WALJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 231

FEDERAL COURT OF AUSTRALIA

WALJ v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 231

MIGRATION –  judicial review – protection visa – Refugee Review Tribunal – appeal against dismissal of application for judicial review of Tribunal decision – no jurisdictional error – attempt to canvass factual merits – appeal dismissed

Migration Act 1958 (Cth)

WALJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 711 cited

WALJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
WAD 149 OF 2005

FRENCH, STONE AND SIOPIS JJ
7 NOVEMBER 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 149 OF 2005

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	WALJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	FRENCH, STONE AND SIOPIS JJ
DATE OF ORDER:	7 NOVEMBER 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant pay the respondent’s 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
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 149 OF 2005

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	WALJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND .MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH, STONE AND SIOPIS JJ
DATE:	7 NOVEMBER 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1. The appellant is a Vietnamese national who was born on 2 September 1971.  He is a graphic designer by occupation.  He first visited Australia on a student visa on 8 September 1997 and returned to Vietnam on 15 March 1999.  He revisited Australia on 5 April 2003 on a tourist visa.  On 8 May 2003, he applied to the Minister for Immigration and Multicultural and Indigenous Affairs for a protection visa.  In substance, he claimed that he had a well-founded fear of persecution in Vietnam on account of his religious and political beliefs, the latter expressed through cartoons which he had drawn and had published.

2. A delegate of the Minister decided on 14 January 2004 to refuse the grant of a protection visa to the appellant.  On 16 February 2004, he applied to the Refugee Review Tribunal (the Tribunal) for review of that decision.  On 27 August 2004, however, the Tribunal affirmed the decision not to grant a protection visa.  The appellant then applied to the Federal Court for judicial review of the Tribunal's decision.  The grounds of that application, which was prepared by himself and in his own hand, were as follows:

   ‘1.Political point of view through cartoons (2000 - now).

   2.Discriminated because of political view point (2000 - 2003)

   3.Discriminated since in university because of political attitude (1991 - 1997)

   4.Family background related to former government discriminated by local authorities.

   5.Witness brutal (manslaughter) suppression (killing people in a brutal and inhuman way)

   6.Tailing by undercover police

   7.Witness brutal killing people of political reasons lead to psychologically fear.’

   The application was lodged on 21 October 2004, heard by  Nicholson J on 31 May 2005 and  dismissed on the same day.  The appellant lodged a notice of appeal against that decision.  The appeal came on for hearing today.

3. The critical findings of the Tribunal were conveniently summarised by his Honour in his judgment at [11] and [12] – WALJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 711. Before reaching those findings the Tribunal had received written claims from the appellant that a church meeting at which he attended in 1995 was raided by Vietnamese authorities and that when the church was raided his name was taken but he was not interrogated. He did not continue to practise his religion in Vietnam after his pastor departed. However, just before his departure for Australia in 2003, he was followed into a church by a man whom he believed not to be a Christian because the man refused to take communion. He believed this man was monitoring him and other worshippers.

4. In relation to his political beliefs, the appellant’s fear of persecution was based upon: 

   1.his expressions of political opinion in cartoons which he drew;

   2.his membership of a newspaper caricature club; and

   3.the fact that a Communist Party member spoke to him about his cartoons. 

   He had sent cartoons of a political nature to an international competition in Romania.  Were they to be published on the internet, he would be liable for detention.  On return to Vietnam he claimed he would be detained because he had been marked as a man with subversive opinions.  This was likely to happen to him because it had happened to others. 

5. The Tribunal's findings in relation to the appellant’s religious beliefs began with a consideration of country information reports about religious practices in Vietnam.  The Tribunal noted that the Vietnamese government generally allowed persons to practise individual worship in the religion of their choice and that participation in religious activities throughout the country continued to grow significantly.  It was apparent, however, that Vietnamese authorities require religious groups to register as a means of controlling and monitoring religious organisations.  The Tribunal found, that apart from the 1995 incident,  the appellant's profile was low and that he was not prevented from practising his religion. 

