Vinh, Nguyen Do v The Minister for Immigration & Multicultural Affairs

[1997] FCA 1062

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Application to Refugee Review Tribunal for refugee status - Tribunal’s refusal of applicant’s application for adjournment - Consideration by Tribunal of information collected by it - Whether Tribunal had fairly put to applicant information collected by it - Whether failure to act according to substantial justice a ground of review.

Migration Act 1958 ss 420, 476(1)(a)

Sali v SPC Ltd (1993) 116 ALR 625
Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273
Eshetu v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 621

NGUYEN DO VINH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 227 of 1997

RYAN, SUNDBERG and MARSHALL JJ
16 OCTOBER 1997
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 227  of   1997

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NGUYEN DO VINH APPELLANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	RYAN, SUNDBERG AND MARSHALL JJ
DATE OF ORDER:	16 OCTOBER 1997
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The appellant pay the respondent’s taxed costs of the appeal

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	VG 227 of 1997

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NGUYEN DO VINH APPELLANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	RYAN, SUNDBERG AND MARSHALL JJ
DATE:	16 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

BACKGROUND

The appellant, who was born in Vietnam in 1964, entered Australia on a student visa in 1994.  On 14 June 1995 he applied for a protection visa which was refused by the respondent’s delegate on 28 July 1995.  The appellant applied to the Refugee Review Tribunal to review that decision.  The Tribunal concluded that he was not a refugee within the meaning of the Convention Relating to the Status of Refugees.  The appellant applied to the Court for an order of review of the Tribunal’s decision.  Goldberg J dismissed the application.  The effect of his Honour’s decision was that the decision of the delegate was affirmed.

PROCEEDINGS IN THE TRIBUNAL

The following account is taken from the judgment of Goldberg J which accurately sets out what transpired before the Tribunal. The appellant's initial application for a protection visa was made almost six months after he entered Australia.  In response to questions as to why he had left his country, what he feared might happen to him if he returned, who he thought might harm him if he were to return, why he thought he would be harmed if he were to return, and whether he thought the authorities could and would protect him if he were to return, the appellant wrote "Please see statement".  However, no statement was attached or provided.  On 19 June the Department invited the appellant to put forward any further information in support of his application.  The appellant made no response.

On 25 August 1995 and 29 January 1996 the Tribunal invited the appellant to submit any further documents or arguments upon which he wished to rely.  No further material was provided.  On 19 February 1996 the appellant's solicitor sought a further week to ten days in which to provide a submission, and this request was granted.  No further material was provided, and on 14 March the Tribunal notified the appellant that a hearing was fixed for 11 April.  On 20 March the appellant's solicitor notified the Tribunal by telephone that he, the solicitor, would not be available for the hearing on 11 April or at any time in April, and sought an adjournment to 1 or 2 May.  This request was refused by letter dated 20 March 1996 which, although addressed to the appellant (and later returned to sender) and incorrectly copied to another firm of solicitors, was sent by facsimile transmission to the appellant's solicitor on the same day.  It is apparent from subsequent events that the appellant and his solicitors were aware of the Tribunal's refusal to grant an adjournment.  On 7 April the appellant's solicitor sent the Tribunal a statement by the appellant in support of the application, which was received by the Tribunal on 9 April.

In that statement the appellant asserted that his family had been persecuted in Vietnam.  He set out details of his involvement in, and membership of, the United National Democracy Movement ("the Movement") which had been formed by well‑known dissidents.  Reference was made to a conference organised by the Movement in December 1993 which was banned by the authorities.  The appellant said in the statement that:

Due to the intolerable activities of the government and being subjected to arrest and ill-treatment by the government forces I was unable to continue living in Vietnam.  Had I stayed in Vietnam my life would have been in danger.  So, I decided to leave in early 1994 for Australia.

The appellant contended that if he were to return to Vietnam he would be arrested for his past anti‑government activities and also for applying for refugee status in Australia.

The Tribunal set out in considerable detail the evidence given by the appellant at the hearing.  The appellant described his personal and political activities in Vietnam, and was questioned about the organisation of the conference.  He was asked to comment on the fact that between November 1993 and his departure from Vietnam the authorities had had the opportunity to arrest him if they wished to do so, and he gave an explanation as to why he had not been arrested.  He was also asked to explain his delay in applying for refugee status after he arrived in Australia.  He was asked to name the party members contacted by him on behalf of the Movement, but he was reticent about doing so.  He said that the name "Stephen Young" meant nothing to him, although Young was a person apparently involved in the organisation of the conference.  Three days after the hearing the appellant sent the Tribunal a letter in which he said that on his way home from the Tribunal he did recall Young, and now remembered him as an American involved with "the party" (a reference to the Movement).

