VLAR v Minister for Immigration
[2004] FMCA 544
•3 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VLAR v MINISTER FOR IMMIGRATION | [2004] FMCA 544 |
| MIGRATION – Appeal from Refugee Review Tribunal – concept of persecution – “real chance” of persecution – Vietnam – political profile – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 91R
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1
Minister for Immigration & Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260
SBBG v Minister for Immigration & Multicultural Affairs (2003) FCAFC 121 (6 June 2003)
| Applicant: | VLAR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 144 of 2003 |
| Delivered on: | 3 September 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 29 October 2003 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R.M. Niall |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondent: | Dr S. Donaghue |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THAT the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 144 of 2003
| VLAR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
23 December 2002 seeking judicial review of the decision of the Refugee Review Tribunal on 14 November 2002 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection (class XA) visa.
The history
The applicant is a citizen of Vietnam. He came to Australia on 9 June 2001 and lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs in accordance with the Migration Act 1958 (Cth) (“the Migration Act”) on 20 July 2001.
The applicant, of Chinese ethnicity, claimed that he feared persecution due to his political support of the Vietnam National Party (VNP).
On 20 February 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant the protection (class XA) visa; the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision on 8 March 2002. In the decision made by the Tribunal on 14 November 2002, the Tribunal affirmed the decision of the delegate not to grant the protection visa. Specifically, the Tribunal held that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol) and therefore the requirements of section 36(2) of the Migration Act were not met.
On 23 December 2002, the applicant lodged an application in the Federal Court of Australia, being V893 of 2002, pursuant to section 39B of the Judiciary Act 1903 (Cth) for review of the Tribunal’s decision. The applicant claimed that the Tribunal had erred in finding that the applicant was not entitled to the grant of a protection visa. Specifically, the applicant claimed that the Tribunal had:
a)set the threshold for persecution too high, and thus had wrongly construed and applied section 91R of the Migration Act;
b)erred in determining that certain conduct suffered by the applicant and his family did not amount to persecution under the Refugees Convention;
c)misapplied the concepts of persecution and systematic and discriminatory persecution; and
d)failed to take into account a relevant matter.
On 16 April 2003, by order of Registrar Efthim of the Federal Court of Australia, the matter was transferred to the Federal Magistrates Court and became MZ 144 of 2003.
The decision
I accept and adopt as an accurate summation of the Tribunal’s reasons, paragraphs 6 to 10 inclusive of the respondent’s contentions of fact and law, filed on 11 April 2003, as follows:
6) The Tribunal accepted the Applicant’s claim that he was a member of a family which had a history of political opposition in Vietnam which may have led to past difficulties with the Communist government. [CB 232] It accepted some of his claims of discrimination because of this background in the past, such as his claim to have been denied tertiary education and a government job because of his family background. [CB 233] It also accepted that, since his arrival in Australia, the applicant had joined the VNP, a political organisation opposed to the Communist government in Vietnam. [CB 235]
7) The Tribunal did not, however, accept the primary claims of persecution made by the Applicant, in large part because it did not accept the Applicant as a creditworthy witness. In particular, the Tribunal found that ‘the applicant has embellished his claims of being of interest to the Vietnamese authorities’. It also found that it did:
‘not accept that his wife was often called in by the authorities as claimed at the hearing. It further follows that the Tribunal does not accept that the letters allegedly from the applicant’s wife referring to continuing police checks, harassment and questioning in his absence reflect that actual situation of his family in Vietnam. The Tribunal finds that these claims of police visits in the letters have been fabricated to the point of being the main focus of family letters as to support the applicant’s application for a protection visa.’ [CB 234]
8) The Tribunal noted and accepted country information from DFAT which stated that ‘the capacity to… depart legally from the country indicates that the person concerned is not of adverse interest to the Vietnamese authorities’, and found that ‘the applicant was able to leave Vietnam because he was not of adverse interest to Vietnamese officials and not for any other reason.’ [CB 235]
9) Later in its reasons, the Tribunal stated, in relation to its finding that the Applicant did not have a political profile that would bring him to the attention of Vietnamese authorities, that:
‘It is supported in this finding by country information, which the Tribunal accepts, which suggests that Vietnamese nationals’ anti-government activities in Australia might be inconsistently or unreliably reported and that minor dissident activity, especially outside the country, is unlikely to have serious consequences for those returning to Vietnam. Based on this country information the Tribunal finds that the applicant does not face a real chance of persecution because of his low key involvement in the VNP in Australia.’ [CB 236]
‘The Tribunal is further supported in its finding by DFAT reporting on the UNHCR’s findings regarding returnees to Vietnam and the Canadian IRB report in the CIPU Bulletin which ‘stresses that (there were) no reports of harm to those returned whose families are opposed to Communism…’ [CB 237]
10) In conclusion, the Tribunal stated:
‘Based on the evidence before it, the Tribunal is not satisfied that the applicant has suffered official harassment in the past which may be considered as persecution under the Convention or that he has or would come to the notice of the Vietnamese authorities on account of his activities with the VNP.
