WALJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 711

FEDERAL COURT OF AUSTRALIA

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

Migration Act 1958 (Cth) s 474(1), 474(2),

Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 cited
Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S134 of 2002 (2003) 211 CLR 441 cited

WALJ V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
WAD 238 of 2004

NICHOLSON J
31 MAY 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 238 OF 2004

BETWEEN:	WALJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NICHOLSON J
DATE OF ORDER:	31 MAY 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application for review be dismissed.

2.The applicant pay the respondent’s costs of the application.

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 238 OF 2004

BETWEEN:	WALJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NICHOLSON J
DATE:	31 MAY 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

1. These are the reasons why today the applicant’s application for review was dismissed.

2. The applicant, who claimed to be a citizen of Vietnam, arrived in Australia on 5 April 2003 on a tourist long-stay visa.  On 9 May 2003, he lodged an application for a protection (class XA) visa with the respondent’s Department (‘the Department’).  On 14 May 2004 a delegate of the respondent refused to grant the applicant a protection visa.  On 27 August 2004, the Refugee Review Tribunal (‘the Tribunal’) affirmed the decision of the delegate not to grant the applicant the protection visa.  The applicant sought judicial review of the decision of the Tribunal.  In its reasons the Tribunal found the applicant is a citizen of Vietnam.

3. It is germane to mention as part of the background circumstances that the applicant initially travelled to Australia on 8 September 1997 on a student visa.  There was no record of any enrolment for the applicant in a course of study so that he was advised by the Department or its predecessor that his visa may be liable for cancellation.  He departed Australia on 15 March 1999. 

4. The decision of the Tribunal is a privative clause decision as defined in s 474(2) of the Migration Act 1958 (Cth) (‘the Act’). It is therefore subject to the provisions of s 474(1) of the Act. In order to avoid the consequences of s 474 of the Act it was necessary for the applicant to establish jurisdictional error on the part of the Tribunal so as to establish that there has been no relevant decision made by the Tribunal to which s 474 of the Act can apply: Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476; Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S134 of 2002 (2003) 211 CLR 441.

5. The applicant appeared unrepresented.  As a consequence, he had not formulated grounds of review directed to establish jurisdictional error.  It was necessary, therefore, for the Court to examine the decision of the Tribunal for the existence of any factor that may support the presence in the Tribunal’s reasoning of any jurisdictional error. 

6. The Court received a written statement and oral submissions from the applicant.  In his written statement the applicant denied the accuracy of three matters set out as issues of fact in the Tribunal’s reasons.  The first was that the Tribunal found that, as a cartoonist, he had contacted a group or club in Egypt, but that was not the case, he says.  Also, the Tribunal found he did not watch Vietnamese television or read Vietnamese newspapers, whereas that was not what he had stated to it.  Likewise, he says that he did not tell the Tribunal that the reasons he did not apply for refugee status on the occasion of his first visit was because he did not know if Australia was a place that took refugees.  These are issues of fact which cannot support a finding of jurisdiction error.  The applicant also set out the foundations of his claim in more detail in a letter to the Tribunal dated 12 February 2004, which is reflected in the reasoning of the Tribunal.

7. On the hearing of the application the applicant did not contend the Tribunal had misunderstood the law.  Rather, he submitted that his application was brought on the basis of his fear of persecution being due to his imputed political opinion and submitted that the Tribunal had misapplied the law in his case.  He stated that, as a cartoonist of public events, he feared persecution from the State if he returned to Vietnam.  Although he had referred to issues concerning his religious beliefs, he had not based his application on that claim.  Nevertheless, he accepted that in his letter of 12 February 2004 to the Tribunal he had set out his submissions under the heading ‘religious reasons’ and ‘political reasons’ so that the Tribunal had been bound to consider both as claims. 

8. The Tribunal referred to the applicant’s initial application before the delegate concerning the applicant’s claims of persecution on account of his religious belief.  The applicant there claimed that:

   • a church meeting in 1995 was raided by the Vietnamese authorities.  When the church was raided the applicant’s name was taken, but he was not interrogated;
   • he did not practise his religion in Vietnam after his pastor departed.  He did not like the other churches;
   • on another occasion just prior to his departure for Australia in 2003 he was followed by a man into a church.  The applicant believed that this man was not a Christian because he refused to take communion;
   • this man was monitoring the applicant and other worshipers.

