SWPB v Minister for Immigration & Multicultural & Indigenous Affairs

6 I propose therefore to treat the application as an application for orders to quash the decision of the RRT of 18 June 2004 on the ground of jurisdictional error and for associated prerogative relief. The matter was argued on that basis.

the RRT'S decision 7 After referring to the legislation and to the definition of 'refugee' in the Convention, including cases concerning that concept, the RRT referred to the applicant's background and (briefly) to the reasons why he claimed to have a well-founded fear of persecution if he were to return to Vietnam. It is plain that the criteria for the grant of a protection visa require the decision-maker to be satisfied that the applicant had or has a well-founded fear of persecution for a Convention reason at the time of the Tribunal's decision: see e.g. Nand v Minister for Immigration & Multicultural Affairs [2002] FCA 1521 at [19]. 8 The RRT then considered at some length independent country information concerning the past and current state of affairs in Vietnam. It noted the collapse of the South Vietnamese government in 1975 and that there had then been significant mistreatment of a number of people who were associated with the former South Vietnamese government by the new Communist regime. It further noted that from 1986 there had been a policy of 'renovation' leading to a somewhat more open society, although there was still ongoing evidence of government intolerance of dissent and of human rights abuses. The Tribunal recited extensively from recent independent and apparently authoritative reports on the current situation in Vietnam. It then focused on what those sources said about the status and treatment of Vietnamese returnees who fled Vietnam illegally following the takeover of South Vietnam by the Communist regime. To some extent those sources were in conflict as to whether such returnees were free to return to Vietnam without risk of persecution, discrimination or harassment from the Vietnamese authorities. 9 The RRT then recited at some length the nature of the applicant's claims and his evidence concerning them. It is not necessary for present purposes to record that information in the same level of detail. The applicant claimed to fear persecution if he were to return to Vietnam for several reasons:

1. because his family had been persecuted as Catholics and land owners by the Communist government in North Vietnam, including both his maternal grandparents having been killed and four of his mother's brothers having disappeared, as a result of which the family relocated to the (then) non-Communist south in about 1954; 2. as a person of Chinese ethnicity, he was vulnerable because from 1979 there had been persecution of people in Vietnam by reason of that ethnicity; 3. because, during the Vietnam war, the applicant's family and his father in particular had assisted the Americans, including by the securing of information as an informant for the Americans whilst working as a driver for them, and on some occasions having assisted American soldiers to escape from Vietnam (an activity which the applicant himself said he had participated in, although at the time he was only four years old); 4. because he left Vietnam illegally to flee the Communist regime following the takeover of South Vietnam by that regime, and because he had applied for a protection visa in Australia; 5. by reason of his family's political activities after the family left Vietnam, including in particular the applicant's father being involved extensively and deeply in a Vietnamese freedom movement in the United States and having connections with a secret democratic movement operating in Vietnam; 6. by reason of the applicant's own activities in support of anti-government groups, including helping to recruit fighters for such a group whilst he has been in Australia. 10 The applicant has one brother remaining in Vietnam. The applicant told the RRT that in 1997, his brother was permitted to re-acquire the family's agricultural property in South Vietnam and to operate it. The applicant claimed that in 2000, after the Vietnamese became aware of steps being taken by the Australian authorities to have the applicant returned to Vietnam, that land had again been confiscated from his brother and he and his family had suffered further harassment and discrimination including that two of his children had been refused medical treatment and had died as a result.

