dean, registrar, administrator or chancellor of the college.

15. The RRT found that the circumstances surrounding the departure of the applicant from Vietnam further supported the conclusion that he did not have a well-founded fear of persecution in that country.  Although the applicant’s statement that he bribed an official to obtain a passport was consistent with the country information concerning Vietnam, the RRT considered it significant that the applicant’s passport had been issued in his own name and indicated that he had been cleared by airport security the day he left Vietnam.  The RRT also considered that the applicant’s delay of one year between the publishing of the cartoon and his departure was not consistent with a fear for his liberty.  The RRT expressed the view that the applicant’s unexplained delay in applying for refugee status in Australia was “incongruous” with his claimed fear of persecution.

16. The RRT summarised its conclusions as follows:

    “The Applicant leaves the Tribunal with the impression of a person who desired to remain here for other reasons and who therefore did nothing about leaving when it was time to go, and who, when later feeling pressured to regularise his status here, decided to fall back on a long-dead issue, the one about the cartoon, which was evidently not found by Vietnamese authorities to have anything of significance to do with him at all.”

17. For these reasons, the RRT concluded that it was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he were to return to Vietnam.  Accordingly, it rejected his claim for a protection visa.

    Reasoning

18. In the application for review filed in this Court, the applicant identified a number of errors on the part of the RRT.  These were as follows:

    (1)   The RRT failed to apply properly the test of a well-founded fear of persecution required by the Convention.

    (2)The RRT failed to consider the applicant’s fear of persecution for reasons of political opinion.

    (3)It was not open to the RRT to find that the applicant did not have a well-founded fear of persecution having regard to the investigation, interrogation and surveillance allegedly suffered by the applicant in 1996.

    (4)The RRT erred in rejecting the applicant’s claim that he would have been considered responsible for the cartoon published by the students.

    (5)The RRT erred in its conclusion that the applicant did not have a well-founded fear of persecution because he remained in his position at the college until July 1997.

    (6)The RRT erred in finding that the applicant did not have a well-founded fear of persecution by reason of his ability to leave Vietnam freely.

19. No argument has been put today in support of the errors of law identified in the application.  There is in any event no foundation for any of them. 

20. The RRT stated the correct test for determining whether a person has a well-founded fear of persecution for a Convention reason.  Nothing in the RRT's reasons indicates that an incorrect test was applied.

21. The RRT did consider the applicant's claim to fear persecution by reason of political opinion.  The RRT's consideration of this question was necessarily brief because the material before it was very limited.  That was because the applicant chose not to appear at the RRT hearing.

22. The applicant in his submissions indicated that the reason for his non-appearance was due to a difficulty obtaining finance to obtain legal representation.  Assuming this to be the case, it hardly explains why he chose not to appear on the scheduled day of the hearing or to take any steps thereafter to bring any relevant material to the attention of the RRT.  It certainly involves no failure on the part of the RRT to comply with statutory requirements.

23. The other issues raised by the applicant in the application constitute an impermissible attempt to address the merits of the claim dealt with by the Tribunal. The role of this court is limited to ascertaining whether there has been an error of law or some other basis for setting aside the decision of the Tribunal permitted by s 476(1) of the Migration Act.

24. Nothing that the applicant has put forward today by way of submissions provides any basis for setting aside the RRT's decision.  Accordingly, the application will be dismissed.  The applicant must pay the respondent’s costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             2 December 1999

Solicitor for the Applicant:	Unrepresented
Counsel for the Respondent:	S. Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 December 1999
Date of Judgment:	2 December 1999