The Tribunal made findings based upon the evidence before it.  It noted evidence that in 1995 the Vietnamese Government's human rights record remained poor, and that the Government continued to repress basic political and religious freedom, and to commit numerous abuses.  The Tribunal also noted that a Vietnamese court had given nine political activists substantial sentences for being involved in the Movement.  It noted that the plan to host the international conference to which the appellant had referred was swiftly crushed by the government, which arrested Nguyen Dinh Huy and other leaders and expelled an American lawyer, Stephen Young, who was helping the group to arrange the conference.  The Tribunal set out details from other sources of the Government’s severe reaction to the persons involved with the Movement and the conference.  It is apparent from that evidence that any person involved with the Movement and the conference would be regarded with extreme suspicion and concern by the Government.

Having considered the above evidence, and after forming an adverse view of the appellant’s credit, the Tribunal rejected the appellant's claim that he was actively involved in the Movement.  The Tribunal drew attention to the appellant's delay in applying for refugee status, his failure to submit any substantive material to support his claims until shortly before the hearing, the minimal knowledge he had about the Movement and its membership and, in particular, his inability during the hearing to recognise the name “Stephen Young”.  The Tribunal also regarded as significant the appellant's ignorance of names of members of the organisation apart from its well‑known leader and two other persons, and it regarded as significant the "vague and unconvincing" manner in which the appellant described his own political activities.  On the basis of all these matters the Tribunal rejected the appellant's claim that he was actively involved in the Movement. 

According to the Tribunal, the consequence of this was that there was no real chance that the appellant would suffer persecution by reason of his political opinion if he were to return to Vietnam because, in substance, he would not be seen to have been involved in the Movement.  The Tribunal also observed that despite his claim that he had been involved in anti‑government activities which were known to the authorities and others, between June 1993 and the end of 1994, which was more than twelve months after the arrests of the Movement's members, he remained in Ho Chi Minh City, was thoroughly investigated prior to leaving the country, and was not accused of membership of the Movement.  The Tribunal concluded that the evidence in relation to his family, passport and application for refugee status did not show a real chance that he would be subjected to persecution for a Convention reason.

The Tribunal finally concluded that there was no real chance that  the appellant would suffer persecution in Vietnam because he had overstayed in Australia, whether or not he was seen as someone who had applied for refugee status.  The Tribunal reached this conclusion on the basis of documentary evidence that there were no known cases of mistreatment of asylum‑seekers who returned to Vietnam under the protection of the 1988 Memorandum of Understanding ("MOU") between the Vietnamese Government and the United Nations High Commission on Refugees.  The Tribunal noted that the appellant's situation was not directly covered by the MOU, and that he might not receive the benefit of monitoring by the High Commission, although the evidence appeared to indicate "at least a liberal official attitude to those returning to Vietnam in general".  The Tribunal also noted that there was no evidence that the appellant would be punished in a harsh or oppressive manner (which might amount to persecution) for illegally staying abroad, and said that neither the appellant's departure from Vietnam nor his remaining in Australia was explicitly politically motivated.

PROCEEDINGS BEFORE PRIMARY JUDGE

The only ground of review pursued before his Honour was that procedures required by the Migration Act 1958 (“the Act”) to be observed in connection with the making of the delegate’s decision were not observed within s 476(1)(a) of the Act. The particulars of this ground were as follows:

(a)The decision maker failed to alert the applicant at the hearing, or otherwise, of evidence which the Tribunal had sought out which related to the treatment of persons returned to Vietnam pursuant to the Memorandum of Understanding between the Vietnamese Government and the UNHCR (MOU), thereby denying the applicant the ability to comment on that evidence,

(b)The decision maker failed to alert the applicant at the hearing, or otherwise, of evidence which the Tribunal had sought in relation to the activities of the members of 'Movement to Unite the people and Build democracy' (pp13-15 of the Decision and Reasons for Decision), thereby denying the applicant the ability to comment on that material,

(c)the decision maker failed to grant a short adjournment which would have enabled the applicant to be represented before the tribunal,

(d)The decision maker erred in failing to grant the adjournment when the applicant indicated he was not aware of correspondence between the Department, the tribunal and his representative ...