9. The applicant’s claimed fear of persecution due to his imputed political opinion was based on:

   • his fear of persecution by the authorities because he drew cartoons in which he expressed his political opinion;
   • his membership of a newspaper caricaturist club;
   • a Communist Party member spoke to him about his cartoons.  He sent cartoons of a political nature to an international competition in Romania.  If these cartoons were published on the Internet he would be liable for detention.  On return to Vietnam he would be detained because he has been ‘marked as a man with subversive opinions’, this is likely because it has happened to others.

10. In relation to his claim that he would be persecuted on account of his religious beliefs, the Tribunal considered various country information reports and religious practices in Vietnam.  The Tribunal noted that the government generally allowed persons to practise individual worship in the religion of their choice, and participation in religious activities throughout the country continued to grow significantly.  Having regard to the country information, it was apparent that the Vietnamese authorities required religious groups to register as a means of controlling and monitoring religious organisations. 

11. The Tribunal noted that:

    (a)the applicant’s profile was low and he was not prevented from practising his religion;

    (b)apart from the 1995 incident the applicant was not hindered from practising his religion;

    (c)on the applicant’s own evidence, despite a raid on the fellowship meeting he had attended, he was not detained or interrogated.  Moreover he continued to visit and attend the meetings without incurring penalty from the authorities;

    (d)it concluded that the applicant 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;

    (e)the applicant clarified at the hearing that he was able to attend a 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;

    (f)there was no evidence to indicate that the applicant could not return to Vietnam and continue to practise his religion;

    (g)the applicant’s evidence that he was followed into a church in 2003 was ‘unconvincing’.  The mere fact that someone did not take communion was not evidence that someone was collecting information on fellow worshipers;

    (h)the Tribunal was not satisfied that the applicant faced a real chance of persecution in Vietnam for reason of his religion or that his circumstances prevented him from practising his religion.  Any chance of the applicant being seriously harmed by State agents on account of his religion was remote.

12. In relation to the applicant’s claim that he feared persecution because of his expressed political opinion through his cartoons, the Tribunal found:

    (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 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 that 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.

13. Despite these findings by the Tribunal, the applicant sought, on the hearing of the application, for the Court to receive by way of fresh evidence photocopies of newspaper extracts containing some of his cartoons.  He wished to submit that such evidence supported his submission 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.  He feared persecution in Vietnam if this became known there.  The Court did not receive the evidence because it was neither evidence which was before the Tribunal nor evidence relevant to the Court’s function of review of the Tribunal’s decision. 

14. Finally, the Tribunal referred to the tardiness of the applicant’s application for a protection visa, the applicant not having lodged an application for a protection visa during his initial stay of 18 months in Australia and having returned to Vietnam in March 1999.  In the Tribunal’s view this indicated an absence of a real or genuine fear of Convention-related persecution by the applicant.  It did not accept his explanation for the delay that he did not know if Australia was a place that took refugees.

15. Having regard to the totality to the applicant’s circumstances, the Tribunal was not satisfied that the applicant faced a real chance of persecution for a Convention reason if returned to Vietnam, either at the time of the hearing or in the reasonably foreseeable future.

16. On the hearing of the application for review, the respondent submitted that the Tribunal’s decision depended entirely on findings of fact.  That is so.  The finding of fact is peculiarly within the province of the Tribunal to determine.  I agree with the respondent that there is nothing in the Tribunal’s reasoning to suggest that it misunderstood or misapplied the applicable law.  Consequently, no case of jurisdictional error on the part of the Tribunal has either been argued or is apparent from examination of the matters before the Court. 

17. Accordingly, the application for review was dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated:             31 May 2005

The Applicant represented himself
Counsel for the Respondent:	LA Tsaknis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 May 2005
Date of Judgment:	31 May 2005