WAJN v Minister for Immigration

[2003] FMCA 393

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAJN v MINISTER FOR IMMIGRATION [2003] FMCA 393

MIGRATION – Review of RRT decision – application for protection visa – whether any jurisdictional error in decision of RRT.

Applicant: WAJN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: WZ 59 of 2003

Delivered on: 29 July 2003

Delivered at: Sydney

Hearing date: 29 July 2003

Judgment of: Baumann FM

REPRESENTATION

Applicant: Self represented

Counsel for the Respondent: Mr Ritter

Solicitor for the Respondent: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

2. That the applicant pay the respondent's costs fixed in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 598 of 2003

WAJN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant, who is a citizen of Vietnam, arrived in Australia on

   
   

   10 June 1992, when 18 years old, sponsored by his stepfather on a legally obtained Vietnamese passport.  The applicant was involved with criminal activities in Australia and was sentenced in October and November 1996 to eight years imprisonment.  He was paroled in August 1998 but did not lodge an application for a Protection (Class XA) Visa, under the Migration Act 1958 (“the Act”) until 5 September 2002.  This was after the Vietnamese government began accepting deportations from Australia. 

2. On 27 November 2002, a Delegate of the respondent refused the visa, resulting in an application to the Refugee Review Tribunal (“RRT”).  On 21 January 2003 the Refugee Review Tribunal affirmed the Delegate's decision.

3. The applicant maintains he is a person to whom Australia has protection obligations under the Refugees' Convention, as amended by the Refugees' Protocol.  The basis for his claim, that he has a well founded fear of persecution for a Convention reason, can be summarised as follows:

4. He feared returning to Vietnam as he believed he would be imprisoned, tortured or killed because he had been convicted of a criminal offence in Australia.  He relied upon Article 6 of the Vietnamese Penal Code to support his contention:

   a)as an ethnic Chinese citizen, he fears continual discrimination by police and other Vietnamese people;

   b)in his culture it is important to look after your parents.  His mother lives in Australia and he feels he should also remain to care for her.  He says both his mother and his stepfather are elderly and terminally ill;

   c)Vietnam is a Communist country and he does not like Communists as he claims they can easily confiscate your property.  He acknowledged that this had not happened to him when he lived in Vietnam, but claimed he had seen it happen to other people.

5. In addition to material provided by the applicant, the applicant gave oral testimony to the RRT at his hearing on 7 January 2003. The RRT found that there may have been discrimination against Chinese that was more prevalent in 1979 when the applicant was three years old.  However, there is no real chance that the applicant will be persecuted in the reasonably foreseeable future for reasons of being ethnic Chinese.

6. Furthermore, the RRT rejected a contention that the applicant is a member of a particular social group, namely, a group of persons who commit offences overseas who are recognisable as a separate group within Vietnamese society or are identifiable as a social unit.  The RRT found that even if the applicant was a member of such a social group the persecution the applicant fears is punishment under the Vietnamese Penal Code, which is a law of general application to all citizens.  The Tribunal relied upon the remarks of Brennan CJ in Applicant A v The Minister (1997) 190 CLR 225-233. The RRT cogently analysed the evidence before it and I am satisfied the ultimate conclusion was open to it on the evidence.

7. By application filed 31 January 2003, the applicant sought a review of the RRT decision on the grounds that:

   1.I have a family in Australia, my old parents.

   2.I can't go back home (Vietnam) because I had committed crime in Australia and that would be a big problem for me with the Communist government in Vietnam.

8. Despite being directed to file any amended application and also written submissions, the applicant did neither.  At the hearing before me today and with the assistance of a Court provider interpreter, the applicant offered further evidence in the form of statements from the following sources:

   a)Marked exhibit A, but given little weight by me, was a bundle of documents, many of which have been available for some months and all of which go to his desire to remain; his remorse for his criminal actions, the training he has undergone, including anger management; and his relationship with an Australian citizen, Michelle Chambers, who he names as his fiancee.  None of these documents were, it seems, produced to the Delegate or the Refugee Review Tribunal at a time when the applicant was legally represented. 

   b)A further handwritten statement by the applicant in which he makes this plea: 

   “Lastly, I have denied to access any legal assistance and I realise that my status of applying for a Protection Visa is not satisfactory as required by the Refugee Convention. I had no legal representative to support my case in applying for a Protection Visa, but I do have my mother and fiancee supporting me to apply for visa to remain in Australia permanently.  I do believe I deserve right to be here and I want to stay here to pay my respect to people that love and support me in this most critical part of my life and most importantly to this Australian society that I owed my life to. 

   That's all I have to say in desperate attempt to strive for a freedom in this very Australian society but, if the Tribunal decides to send me back to Vietnam, then there is nothing more I can say or do but to go back on one condition as the Immigration Department's spokesman promised me a "safe return".  On numerous occasions they have interviewed me to send me back.  They often verbally promised me a safe return without any prosecution due to the crime that I did and paid dearly in Australia.  I need this promise to be written down in black and white so that it is a guarantee of a safe return for me and my wife to be to have a confident trip back. 

   I have been kept in solid confinement for too long.  Eight years of my youthful life is wasted.  There is a certain limit a person can endure.  My suffering is far beyond unimaginable level.  I can't handle it any longer.  I need freedom, a chance to live a normal life like everyone do.  One or two years living happily with Michelle, my fiancee, is worth dying for, rather than keep me in this environment.  I have had enough of staying in this hectic enclosure.”

9. I indicated to the applicant that the relief and directions to the Minister he sought were beyond my power. 

10. Out of a sense of curiosity, I inquired as to why the applicant has apparently been held in detention for so long.  Mr Ritter, who appeared for the respondent, said:

    a)Firstly, it took successful but protracted, negotiations between the Australian and Vietnamese governments to enable the deportation of persons from Australia to Vietnam; and

    b)Secondly, the applicant had pursued other administrative review remedies seeking to have the deportation order set aside through the Administrative Appeals Tribunal and the Federal Court.  Such proceedings were only concluded by Nicholson J last week. 

11. I remind myself that the Court cannot review the merits of the Tribunal's decision (Miea v Wu Shan Liang (1996) 185 CLR 259 at 272) and that there is no error of law, let alone a jurisdictional error, if the Tribunal made a wrong finding of fact (Abebe v Commonwealth (1999) 197 CLR 510 at [137] ). I am satisfied that the Refugee Review Tribunal made no legal error, going to jurisdiction, in coming to its decision.

12. In addition, the decision of the RRT was, in my view, a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Act.

13. I find that the decision of the Refugee Review Tribunal is a privative cause decision, having regard to the authority of the High Court in, Plaintiff S157 of 2002 v The Commonwealth (2003) HCA2.

14. In the circumstances, I will dismiss the application.  I am satisfied that an order for costs should be made.  I will order the applicant to pay the respondent's costs fixed in the sum of $4,000.

I certify that the preceding fourteen (14 paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate: 

Date: