Duong v Minister for Immigration and Multicultural Affairs

INTRODUCTION 1 This is an application pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act") for a review of the decision of the Refugee Review Tribunal ("the Tribunal") to affirm a decision of a delegate of the respondent not to grant to Mr Duong a protection visa. For Mr Duong to be entitled to be granted a protection visa, the Tribunal was required to be satisfied that he was a person to whom Australia had protection obligation under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together "the Convention") (s 36(2) of the Act and cl 866.221 of Schedule 2 of the Migration Regulations 1994). For present purposes Australia will have protection obligations to Mr Duong under the Convention if he is a person who: "owing to a 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." (Art 1A(2) of the Convention) 2 Mr Duong's country of nationality is Vietnam. He claims to fear persecution in Vietnam by reason of his political beliefs. The story told by Mr Duong in support of his claimed fear has not remained entirely consistent. By his written application for a protection visa dated 5 April 1998 he claimed: "While I was in living in Vietnam I was the leader of an anti-communist group which we held meeting every week on different places, mostly to the houses of our members. It was illegal and very dangerous to us but because we believed in democracy we gambled our lives and our family. In one of our meetings in September 1995 the security police surrounded the house where we were discussing things with about 20 members present. Eight of our members were arrested and the rest including myself were able to escape. I did not go home after that, instead hid in Hanoi where I seek help from relatives here in Australia to help for my visa to come here. I never been back since then." 3 In a letter to the Tribunal dated 8 October 1998 he claimed that he was in prison from 1975 to 1989 and that on his release he had no opportunities to make a living due to his records. This letter states: "Thus, in 1990 I decided to elope Vietnam in search of freedom from another land. Unfortunately my attempt was unsuccessful and I was once again captured and sent to prison until 1993. In 1995, I had asked for assistance from my relatives in Australia to apply for myself to travel to Australia for a holiday. When I arrived in Australia on 9th November, 1995, it was a tremendous change to what I had endured in Vietnam. After seeing such freedom and comfort in Australia, I was very afraid to return to Vietnam after my holiday period had expired. Thus, I had no other option than to reside in Australia illegally. This was due to the fact that if I had returned to Vietnam, my freedom and rights as a human being would once again be deprived." 4 The written reasons for the decisions of the Tribunal reveal that before it Mr Duong framed his story somewhat differently. He said that he had been conscripted in 1964 and for most of his time in the Army he had worked as a cook. Following the liberation of the south he had returned to his home town and had attended a re-education centre on a daily basis for two to three months. He said that he attempted to escape from Vietnam by boat in 1989 but was arrested and detained for three months. He said that he attempted to escape again in 1993 and was again detained but released later the same year. On his release he said he joined a secret organisation which aimed "to return Vietnam to the old regime". A meeting of the organisation in late 1993 was surrounded by police but he had managed to escape and went into hiding in Saigon. He sought the help of an agent who had assisted him in obtaining a passport and sponsorship by his uncle to travel to Australia. 5 The Tribunal accepted that the applicant attempted to escape from Vietnam on two occasions and was detained for short periods of time when caught. It was not satisfied that the escape attempts would be held against him today. 6 The Tribunal also accepted that the applicant had, in around 1993, joined a secret organisation which aimed "to return Vietnam to the old regime". It found, however, that he was not arrested for joining this organisation and was subsequently able to obtain a passport and leave Vietnam. The Tribunal was not satisfied that the applicant was sought by the Vietnamese authorities at that time or that he would be of interest to them should he return. The Tribunal noted that the independent evidence indicated that it is unlikely that he would have been able to acquire a passport if he was of interest to the authorities and that even if he had acquired one - "'under the table' he would not have been able to obtain an exit visa or to leave through an airport, as his passport indicates he has. Even if the applicant was at one time of interest to the authorities because of his support for the former government of South Vietnam, or his membership of a group opposed to the present government, having regard to the advice the Tribunal has received from the Department of Foreign Affairs and Trade I cannot be satisfied that he would still be of interest today." 