11 The applicant had been interviewed by Vietnamese officials in about mid-2003, as part of the process of endeavouring to secure his return to Vietnam. He expressed concern that the official from Vietnam who interviewed him was an army intelligence officer, and that if he were to return to Vietnam he would be detained and tortured to get information about the activities of his father and brothers. 12 Some of that history the RRT accepted. It accepted that the applicant's family had suffered significantly after the Communist takeover of North Vietnam, and had as he claimed moved to South Vietnam. It accepted that his father had worked for the American forces as a truck driver during the Vietnamese war, and may have passed on information to the American authorities during his work in that capacity. It accepted that one of the applicant's brothers had served in the South Vietnamese military and, following the collapse of the South Vietnamese government, had been sent to a re-education camp by the Communist regime. It further accepted that the applicant's father and his family generally had opposed the Communist takeover of South Vietnam and in 1980 had left Vietnam illegally because of their fear of persecution because of those political activities. 13 Despite accepting those matters, the RRT concluded that the applicant did not at the time of its decision face a real chance of persecution for any Convention reason if he were to return to Vietnam. It was therefore not satisfied that he is a person to whom Australia has protection obligations under the Convention. As he did not satisfy the criterion set out in s 36(2) of the Act for a protection visa, s 65 dictated that the RRT affirmed the decision not to grant him a protection visa. 14 In reaching that conclusion, its focus was, appropriately, upon what might happen to the applicant if he were at the time of its decision (that is June 2004) to return to Vietnam. It clearly formed an adverse view as to the applicant's credit. It said: 'After considering all of the available evidence, I have reached the conclusion that Mr Tran is not a credible witness. I found much of his evidence at the hearing confused and unconvincing. On a number of occasions it was my impression that he was making up his evidence on the spot. Furthermore, as discussed in more detail below, I found a number of his claims inherently implausible. While some of the problems discussed below are relatively minor and considered in isolation would not have been sufficient to cause me to discount the bulk of his evidence, others are more serious and the overall pattern of his evidence is such that I find that he has not given a completely honest account of his background or his activities or his reasons for not wishing to return to Vietnam.' That view was reached after consideration of all the applicant's claims, both individually and collectively. The RRT explained why, in relation to each of the individual matters by reason of which he claimed to fear persecution, it did not accept his claim. 15 The RRT did not accept that the applicant's father worked undercover for the Americans or was involved in undercover anti-government activities between 1975 and 1980 to the extent the applicant claimed. Whilst acknowledging the applicant's youth, it regarded his description of those activities as neither clear nor convincing. It accepted that his father may have been a minor informant, as many others were, but did not accept his evidence beyond that. It also did not accept that the applicant's father or other members of his family were leading members of the freedom movement in the United States, or were involved in activities supporting freedom fighters in Vietnam. Again it regarded the applicant's evidence as not being coherent or convincing and affected by its overall impression that he tended to manufacture claims to support his application for a protection visa. The most favourable view it took of those claims was to accept that the applicant was involved in anti-communist groups in a minor way. On the independent country information which it accepted, from the Department of Foreign Affairs and Trade, it found such minor criticism of the Communist regime is not likely to cause the applicant problems if he returns to Vietnam so that there is no real chance that he would face serious harm on his return to Vietnam because of his involvement with anti-government groups in the United States or Australia. It did not accept that the applicant had been, or would undertake, serious or continued active dissent of the Communist regime in a way which might attract more significant adverse reaction from it. 16 The RRT also did not accept the difficulties which the applicant described his older brother in Vietnam as continuing to experience since 1980 and again since 2000. Because it accepted that his brother in Vietnam had been sentenced to re-education in 1977, it reasoned that he would have been unable to resume control of the family land in 1997 without proving his link to that family land. Consequently, it concluded that the Vietnamese authorities would have been aware of his identity at that time, and would not have learned of it simply by reason of inquiries made from Australia in an endeavour to have the applicant returned to Vietnam. Having rejected the extensive claims about the activities of the applicant's father between 1975 and 1980, the RRT also was not satisfied that those activities were discovered by the Vietnamese authorities in 2000 in conjunction with attempts to have the applicant returned to Vietnam, and so led to the mistreatment of the applicant's brother which he claimed. Its rejection of the first step meant that there was nothing to be exposed. It also rejected that claim because, on the applicant's material concerning earlier attempts to have him returned to Vietnam, the Vietnamese authorities in 2000 were unable to identify him as a Vietnamese citizen and so would not have related his application to his brother's living circumstances. It concluded that his evidence about the harassment and discrimination experienced by his brother after 2000 was concocted. 