Vann v Minister for Immigration and Multicultural Affairs

[2001] FCA 321

FEDERAL COURT OF AUSTRALIA

Vann v Minister for Immigration & Multicultural Affairs [2001] FCA 321

MIGRATION – whether the Tribunal made the required findings of fact – whether the Tribunal applied the “real chance” test in accordance with law

Migration Act 1958 (Cth) ss 430, 430(1)(b), 430(1)(c) and Pt 8

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 - cited

SOVANARA VANN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V920 of 2000

JUDGE:        MERKEL J
DATE:          29 MARCH 2001
PLACE:        MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V920 OF 2000

BETWEEN:	SOVANARA VANN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	29 MARCH 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT the application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V920 OF 2000

BETWEEN:	SOVANARA VANN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	29 MARCH 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant, a citizen of Cambodia, arrived in Australia on 3 April 1996. His first application for a protection visa was refused but he was permitted by the Minister, pursuant to s 48B of the Migration Act 1958 (Cth) (“the Act”), to lodge a second application for a protection visa. A delegate of the Minister again refused to grant a protection visa to the applicant and, on 27 October 2000, the Refugee Review Tribunal (“the RRT”) affirmed the delegate’s decision. The applicant has applied to the Court for the review of the RRT’s decision pursuant to Pt 8 of the Act.

2. The applicant claims that between 1991 and 1995 he was an active senior military officer in the Funcinpec forces in Cambodia as well as a supporter and member of the political wing of Funcinpec.  The applicant did not suffer any acts of persecution by reason of either role prior to his arrival in Australia in 1996.  He claimed, however, that the political turmoil since his departure and, in particular, the victimisation of former Funcinpec military officers and supporters that has occurred in Cambodia since 1996, exposes him to a real risk of persecution by reason of his association with Funcinpec.  The applicant also stated that his fear was, in part, based upon his having joined the Funcinpec party in Australia, which he claimed resulted in him being a refugee sur place.  The RRT appeared to accept the substance of the applicant’s evidence about his association and role in Funcinpec, but stated that the association or role had not led to him coming to the adverse attention of Funcinpec’s political foes in Cambodia.

3. The RRT reviewed the evidence, especially the country reports concerning Cambodia since the cessation of political violence in 1998, and concluded that the applicant’s fear of political persecution was not well founded.  The RRT stated that the country information demonstrated:

   ·     that since the national election in July 1998 the political situation had stabilised, resulting in Funcinpec supporters ceasing to be at risk of being harmed by reason of their political opinions;

   ·     that Funcinpec forces have now been integrated into the Royal Cambodia Armed Forces and former members of those forces, such as the applicant, are not at risk of persecution by reason of their political opinion.

4. In reliance upon those findings and the detailed country information outlined in its decision, the RRT expressed its conclusion as follows:

   “The applicant did not identify any instances of persecution during the period after the 1993 elections until his departure from Cambodia in April 1996, he was not involved in the political violence of 1997 and 1998, and noting that the political situation in Cambodia has stabalised and people with a history of support for FUNCINPEC are not at risk of persecution, the Tribunal finds that there is not a real chance that the applicant would be harmed for reason of his political opinion or for any other Convention reason if he returned to Cambodia now or in the reasonably foreseeable future.  The Tribunal finds that the applicant’s fear of persecution is not well-founded.”

5. Counsel for the applicant claimed that the RRT failed to make findings of fact material to its decision and therefore did not comply with ss 430(1)(b) and (c) of the Act: see Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. In the alternative, counsel submitted that the RRT had failed to apply the real chance test in determining whether the applicant had a well founded fear of persecution.

6. The two factual matters relied upon by counsel for the applicant in support of her contention that the RRT had failed to comply with s 430 of the Act were:

   ·     the RRT failed to make explicit and separate findings concerning the fear claimed by the applicant as a member and supporter of Funcinpec and as a senior military officer of its fighting forces;

   ·     the RRT failed to make findings in relation to the applicant’s claim that he had become a refugee sur place after he joined the Funcinpec political party in Australia.

7. Counsel for the applicant argued that the failure to deal with these questions of fact indicated that the RRT had not discharged its function of reviewing the decision of the delegate by considering all of the material and, in particular, making the required findings of fact in respect of all of the claims of the applicant.  Counsel relied upon an Australian Embassy Country Information Report concerning Cambodia prepared in April 1998.  It was submitted that the report indicated that individuals considered to be at risk of harm in Cambodia included Funcinpec activists.  It was claimed that, as the applicant fell into that category, it was necessary for the RRT to deal with the risk he faced in that regard.

8. The problem with counsel’s submissions is that the RRT appeared to accept that Funcinpec supporters or members may well have been at risk prior to the national elections in July 1998, but that the political situation since then had changed with the consequence that they were no longer at risk.  Further, in making the findings I have referred to above, it is clear that the RRT treated Funcinpec supporters who are no longer at risk as including members of both the political and military arms of Funcinpec.  In those circumstances it seems to me that the RRT has considered and made the required findings of fact in respect of the applicant’s claimed fear of persecution but concluded that, whatever the risk may have been prior to the 1998 elections, that risk is no longer real.

9. The RRT referred to the applicant joining the Funcinpec party in Australia but did not appear to accept that that made the applicant a refugee sur place.  While it is correct that there was no explicit finding concerning that aspect of the matter, it must follow from the RRT’s conclusion that Funcinpec supporters and members in Cambodia are not at risk that, likewise, Funcinpec supporters or members in Australia are also not at risk.

10. Viewed as a matter of substance, the RRT has made the requisite findings of fact in relation to the applicant’s claims in compliance with its obligations under s 430 of the Act.

11. Counsel for the applicant conceded, correctly in my view, that if she failed in her submissions on the factual issues it would follow that the applicant must fail on his claim that the RRT had not properly applied the real chance test.  In any event, irrespective of the concession, I am not satisfied that the RRT misunderstood or misapplied that test or otherwise failed to discharge its function in accordance with law on its review of the delegate’s decision.

12. Accordingly, for the foregoing reasons, the application is to be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:            29 March 2001

Counsel for the Applicant:	Ms K Anderson
Counsel for the Respondent:	Mr C Horan
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	23 March 2001
Date of Judgment:	29 March 2001