Taking all of his claims into account, individually and cumulatively, the Tribunal is not satisfied there is a real chance that if the applicant returns to Vietnam, now or in the reasonably foreseeable future, he will be persecuted on account of his family background, political opinion or for any other Convention reason. The Tribunal finds that the applicant’s fear of persecution is not well-founded. [CB 237]
The law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 (“Yusef”) at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).
The Full Court of the Federal Court in SBBG v Minister for Immigration & Multicultural Affairs (2003) FCAFC 121 (6 June 2003) at [19] stated that the decision in NAAV is no longer binding. The Court held at [20] that its jurisdiction is limited only to “jurisdictional errors” which includes:
… where the Tribunal has proceeded on a misunderstanding of the law, at least in relation to defining its core task. This includes, in particular, a misunderstanding of the legal meaning of ‘refugee’.
Conclusions and findings
When this matter commenced, Counsel for the applicant indicated that the applicant intended to confine the basis of the application to the ground that the Tribunal had wrongly construed and applied section 91R of the Migration Act by misapplying the concept of persecution.
It is contended by the applicant that the Tribunal found that he had been arrested on a number of occasions (5 in total) [CB 233]:
If he was detained in August 1986 when he was 15 for attempting to leave the country illegally, the Tribunal notes he was released after 5 days and finds that this incident did not have any ongoing adverse consequences for him. Although detained by Vietnamese officials over being the leader in a protest on the sale of some land, of being a leader of a demonstration against paying electricity bills, or arguing about a newspaper report about his family, of discussing with his friends the high cost of memorials and of being detained because he distributed transcripts of President Clinton’s speech, the Tribunal finds that he was released quickly because he was not perceived to be a political dissident.
In the following paragraph at bottom of CB 233, the Tribunal went on to find:
While the applicant may have objected to his country’s regime and to what he believed to be discriminatory conduct against him, his treatment at the hands of officials can not be considered equivalent to the treatment given to high profile opponents of the Vietnamese government. He has not suffered systematic or discriminatory persecution for his views or his actions as defined under the Convention. The Tribunal finds therefore that the applicant was not someone with a high political profile in Vietnam or of serious adverse interest to the authorities and finds, based on his low level political involvement in Vietnam, that he does not face a real chance of persecution if he returns to Vietnam.
It is submitted by Counsel for the applicant that there are two reasons proffered as to why the applicant’s arrests were not persecution. The first is that other people are treated worse and the second one is that he has not suffered systematic or discriminatory conduct. It was further contended that the Tribunal completely misunderstood the concept of systematic and discriminatory conduct. In essence what the applicant contends is that the findings of the Tribunal are inconsistent with the ordinary meanings of those words. In support of this argument I was referred to what McHugh J said after a review of the authorities in Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1, at [60]:
All these statements are descriptive rather than definitive of what constitutes persecution for the purpose of the Convention. In particular, they do not attempt to define when the infliction or threat of harm passes beyond harassment, discrimination or tortious or unlawful conduct and becomes persecution for Convention purposes. A passage in my judgment in Chan v Minister for Immigration and Ethnic Affairs ((1989) 169 CLR 379 at 430) suggests that a person is persecuted within the meaning of the Convention whenever the harm or threat of harm "can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class". Read literally, this statement goes too far. It would cover many forms of selective harassment or discrimination that fall short of persecution for the purpose of the Convention. Moreover, it does not go far enough, if it were to be read as implying that there can be no persecution unless systematic conduct is established.