17 The RRT found that the claim the Vietnamese officials who interviewed the applicant in mid-2003 to explore or to consider or assess his claim to return to Vietnam as indicating or providing a basis for a well-founded fear of persecution if he were to return there as being 'far fetched and implausible'. Again, its conclusion was in part based upon its assessment of the way in which the applicant gave evidence about that experience. Moreover, as it had not accepted that the applicant had been involved in significant anti-Vietnamese activities since he had left Vietnam in 1980, any claim that the Vietnamese authorities would seek to spy on him or to elicit information from him was (the RRT said) far fetched. It also had regard to the fact that the Vietnamese officials who interviewed the applicant in mid-2003 did not come to Australia specifically to interview the applicant, but were part of a group of officials interviewing Vietnamese nationals who were to be returned to Vietnam for other reasons. The applicant in the course of his evidence to the Tribunal gave a detailed description of having that official's mobile telephone number and having received a threat from that person through that means. It regarded that evidence as 'unconvincing' and considered that the only plausible explanation for the applicant possessing that telephone number (if it was of the Vietnamese official) was to enable him to seek further assistance or information. 18 The RRT then addressed (after the reference earlier in its reasons to the independent information on the topic) any risk to returnees to Vietnam who left Vietnam illegally many years before, in particular in respect of the applicant. Illegal departure from Vietnam is a criminal offence, but the RRT noted that the consequences for most people who return are minor and do not involve the possibility of a prison term, other than for those involved in organising that illegal departure. That could not apply to the applicant who was only eight years old at the time he left Vietnam. It concluded that overall the evidence did not suggest that returnees to Vietnam who left illegally many years before are generally at risk of harm for a Convention reason merely because of their illegal departure or by reason of their application for a protection visa in Australia (or elsewhere overseas). It referred to information from the United Nations Human Rights Commission Report and from the Department of Foreign Affairs and Trade, to that effect. Having regard to the applicant's age at the time he left Vietnam, it did not consider that he would be of particular adverse interest to the Vietnamese authorities if he were now to return to Vietnam. It explained why it preferred the country information mentioned over some other information, a little earlier in time, as to the way in which returnees to Vietnam have been treated in the past. It specifically noted information which included that submitted to the RRT by the migration agent on behalf of the applicant. 19 Finally, the RRT dealt with the applicant's claim to be a refugee by reason of his Chinese ethnicity. It is not a claim which he expressly developed before the RRT. That had been otherwise expressed in documents. It rejected that claim because there was no suggestion that the applicant or other members of his family had ever faced serious problems in Vietnam because of their Chinese background, and because the independent country information did not suggest that there was such a possibility.

The grounds of review 20 The application for an extension of time had attached to it the proposed grounds of jurisdictional error. They were an alleged excess of jurisdiction; a constructive failure to exercise jurisdiction; and a failure to conclude that the applicant had a well-founded fear of persecution in his particular circumstances at the time of the RRT's decision. No grounds for those claims nor any basis for them was provided. 21 In his oral submissions, the applicant contended that there were six matters which demonstrated jurisdictional error on the part of the RRT. They were as follows: 1. the RRT was biased; 2. the RRT failed to consider all the claims put forward by the applicant; 3. the RRT failed to have regard to relevant considerations, and had regard to irrelevant considerations in reaching its conclusion; 4. the RRT made wrong decisions of fact; 5. the RRT's decision was wrong having regard to all the evidence, and because it failed to have regard to all the evidence. 6. the RRT failed to make proper inquiries which, it was required to do in fulfilment of its review function.

CONSIDERATION 22 If the RRT were biased in its consideration of the applicant's claim, as he alleges, that would clearly be a denial of procedural fairness which would amount to jurisdictional error: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. 23 However, in my view, there is no material which demonstrates or could demonstrate bias on the part of the RRT either from the way in which it went about the conduct of the review hearing, or by reason of its consideration of the applicant's claims. 24 The applicant first contended that the RRT had conducted a hearing in circumstances in which he had no real opportunity to participate. He claimed that the RRT member could not hear him during the hearing on 14 April 2004 and that he could not hear the RRT member. He produced a transcript of the hearing, prepared privately from a recording of the hearing in which, he contended, there are numerous references to what he said as being 'inaudible' to demonstrate the inadequacy of the hearing. I do not think that the transcript of the hearing which has been produced goes any way to demonstrate that the RRT did not endeavour to conduct a fair hearing or did not conduct a hearing in which the applicant was unable in reality to participate. I have read the transcript produced by the applicant carefully. It demonstrates a flow of questions and answers in a coherent manner. It is true that the transcriber on a significant number of occasions (65) over the space of 34 pages of transcript has recorded a word or words as 'inaudible'. That does not mean, or even tend to prove, that at the time the RRT member did not hear what was said. Indeed, in many instances it is quite clear from ensuing questions and answers that what was said (and which the transcriber could not pick up) was clearly understood by the RRT member and by the applicant. I have carefully read that transcript to determine whether there are passages in it which might demonstrate some loss of flow of evidence or some misunderstanding on the part of the RRT which could have provided a basis for the RRT taking an unfair view of what the applicant had said, or which might show the RRT picking him up on inconsistencies or expressions which might be regarded as inappropriate or unfair. I do not think there are any. 25 Consequently, notwithstanding those many inaudible words recorded in the private transcription of the RRT hearing, I think they are insignificant. They do not tend to prove that the RRT did not intend to conduct a hearing as required by the Act or did not do so. To the contrary, a reading of the transcript indicates that the RRT conducted the hearing in an apparently normal manner, that the discussions and questions and answers between the RRT and the applicant, and subsequently between the RRT and the applicant's migration adviser were clearly understood. It also indicates that the applicant had the opportunity to comment upon a number of matters which the RRT put to him, and which were apparently of concern to the RRT. 26 I note that the applicant made the assertion in the course of submissions that the tape recording of the hearing of the RRT had been altered. There is no material to support that. Again my careful reading of the RRT's transcript of the hearing does not provide any foundation for suspecting that that may have occurred. The flow of the questions and answers in the course of the hearing is an entirely natural and sequential one without apparent breaks, diversions, or interruptions in the sequence or process of questioning to different or inappropriate topics. 27 There were two other matters about which the applicant made contentions on this topic. The first was a specific matter as to how the RRT had treated his evidence about his father being a truck driver for the American forces in Vietnam and whether, in doing so, he was working under cover for the United States government. So far as I could determine, that complaint was as to how the RRT understood the applicant's evidence about the extent of the undercover role of his father. I do not think the RRT has misrepresented anything which the applicant said. Its view as to the significance of his evidence on the topic was formed in the manner described above. It is a matter upon which the RRT could reasonably have taken the view which it did. Its view does not tend to demonstrate bias on the part of the RRT. 28 More generally, the applicant contends that the way the RRT approached all the evidence shows that it had a closed mind to the applicant's claims. It is easy to understand from the applicant's point of view why that submission might be made. The RRT in its reasons has taken each of his claims in sequence, and has given reasons why it regards them as not established, or why it was not satisfied about them. However, its reasons must be used so as to enlighten its approach. They demonstrate that the RRT considered each of those matters, assessed their plausibility, assessed the significance or potential significance of the applicant's evidence against other independent information, and importantly assessed its reliability against the RRT's overall measure of the credibility of the applicant. The RRT was at pains to point out that it had formed an adverse view as to the credibility of the applicant, and so regarded certain claims he had made and certain evidence which he had put forward as having been made or put forward for the purpose of boosting fabricated claims rather than as direct evidence in support of those claims. Having formed