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[2003] FCA 259
Federal Court of Australia
2003-03-21
Branson J
Original judgment source is linked above.
introduction 1 The appellant arrived in Australia on 2 August 1994 on a student visa. Although he enrolled in an English college on his arrival in Sydney, he attended the college two days a week for only a month. He claimed to have left the college because he had insufficient funds. After the expiry of his student visa the appellant remained in Australia and worked unlawfully. He was taken into immigration detention on 5 March 2002 and applied for a protection visa on 7 May 2002. A delegate of the respondent refused the application on 28 May 2002 and the appellant sought review by the Refugee Review Tribunal ('the Tribunal'). The Tribunal affirmed the delegate's decision on 22 July 2002. 2 The appellant sought review of the Tribunal's decision by the Court. On 6 September a judge of this Court ordered that the matter be transferred to the Federal Magistrates Court of Australia ('the Magistrates Court'). On 10 December 2002 the Magistrates Court ordered that the application be dismissed. The appellant now appeals to the Court against the decision of the Magistrates Court. 3 The appellant is a citizen of Vietnam. He claims that he faces persecution in Vietnam because he is considered to be from a reactionary, non-Communist family. He alleges that as a result of discrimination against him his selection to train as an air force pilot was blocked by local and district officials. He claims that after this occurred he denounced the district authorities to the central government and that he and his family were subsequently harassed by local officials. He alleges that he was unable to enter university or the military or police academies due to the discrimination against him. He was conscripted into the army in 1986 where he spent four years. The appellant claims that he deserted twice because he was treated unfairly. After leaving the army he was only able to obtain casual labouring employment. 4 The appellant claims that he bribed government officials to be able to leave Vietnam. He says that before he departed he and his travelling companions were approached by Vietnamese government security agents and asked to spy for the Vietnamese government while in Australia. He says that he agreed to do so in order to be allowed to leave Vietnam, but that he has not in fact spied on anyone. This, he says, will result in problems for him with the government if he returns to Vietnam. 5 The appellant also claims to have been politically active in Australia since his arrival here. He claims to have written letters, some under 'pen names' to the Australian government complaining about the Vietnamese government and to have sent protest letters directly to the government of Vietnam. 6 The appellant claims that he did not apply for a protection visa when he first arrived in Australia because he believed that if he lived in Australia for 10 years he would be entitled to stay in Australia permanently. He said that it was only after being taken into immigration detention that he became aware that the discrimination he alleges that he faced in Vietnam might entitle him to a protection visa. He also said that at the time he came to Australia he did not understand the danger he would face upon returning to Vietnam.
THE TRIBUNAL DECISION 7 The Tribunal found that the appellant's evidence contained many contradictions and inconsistencies, particularly in relation to his alleged politically unacceptable background and his stated reasons for coming to Australia. It did not accept that the appellant had been discriminated against because of his family background. It also found that any protest he may have made in 1988 regarding local government officials would not reflect on him adversely if he returned to Vietnam now, 14 years later. It found that the appellant's claim to have been asked to spy for the Vietnamese government was both implausible and inconsistent with his claim that he feared persecution in Vietnam because he was perceived to be opposed to the government. The Tribunal accepted that the appellant may have sent critical letters to the Vietnamese government but did not accept that these would have come to the attention of Vietnamese diplomatic and consular officials in Australia. The significance of this latter conclusion may be assumed to be that without the appellant's letters coming to the attention of Vietnamese authorities in Australia no report would be made to Hanoi connecting the appellant with the letters or with political activity in Australia. The Tribunal also found that the Vietnamese government has a limited capacity to observe and identify anti-government activities and, therefore, reporting of such activities, such as letter writing, is unlikely to be consistent or reliable. I interpolate that the appellant has told me today that he has recently learned in telephone conversations with his family in Vietnam that the Vietnamese authorities there have a copy of one of his protest letters. I explained to the appellant that this was a matter which he might raise with the Minister but that it did not assist him on his appeal from the decision of the Magistrate. 8 The Tribunal accepted that the appellant had never been involved with any political party. It was not satisfied that the applicant had any political profile that would bring him to the adverse attention of the Vietnamese authorities either in Australia or in Vietnam. It was not satisfied that he was wanted by the authorities in Vietnam or that members of his family in Vietnam had been regularly questioned by the authorities about him. 9 The Tribunal noted that the applicant did not apply for a protection visa until after he was taken into immigration detention. The Tribunal stated that it did not accept that, if the appellant's claims were true, he would have remained unaware of his potential entitlement to a protection visa until after he was taken into immigration detention. The Tribunal expressed the view that the appellant entered Australia with the intention of overstaying his student visa and then going into hiding and eventually applying for an amnesty. The Tribunal concluded that it was not satisfied that the appellant had ever suffered persecution in Vietnam for any convention related reason and that he does not have a well‑founded fear of persecution in Vietnam. THE MAGISTRATES COURT DECISION 10 The appellant sought review before the Magistrates Court. Before the Magistrate the appellant alleged that the Tribunal had denied him procedural fairness in that the Tribunal did not have a translation into English of a letter written in Vietnamese by the appellant to the Vietnamese community. However, the learned Magistrate found that there was no lack of procedural fairness as the Tribunal accepted that the appellant had sent letters critical of the Vietnamese government even though it did not have translations of those letters. Further, the Magistrate noted that the appellant was given opportunity to provide further evidence and further submissions in support of his case to the Tribunal after the Tribunal hearing and that he took that opportunity by presenting four further submissions all of which were considered by the Tribunal. The Magistrate was satisfied that the appellant was not denied procedural fairness. 11 The Magistrate noted that 'the major part of the applicant's case is a claim that the RRT was factually wrong'. He stated that where the appellant was claiming that the Tribunal's decision was erroneous on the facts this was not a matter which the Magistrates Court could review. The Magistrate also found that the appellant's case was a privative clause decision as set out by s 474 of the Migration Act 1958 (Cth) and that this limited the power of the Magistrates Court to review the decision. The decision of the Magistrate was given before the publication of the High Court of its judgment in S157 of 2002 v Commonwealth [2003] HCA 2 and for this reason the Magistrate considered the effect of s 474 in the light of the decision of the Full Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 228 ('NAAV'). The Magistrates Court dismissed the application for review.
conclusion 12 No significance on this appeal attaches to the fact that the Magistrate followed, as he was bound to do, the majority view of the Full Federal Court in NAAV, a view now disapproved by the majority of the High Court. The Tribunal, to put the matter simply, disbelieved the appellant as to large parts of his story. It was not satisfied that he genuinely fears persecution in Vietnam. 13 Before this Court today, the appellant has again sought review of the decision of the Tribunal on the merits. He has not been able to identify any error in the decision of the Tribunal whether going to the jurisdiction of the Tribunal or otherwise. Consequently, he has not been able to identify any error on the part of the Magistrate. 14 The appellant, as is mentioned in [7] above, has raised with the Court certain matters which he asserts he has learnt about in February 2003. I have sought to explain to the appellant that no matter that has arisen since the decision of the Magistrate can ground an appeal from the decision of the Magistrate. The appellant may, of course, if he thinks it appropriate to do so, draw fresh matters to the attention of the Minister. 15 The appeal from the decision of the learned Magistrate must be dismissed. There will be an order that the appellant pay the respondent's costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.
Counsel for the Applicant: The appellant appeared in person
Applicant NASE of 2002
Minister for Immigration & Multicultural & Indigenous Affairs