What the respondent says is that the applicant is now advancing a very much narrower argument than advanced previously and, in particular, before the Tribunal. Counsel for the respondent points out that the much narrower aspect that is now pursued was not the main matter the Tribunal had been asked to address. The factual claims upon which the applicant had relied before the Tribunal, which the Tribunal had found to be embellishments and fabrication, had been abandoned as had the main claim that he had come to Australia, involved himself in political demonstration which had had consequences with the authorities in Vietnam. And indeed the crux of what the Tribunal did was that it made a decision based on credit. In essence the Tribunal said it did not believe what the applicant was saying, therefore he was not a refugee. In my view that is an accurate summation of what happened and it is now appropriate to look at the narrower claim advanced by the applicant in that context.
The Tribunal at CB 237 found in the last four paragraphs here set out:
The Tribunal also finds that looking at his claims cumulatively, that is, his family’s political background, his Chinese ethnicity, his low level political involvement in Vietnam and his low level involvement in the VNP in Australia, do not give rise to a real chance of persecution if her [sic] returns to Vietnam.
The Tribunal also finds that on return, if he was to resume his political involvement in Vietnam, that would be at a low level as it was in Vietnam before he left; hence the authorities would not perceive him as a high profile political dissident.
Based on the evidence before it, the Tribunal is not satisfied that the applicant has suffered official harassment in the past which may be considered as persecution under the Convention or that he has or would come to the notice of the Vietnamese authorities on account of his activities with the VNP.
Taking all of his claims into account, individually and cumulatively, the Tribunal is not satisfied there is a real chance that if the applicant returns to Vietnam, now or in the reasonably foreseeable future, he will be persecuted on account of his family background, political opinion or for any other Convention reason. The Tribunal finds that the applicant’s fear of persecution is not well-founded.
The Tribunal has clearly applied in a completely conventional way the “real chance test” as to the meaning of persecution. Reference is also made with respect to the applicant; “that he does not face a real chance of persecution if he returns to Vietnam” [CB 234].
What the respondent submits with respect to the findings referred to at CB 233 is that they are in effect findings of fact and that it is a matter for the Tribunal. It was not determined by the Tribunal making a particular legal conclusion about what “persecution” meant that was wrong. It was just a straight forward factual decision:
… where there is a matter of fact and degree involved, as there almost invariably will be when the question arises whether particular conduct amounts to persecution, the Tribunal will be the final arbiter. (Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260, Hill J)
The respondent says in relation to the third paragraph of CB 233, the words “even if” indicated that the Tribunal is assuming, in the applicant’s favour, that the account that followed should be accepted. If he was detained when he was 15 for attempting to leave the country illegally, that is a breach of the criminal law, not a matter that would be relevant for Convention purposes. The Tribunal noted that he was released after 5 days. The Tribunal then found “although detained by Vietnamese officials over being the leader in a protest on the sale of some land”. The respondent submitted, and I accept, that there was no evidence that it related to political opinion in any way.
The finding “of being a leader of a demonstration against paying electricity bills” can hardly be construed as relating to political opinion, nor can “of arguing about a newspaper report about his family”. Whilst the finding “of discussing with his friends the high cost of memorials and of being detained because he distributed transcripts of President Clinton’s speech” may well indicate a political motive, that view is quickly dispelled by: “the Tribunal finds that he was released quickly because he was not perceived to be a political dissident”.
Counsel for the respondent pointed out that at CB 225 the Tribunal sets out the evidence on which the Tribunal made the findings at CB 233, and in particular in the third last paragraph on CB 225:
The applicant said he was not a member of a political party or group. He had organised meetings with other young people and discussed local developments but essentially this was friends talking.
These in essence are the facts which the applicant is now seeking to elevate to jurisdictional error. I am satisfied that the findings at CB 233 do not in this context indicate a misconstruction or misunderstanding of the meaning of “persecution”. Indeed in Minister for Immigration & Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259 at 271-272, the Court held that a “fair reading” of the reasons incorporates the principle that the Tribunal’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”.
In all the circumstances I am satisfied that there has been no jurisdictional error and that the appeal should be dismissed accordingly.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: J. O’Brien
Date: 3 September 2004
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