what was obviously an unfavourable view as to the applicant's credibility, it was open to the RRT to adopt that approach to the evidence overall. The assessment of credibility is, of course, a matter peculiarly for a decision-maker, especially where it is based upon the impressions of the decision-maker as to how evidence is given and how questions are answered and general demeanour in the course of the examination. This is one such case. In my judgment, the fact that the RRT ultimately did not accept much of the applicant's claims for the reasons it gave does not demonstrate bias on its part. 29 It is important to note one further matter in relation to that contention. In the course of the hearing I pointed out to the applicant that, if he wished to make out a claim that the transcript of the hearing was incomplete either accidentally or deliberately, he would need to identify by evidence those parts of the transcript of the hearing which were not recorded in the tape which was provided to him and which was transcribed. I gave him the opportunity to consider the adducing of evidence to that effect. I also indicated to him that, if he wished to pursue that course, it would be wise to have any evidence he gave on the topic supported by the migration agent who was also present at the hearing. I offered the applicant the opportunity to seek to adjourn the hearing to enable him to assemble and present that evidence, as well as to present in a more coherent fashion the complaints which he made about other aspects of the claim concerning the RRT's approach. He declined to take up that opportunity. 30 It may be accepted that it would constitute jurisdictional error on the part of the Tribunal to fail to address a claim made by the applicant, clearly enough enunciated, upon which he asserted to have a well-founded fear of persecution for a Convention reason. However, the applicant's argument on this topic did not identify such a claim. In my view, the RRT addressed all of the claims which the applicant made to give rise to a well-founded fear of persecution for a Convention reason. The submission he put on this topic was simply that the RRT did not consider, or put into context, the fact that he had 'basic training' but in circumstances where he did not end up with a certificate. I do not think that evidence amounts to a claim by the applicant as to why he should have been determined by the RRT to be a refugee. It is simply a piece of information relevant to his background. Assuming in his favour that the RRT did not mention it, or overlooked it, in the course of considering his claims, that would not amount to jurisdictional error on its part. 31 The failure to have regard to relevant material, or the having regard to irrelevant material, can constitute jurisdictional error if the relevant legislative or regulatory provisions, properly construed, require a particular matter to be addressed or preclude a particular matter from being addressed: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. The applicant's contentions under this heading do not fall within those categories. He complained that the RRT wrongly treated the applicant's father as a truck driver incidentally or informally providing information to the United States authorities in Vietnam, as distinct from him working formally as an undercover operative for the United States government. He also contended that the RRT did not expressly mention his evidence that his brother, who the RRT accepted had been fighting against the North Vietnamese forces and subsequent to the collapse of the South Vietnamese government was imprisoned to undertake a re-education program, was a student and teacher, a topic about which his brother had provided documentation. The RRT addressed the evidence as to the status of the applicant's father and his brother. It made findings about it. The fact that it has not discussed in particular detail, or referred in particular detail, to aspects of the evidence about their status before reaching those findings does not mean that it did not have regard to that evidence. In any event, the applicant's complaints require the RRT to expressly refer to and discuss each particular piece of evidence concerning the status of those persons. The failure to do so does not amount to jurisdictional error for the reasons I have given. 32 The applicant's next complaint was that the RRT made a number of errors of fact in reaching its conclusions. He pointed out that the RRT had (allegedly erroneously) recorded that there was no reason why the applicant and his family would need to assist American soldiers to escape from Vietnam in 1975 because the US forces had a base at Vung Tao at the time. He asserted as a fact that that base had been vacated when the Paris Peace Treaty was signed in January 1973, so there was every reason then to assist those forces to escape in the way he described. He also criticised the RRT's conclusion that, given his age, his role in assisting the escape of American forces was a minimal one. He contended that the RRT had disregarded his evidence about that simply because of his age. I do not think the RRT committed jurisdictional error on the basis alleged. On the whole of the evidence, it made a decision as to the extent to which the applicant's version of events was correct. It is obvious that the applicant has a firm belief in the correctness of what he told the RRT. It is equally obvious that the RRT did not accept all of what he told it. That was a matter for the RRT. It does