6. Despite a raid on the fellowship meeting which he said had happened in 1995,  he was not detained or interrogated.  He continued to visit and attend meetings without incurring penalties from the authorities.  The Tribunal concluded that he did not practise his religion in Vietnam after his pastor departed because he did not like the other churches, not because he was at risk of harm.  He had clarified at the hearing that he was able to attend the Protestant church on his return to Vietnam in 1999 but decided that given the early hour of the service he did not wish to attend.  The Tribunal also found there was no evidence to indicate that he could not return to Vietnam and continue to practise his religion.

7. The evidence that he was followed into a church in 2003 was found by the Tribunal to be unconvincing.  The mere fact that somebody did not take communion was not evidence that that person was collecting information on fellow worshippers.  The Tribunal was not satisfied that the appellant faced any real chance of persecution because of his religion or that his circumstances prevented him from practising his religion. 

8. The learned primary judge’s summary of the Tribunal's findings in relation to the fear of persecution because of his political opinion was as follows (at [12]):

   ‘(a)there was no evidence that his cartoons and other activities were of interest to the authorities or that he had come to their attention for that reason;

   (b)apart from a Party member speaking to him on one occasion, (no date given), his cartoons had not come to the attention of the authorities; 

   (c)there was no evidence that the subject matter of the cartoons would be politically offensive to the authorities and that he had not published the cartoons;

   (d)there was no evidence that the cartoons he submitted for competitions had been published or that they were likely to be;

   (e)there was no evidence that emails and cover letters he allegedly sent to foreign organisations had come to the attention of the Vietnamese authorities;

   (f)it was notable that the applicant had travelled to Australia on a legally issued passport on two occasions and returned to Vietnam from March 1999 to April 2003 without hindrance;

   (g)the applicant’s membership of Amnesty International was not current and he was not actively engaged with other political groups to date nor was he likely to have future involvement;.

   (h)the Tribunal did not accept that the applicant would express his political opinion against the government on returning in such a way as to bring him to the adverse attention of the Vietnamese authorities;

   (i)the Tribunal was not satisfied that the applicant’s fear of persecution for his reason of his imputed  political opinion was well-founded.’

9. At the hearing before the learned primary judge the appellant had applied to the Court to tender, by way of fresh evidence, photocopies of newspaper extracts which contained some of his cartoons.  The appellant wanted to argue that the evidence would support his claim that his fear of persecution for political reasons was well-founded because the evidence would show wide publication of his cartoons with political themes outside Vietnam.  However, his Honour did not receive the evidence because it was neither before the Tribunal, nor relevant to the Court's function of reviewing the Tribunal's decision.

10. His Honour referred to the Tribunal's finding about the tardiness of the appellant’s application for a protection visa and its rejection of his explanation for delay that he did not know if Australia was a place that took refugees.  At the hearing before his Honour, as his Honour found, the appellant had put arguments that depended entirely on attacking the Tribunal's findings of fact.  He said the finding of fact is peculiarly within the province of the Tribunal to determine.  He agreed with the respondent that there was nothing in the Tribunal's reasons to suggest that it had misunderstood or misapplied the applicable law. 

11. As we have pointed out to the appellant in the course of his argument in this case, the function of the Court in reviewing a Tribunal decision is very limited.  It is limited to cases of jurisdictional error which, in ordinary terms, is a serious error of law or procedure. It is apparent that his Honour found that nothing that the appellant put to him in relation to the Tribunal's findings demonstrated that the Tribunal had in any way committed a jurisdictional error.  Indeed, the grounds set out in the application for review of the Tribunal's findings indicated that the appellant was seeking to canvass questions of fact arising before the Tribunal.   This was a function which the Court is unable to undertake upon such applications.

12. The attempt to tender fresh evidence before his Honour showing photocopies of newspaper extracts containing some of his cartoons was also, as his Honour correctly perceived, an attempt to go behind the Tribunal's findings of fact.  Upon judicial review it is not open to the Court to receive evidence to consider whether or not the Tribunal has erred on questions of fact. 