Counsel who appeared for the appellant at first instance but not on the appeal to this Full Court, submitted that the Tribunal had failed to act according to substantial justice and the merits of the case within s 420(2)(b) of the Act, and that this was a failure to observe procedures required by the Act to be observed for the purposes of s 476(1)(a). For the purposes of dealing with the particulars his Honour assumed the correctness of this submission.

(a)       Refusal of adjournments

Goldberg J pointed out that it was a matter for the Tribunal to determine whether or not it should grant an adjournment, and to determine whether injustice might be occasioned to the appellant if no adjournment were granted.  His Honour noted that the role of any legal representative would have been limited, because s 427(6) provides that a person appearing before the Tribunal to give evidence is not entitled to be represented by any other person.  However he observed that this did not mean the Tribunal was entitled to disregard the appellant’s desire for representation. His Honour said that the appellant had had a substantial time in which to prepare his case, and the fact that his statement was not filed until 7 April 1996 was not a matter brought about by the refusal of the adjournment.  Once the appellant knew, on or about 20 March 1996, that the hearing was proceeding on 11 April, he had an opportunity to make alternative arrangements.  His Honour concluded that the Tribunal had not failed to act according to substantial justice in refusing the adjournment.  It was open to it to conclude that the reason advanced for the adjournment, namely that the appellant’s solicitor was not available, was inadequate.

His Honour came to the same conclusion about the Tribunal’s failure to grant an adjournment when the appellant said he was not aware of certain correspondence between the Department, the Tribunal and his solicitor.  The appellant did not in fact seek an adjournment, and as his Honour observed, the issue was rather a consequence of the earlier refusal to grant an adjournment.  His Honour said that in any event, the appellant’s solicitor had been given every opportunity to respond to the relevant correspondence.

(b)       Failure to put material to appellant

(i)        material concerning MOU

The Tribunal put to the appellant that it had information provided by the United Nations High Commission for Refugees and other sources to the effect that since the late 1980s approximately 72,000 Vietnamese asylum seekers have been repatriated to Vietnam, and that there have been no substantiated cases of mistreatment of any of them.  The Tribunal had further information that there have been no reports of any of those people being punished for overstaying their time abroad.  The Tribunal then pointed out that the people referred to were boat people, whereas the appellant was not, and he was invited to say why he thought he would receive different treatment from the repatriated boat people.  He responded by saying that the boat people left en masse, and unlike him had not engaged in specific activities against the government.

Goldberg J considered that the appellant had been given an opportunity to respond to the factual issues raised by the Tribunal in relation to the MOU notwithstanding that he had not been given the documents containing the information referred to.

1. material concerning the Movement

The Tribunal informed the appellant that it had information about the Movement which it would put to him so he could comment on it if he wanted to.  The sources of the information were drawn to his attention.  The information related to the November 1993 conference, one of the organisers of which was Stephen Young.  Nine activists were arrested at about the time of the conference and sentenced in August 1995.  It was also reported that Nguyen Dinh Huy founded the Movement after he was released from re‑education in 1992, though other sources said he was released in 1988 after thirteen years in prison.  The appellant was asked whether he had any comments to make on that information.  He agreed that the conference was probably held in December rather than, as he had said, in November 1993.  He agreed that Professor Huy and another person were arrested and released roughly at the same time.  He did not know about the number of persons arrested.

Goldberg J said that it was apparent that the Tribunal had used this material to justify the conclusion that anyone involved in the Movement to the extent claimed by the appellant would have been at substantial risk of arrest up to the time he left Vietnam.  Since the Government had not shown any interest in the appellant, the Tribunal rejected his claim that he had been actively involved in the Movement.  His Honour was of the view that the Tribunal had put to the appellant, albeit in an abbreviated form, the substance of the material referred to in its decision, and had given him the opportunity to comment on it, which he did.

GROUNDS OF APPEAL

The appellant has appealed on the ground that the primary judge erred in respect of each conclusion we have summarised under the preceding heading.

(a)       The adjournment refusals

In our view his Honour was quite entitled to conclude, having regard to the history of the appellant’s conduct of his case, that no denial of substantial justice was involved in the refusal to grant the first adjournment sought.  The appellant had been represented by a solicitor since the date of the initial application.  He and his solicitor had become aware, as a result of the Tribunal’s letter of 20 March 1996, that the case would be proceeding on 11 April.  They thus had three weeks to arrange alternative representation.  That was a fair warning.  It was not the case of a last minute need to change representation.  In our view the primary judge made no error in concluding that it had been open to the Tribunal to determine that the reason advanced for the adjournment was inadequate, and that the Tribunal did not fail to act according to substantial justice (assuming, as his Honour did, that failing to act according to substantial justice and the merits of the case is open to the appellant as a ground of review).  It was for the Tribunal to decide whether injustice might result to the appellant from denial of an adjournment: cf Sali v SPC Ltd (1993) 116 ALR 625. We agree with his Honour that Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273 is readily distinguishable. In that case the applicant had never had any legal representation.