not demonstrate jurisdictional error on its part to point out that the RRT has taken a different view of the facts than that which the applicant put forward, or to point out that the RRT has not discussed in detail each and every piece of evidence that the applicant or others gave about those particular facts. The applicant also criticised the RRT because it had asked him, in the course of the hearing, why the family did not receive any formal recognition from the American forces for having assisted to the extent to which he gave evidence that they had assisted. He explained that the RRT question involved a non sequitur, given that the family remained in South Vietnam until about 1980. But the RRT did not, in its reasons, place any weight upon that aspect. It may be inferred that the issue having been raised during the course of the hearing, the RRT accepted what the applicant said about it and did not therefore place any weight upon what it at first might have expected to have occurred. 33 Finally, the applicant contended that the RRT had failed to conduct inquiries into his claims in the way in which, as a matter of law, it was required to do so. His contention was directed to the claim that the Vietnamese official who interviewed him in Australia in mid-2003 was a person in such authority as would be able to, and would, secure his detention and torture if he were to return to Vietnam. He claimed in submissions that that person was from the Department of Internal Affairs, Central Command in Hanoi, and was responsible for suppressing the freedom movement in Vietnam. He suggested in evidence to the RRT that that person had been somehow bribed by the respondent's department to come to Australia to give him a travel document, when that was unnecessary because routinely such documents would be issued by the Vietnamese embassy in Australia. It was not specifically that matter which he said should have been investigated, but a related matter. He claimed the RRT should have made further inquiries about the status and treatment of his brother in Vietnam. In the course of his submissions he described in more detail the harassment of his brother in Vietnam following the death of his son. He asserted that, in response to the RRT's observation about Vietnam's lack of knowledge of his identity in 2000, efforts had been made by his father many years before to change the family's name and personal details to avoid identification by the central government in Vietnam so that it was not surprising that he was not promptly accepted as a Vietnamese citizen. Then, he said, because in 2000 information had been provided to the Vietnamese authorities by the Australian authorities in an endeavour to have the applicant accepted back into Vietnam, the Vietnamese authorities had been able to make the connection with his and his family's past. It was from that time, the applicant explained, his brother had been harassed. 34 The applicant has not demonstrated jurisdictional error on the part of the RRT in not conducting further inquiries into whether the applicant's brother in Vietnam has been mistreated by the authorities since 2000 for a Convention reason. The RRT is not obliged to conduct all possible inquiries into a claim for a protection visa. There is no general duty upon the RRT to make all possible inquiries to identify materials which might support a visa applicant's case: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170; Luu v Renevier (1989) 91 ALR 39 at 49; Tickner v Bropho (1993) 40 FCR 183; Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 at [29]. This is not a case where there was some obvious and potentially decisive line of inquiry, readily undertaken, so that the RRT's failure to undertake it was so unreasonable that no reasonable decision-maker could have acted in that way: Soper v Australian Securities and Investments Commission (2004) 207 ALR 509; [2004] FCA 854. Whilst that formulation may not be comprehensive of the circumstances where a failure to undertake inquiries will expose jurisdictional error, this case is clearly not within that range. The RRT rejected the applicant's claims about the mistreatment of his brother, notwithstanding some documentary evidence in support of it, because it regarded the applicant's evidence as unreliable. The applicant did not adduce further material to show his brother had been mistreated, and if so why he had been mistreated, beyond the rejected evidence. It was in essence the applicant's function to adduce such material on the topic as he determined. In my view, the fact that the RRT did not conduct the inquiries now suggested did not involve jurisdictional error on its part. 35 Towards the end of his submissions, the applicant discursively then criticised the RRT for rejecting significant parts of his evidence, but not in a way that further advanced his contention of jurisdictional error. He claimed that it would be improper to return him to Vietnam when he fled Vietnam as a refugee in 1980, and since 2000 his remaining brother in Vietnam has been harassed. However, in my judgment the RRT asked itself the correct question. It has not been shown to have committed jurisdictional error in the way it addressed that question, or in its conduct of the review. Consequently, the application must be refused. The applicant should pay to the respondent costs of the application. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicant: The Applicant appeared in person

Solicitor for the Respondent: Australian Government Solicitor