13. On his application before us, the appellant raised for the first time a complaint that the Tribunal had wrongly refused him an adjournment of the proceedings.  On 5 April 2004 he had written to the Tribunal requesting a postponement of the hearing for six months for a number of reasons, one of which was as follows:

    ‘My health condition - after receiving the decision of DIMIA refuse my protection visa I always worry of being sent back to Vietnam I have been being stressful and sleepless.  Now I have to rely on sleeping pills (from the chemist) and depression control tablets (from my doctor) so I am afraid that I do not have a good health condition physically and psychologically for the hearing in the next two weeks.’ (sic)

    He went on to say that he did not think he was well prepared for the hearing as a witness having regard to his physical and psychological health.  He then said:

    ‘But in the next six months I would have good health conditions and other important evidences to prepare for the hearing.’ (sic)

14. The Tribunal responded by telephone as appears from a memorandum dated 7 April 2004 in which an officer of the Tribunal recorded calling the appellant and advising him that the hearing would not be postponed but that the Member would be prepared to accept a statutory declaration from his witness if he could not attend the hearing. It seems that the officer may have though that the appellant was speaking to her about the inability of some witness other than himself to attend the Tribunal.  The appellant told her that he was the one who was having medical problems.  He could not sleep and he was very depressed.  The memorandum then said:

    ‘I told him that the hearing will still go ahead but I advised him that if at any time during the hearing he feels that he needed a break all he had to do was to ask the Presiding Member for 10 -  15 minutes break.’

15. The appellant argued on the appeal that his state of mind when he appeared before the Tribunal left him without the capacity to properly state his case and that in particular he erred in stating, in relation to his delay in the making of his protection visa application, that he did not know Australia was a place that took refugees.  In response to that general complaint, the first and most important answer is that the appellant simply did not raise this as a matter before his Honour either in his written grounds or, it would appear, in his oral submissions.  There is no reference to it in his Honour's reasons.  It is now too late for him to raise that matter before this Court.

16. In any event, it does not appear from the Tribunal's reasons that there was any prejudice flowing to the appellant by reason of the refusal of the adjournment.  The only matter to which he referred in argument was the effect of his mental state upon his explanation for his delay in bringing the protection visa application.  That is an explanation which was rejected by the Tribunal but obviously played only a very peripheral role, if any, in the actual outcome.  That outcome depended upon the Tribunal's rejection of his primary claims for a well-founded fear of persecution based upon religious and political reasons. 

    Grounds of Appeal

17. The grounds of appeal against his Honour's decision, as set out in the notice of appeal,are as follows:

    ‘DIMIA mistake in summarize my travel history lead to prejudice of my case.

    RRT took wrong ground of my refuge (as religious ground).

    RRT misunderstood my statement lead to mis certify my claim, my ground.

    Old evidence but freshly certified was not considered at previous federal court but very important (could threaten my personal safety if I return to my country).

    I need to ask DIMIA to lift the bar so that I can put in new (evidence) information that support my claim (as above mentioned)

    There was no legal aid at the previous federal court that make my case ill-presented.

    claim on political ground was under considered or misleading to bias conclusion

    long-term traumatized experiences and psychological hatred due to long life unfair mistreated/discriminated by government (Vietnam) was not analized or considered but mainly concentrated in definition of "refugee" or "well  founded fear".

    Long term traumatized experiences and psychological hatred (against Vietnnamese government) make applicant seek asylum in other country or turn to a psycho terrorist (that against applicant's conscience) was not considered carefully at DIMIA, RRT or previous Federal Court, but that is a very important claim on political grounds.’ (sic)

18. The appellant also submitted to the Court, by way of argument, a written statement.  Apart from the question of his mental condition before the Tribunal, the statement appears to have gone entirely to the factual merits of the decision made against him.  Nothing in the statement or in the grounds of appeal nor in his Honour's reasons for judgment or those of the Tribunal leads to the conclusion that there was any jurisdictional error on the part of the Tribunal or any error on the part of his Honour. 

19. The appeal is dismissed and the appellant will pay the respondent's costs of the appeal. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice the Court.

Associate:

Dated:             7 November 2005

The appellant appeared in person.
Counsel for the Respondent:	Mr  L Tsaknis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 November 2005
Date of Judgment:	7 November 2005