As we have said, no requst for an adjournment was made when the appellant said he was not aware of correspondence between the Department, the Tribunal and his solicitor.  But in any event, his Honour correctly observed that the appellant’s solicitor had been given every opportunity to respond to the correspondence.

(b)       The MOU material

No error has been shown in Goldberg J’s treatment of this issue.  The Tribunal put to the appellant the nature of the information it had obtained as to the treatment of the boat people who had been repatriated to Vietnam, and the sources of this information.  It drew attention to the fact that the appellant was not necessarily in the same position as the boat people, and invited him to comment on his particular position.  He did this in a responsive and coherent fashion.  What the Tribunal made of his response is of course a matter for it.

(c)       The Movement material

The material relied on by the Tribunal in its reasons in relation to the arrests of those involved in the Movement was somewhat more detailed than the material it put to the appellant.  The names of the nine persons who had been arrested, and the periods of imprisonment of each, are set out in the reasons.  But we agree with the primary judge that the substance of the material was put to the appellant, and he availed himself of the opportunity to comment on it.  The Tribunal did not expressly tell the appellant why it was putting to him this information about the arrests of certain persons associated with the Movement.  But it would, we think, have been clear enough to the appellant that the fact that certain people had been arrested, and that he had not, suggested that his involvement was not of a level that made him of interest to the authorities.  The primary judge was not in our view in error in concluding that there was no denial of procedural fairness in the Tribunal’s conduct of the review in this respect.

STEPHEN YOUNG

On the hearing of the appeal the appellant raised a matter that is not mentioned in his grounds of appeal.  Since he conducted his own case, we allowed the matter to be raised.  The appellant took exception to a passage in the primary judge’s reasons in which it was said that before the Tribunal the appellant said the name “Stephen Young meant nothing to him”.  It will be recalled that Stephen Young was a person apparently involved in the organisation of the December 1993 conference.  The appellant said he did not say the name “meant nothing to him”.  He said he was asked whether he knew of Stephen Young, and he said he did not.  A related complaint was that the appellant’s evidence had not been properly interpreted.  When asked in what respects his evidence in Vietnamese had not been accurately translated into English, the “Stephen Young” matter was the only instance given.  The transcript shows that in the course of the appellant’s evidence about the conference he was asked “Does the name Stephen Young mean anything to you?”, and he answered “No”.  That is exactly how Goldberg J rendered the exchange.  On the appellant’s version the question was “Do you know a Stephen Young?”, and his answer was “No”.  There is no real difference between the two questions.  Whichever question was asked, the result of the answer is that the appellant did not know Stephen Young.  He subsequently changed his mind, but nothing turns on that.  The point of the question was to ascertain whether the appellant, who claimed to have been involved in the Movement, knew of another person apparently involved in the organisation of the conference.  Whatever the question, the effect of the answer was that he did not.  We have spent time on this issue only because the alleged inaccuracy of the question recorded in the transcript was of much concern to the appellant.

Section 420 and s476(1)(a)

As we have said, the primary judge dealt with the grounds of review on the basis that failing to act according to substantial justice and the merits of the case (s 420) was open to the appellant as a ground of review falling within s 476(1)(a) ‑ failure to observe procedures required to be observed in connection with the making of the decision. Having concluded that the Tribunal had not in any respect failed to accord substantial justice to the appellant, his Honour said that even if it had, he did not consider that such a failure gives rise to a ground of review under s 476(1)(a). He then examined the cases, most of which at that stage supported his view. His Honour disagreed with Hill J’s decision in Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474, which was contrary to his Honour’s view. However, Hill J’s view has since been upheld by a majority on appeal in that case: (1997) 145 ALR 621. The Minister has applied to the High Court for special leave to appeal. Since we have held that there was no failure to accord the appellant substantial justice, we need not enter into this question.

CONCLUSION

The appeal is dismissed, and the appellant must pay the respondent’s taxed costs of the appeal.

I certify that this and the preceding EIGHT (8) pages are a true copy of the Reasons for Judgment herein of Justices Ryan, Sundberg and Marshall

Associate:

Dated:            16 October 1997

The appellant appeared in person.

Counsel for the Respondent:	W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 October 1997