7 The only ground of review relied on by the applicant is that identified in s 476(1)(a) of the Act, namely that a procedure required by the Act to be observed in connection with the making of a decision was not observed. The procedure relied upon is that specified by s 430(1) of the Act. Section 430(1) provides: "Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 8 The Full Court of this court has recently given consideration to the requirements of s 430(1) in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845. Black CJ, Sundberg, Katz and Hely JJ (Kiefel J dissenting) at para 43 held that the preparation of a statement of reasons is a procedure that the Act requires to be observed in connection with the making of a decision of the Tribunal not to grant a protection visa. 9 Their Honours concluded at para 43 that if the statement does not comply with s 430(1) because it fails to set out findings on a question of fact which a court holds to be material then a decision may be set aside under s 476(1)(a) for want of procedural compliance. 10 Their Honours observe at para 44 that: "Section 430 does not impose any obligation on the RRT to come to a correct decision or to prepare a statement disclosing a satisfactory process of reasoning." and at paras 56 to 57 their Honours state: "If a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as a basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with. … A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists." 11 It was urged on behalf of the applicant that his claim that he had managed to escape arrest and was in hiding from 1993 to 1995 was objectively material to the Tribunal's finding that he was not being sought by the authorities. I am not satisfied, to use the words of the majority of the Full Court in Singh's case, that the decision of the Tribunal turned upon whether the applicant was in hiding from 1993 to 1995. 12 The Tribunal accepted that the applicant was not arrested in 1993. In addition the Tribunal found that the attitude of the Vietnamese Government to supporters of the former regime has changed in recent years so that, even if the applicant was at one time of interest to the authorities because of his support for the old regime, it was not satisfied that he would still be of interest today. The Tribunal further found that it was unlikely that the applicant would have been able to acquire a passport in 1995 if he were of interest to the authorities and that, if he had, he would not have been able to obtain an exit visa or leave through an airport as his passport indicated that he did. 13 In view of the approach taken by the Tribunal, a finding by the Tribunal on whether the applicant escaped arrest because he was in hiding from 1993 to 1995 was not a finding on a material question of fact within the meaning of s 430(1)(c). The decision of the Tribunal in the practical circumstances of this case did not turn on whether the applicant had managed to escape arrest in 1993 and was in hiding from 1993 to 1995. The decision of the Tribunal turned on its finding that the applicant was not of interest to the Vietnamese authorities either when he left the country or now. 14 Mr Zipser for the applicant sought to elevate the significance of the applicant's evidence concerning his conduct between 1993 and 1995 by questioning the strength of the evidence behind the Tribunal's reliance on the evidence that the applicant left Vietnam from an airport with a passport and exit visa in his own name. As the majority of the Full Court pointed out in Singh's case at para 44, s 430 does not impose any obligation on the RRT to come to a correct decision or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached. 15 The applicant also contended that s 430(1)(c) required the Tribunal to make a finding concerning the assertion of a witness called by the applicant that the applicant's family had recently told her that the Vietnamese police are looking for the applicant. The Tribunal expressly found that: "[The applicant] does not have a political profile which would bring him to the adverse attention of the authorities in the future. The chance of his being persecuted for reason of his political opinion, or for any convention reason, is remote." 16 It must now be accepted that s 430(1)(c) does not require the Tribunal to give reasons for rejecting or attaching no weight to evidence which tends to undermine its findings (Singh's case, para 46). Nor does the paragraph require the Tribunal to deal with all pieces of conflicting evidence relating to a material fact. 17 A sensible reading of the Tribunal's reasons suggest that the Tribunal did not accept that the police in Vietnam are presently looking for the applicant. However, even if this reading does not reflect the approach taken by the Tribunal, it nonetheless remains that the relevant material finding of the Tribunal is that the applicant is not of interest to the Vietnamese authorities for any Convention reason. 18 The Tribunal's reasons for decision set out the factual findings made by it which support the process of reasoning which it employed. As the majority of the Full Court observed in Singh's case, the requirements of s 430(1)(c) and (d) are not to be translated into a requirement that all pieces of conflicting evidence relating to material facts be dealt with. 19 The decision of the Tribunal must be affirmed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.