FEDERAL COURT OF AUSTRALIA

SZEGG v Minister for Immigration and Multicultural Affairs

[2006] FCA 775

SZEGG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 577 OF 2005

STONE J

22 JUNE 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be joined as a respondent to this appeal.
2. The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from the judgment of Federal Magistrate Lloyd-Jones in which his Honour dismissed an application to review a decision of the Refugee Review Tribunal.  In a decision made on 30 July 2004 the Tribunal had affirmed a decision of a delegate of the first respondent refusing to grant the appellant a protection (Class XA) visa.  In accordance with the judgment of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, the Tribunal will be joined as the second respondent to the appeal.

Background

2                     The background to the appellant’s application for a protection visa was set out by the Tribunal and repeated by the Federal Magistrate.  The Tribunal’s account, which has not been challenged, is as follows:

‘The Applicant, who was born in Vietnam in 1971, was taken from his homeland in 1985 by an older sibling.  He was 14 at the time.  He spent almost four years in UNHCR-administered refugee camps in the Philippines.  He and his siblings were selected for resettlement under Australia’s refugee and humanitarian resettlement programme.  He and his sibling would not have been subjected at that time to any case-by-case determination of refugee status.  In those days, all Vietnamese asylum seekers were regarded en masse as prima facie refugees and offered by UNHCR for resettlement in third countries, in an arguably pragmatic exercise that ended in the late 1980s.  Under what came to be known as the Comprehensive Plan of Action (CPA), all asylum seekers who arrived in Hong Kong after 16 June 1988 and in other southeast Asian countries after 14 March 1989 were required to undergo case-by-case screening of their refugee claims.  Meanwhile multilateral and bilateral negotiations were expedited to set up an Orderly Migration Program (ODP) for Vietnamese citizens.  The ODP was aimed, in part, to discourage unauthorised departures in non-seaworthy boats, and to help bring the exodus from Vietnam into manageable order.  A few years passed before Vietnam’s national and provincial authorities were all working in harmony on processing applicants for orderly departure.

The Applicant arrived in Australia on 1 February 1989, “attached” to his older sibling’s travel document.  He was 17 at the time.  The Applicant did not become a citizen as a result of a number of complex circumstances, including alienation, lack of English, lack of parental guidance, and an unfortunate lapse into drug-related crime.

The Applicant has three criminal convictions.  He served his last sentence in 2001-2.  Those convictions are relevant to his present application, but only in relation to his protection prospects in Vietnam.’

3                     The Tribunal noted that when the appellant and his brother left Vietnam they did so illegally.  According to the Tribunal:

‘It is probable that they would have been punished by the authorities if caught in the attempt of departing, or if returned to Vietnam in the following four years, up until the time that the policy of Doi Moi was introduced, and the above-mentioned CPA took effect.’

4                     Despite this the appellant returned to Vietnam for visits, each of some months, in 1991, 1992 and 1994.  On each occasion the appellant was permitted to enter Vietnam and to leave again without hindrance.  He claimed that while in Vietnam he was monitored but told the Tribunal that he was not detained or interrogated; nor was he treated as a traitor.

5                     For reasons that are not necessary to explain here the appellant’s visa to reside in Australia lapsed by 12 December 1996 at the latest.  Apparently the Department of Immigration discovered that the appellant did not hold a valid visa by June 2002.  At that time the appellant was serving a prison sentence and therefore he was granted a bridging visa that expired on his release in November 2002.  The appellant was taken into custody and has been in detention at Villawood Immigration Detention Centre since that time.

6                     On 29 April 2004, the appellant lodged an application for a protection visa.  The delegate of the first respondent refused this on 6 May 2004 and the appellant sought review before the Tribunal.

The Tribunal’s Decision

7                     Before the Tribunal the appellant argued that the Minister’s decision ought to be set aside for two reasons.  First, the appellant submitted that his refugee status, recognised by Australia in 1989, ought to continue to be recognised unless the cessation provisions in the Convention applied to him.  Secondly, the appellant claimed to fear persecution on grounds independent of those relied on for his initial recognition as a refugee. 

8                     The latter, sur place, claims were that the appellant faced persecution in Vietnam for his perceived political opinion and membership of two social groups, namely convicted drug offenders and Vietnamese returnees.  More specifically, the appellant claimed to fear persecution as a result of his association with family members who had left Vietnam and remained in exile, and because on returning to Vietnam he would be perceived as an Australian spy.  The appellant also claimed that he would be required to pay a prohibitive bribe in order to obtain documents necessary to live in Vietnam, since the authorities demanded higher bribes from returnees from Western countries.  Finally the appellant claimed that he may face gaol in Vietnam because of the crimes he had committed (and been imprisoned for) in Australia. 

9                     The Tribunal accepted that the appellant is a national of Vietnam and a citizen of that country.  It also accepted, ‘for the purposes of this decision’, that the appellant was recognised as a refugee in or around 1989 on the basis that he was ‘a person who arrived in a relevant country of first asylum before 14 March 1989 who had fled the Socialist Republic of Vietnam’.

10                  The Tribunal held that the appellant remained a refugee (and thus entitled to Australian protection) unless one of the cessation clauses in the Refugee Convention, relevantly Article 1C(5), applied.  Article 1C(5) provides that the Convention will cease to apply to a person if:

‘(5)      He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;’

11                  Although the Tribunal noted that it had not examined the fine print of the appellant’s ‘Australian Refugee Settlement Program Application for Refugee Settlement’, which was a document that the appellant claimed contained a decision of the Department of Immigration and Ethnic Affairs certifying him as a refugee, it accepted that ‘some reference to Vietnam’s status as a “Communist” country was made’.  On this basis, the appellant argued that since the whole of Vietnam is still ruled by the same political party as in 1975, there had been no change of circumstances so as to invoke Article 1C(5). 

12                  In considering the application of Article 1C(5) the Tribunal made the following statement:

‘The Tribunal notes that the whole of Vietnam is still ruled by the same political party as has ruled it since 1975, but considers it superficial to assume that this should be the only factor to take into account in the present case, particularly since the Applicant, whilst still a national of Vietnam not only voluntarily returned to Vietnam in 1991, 1992 and 1994, but more importantly was permitted to re-enter Vietnam.  This in itself is very strong evidence of significant change of circumstances.  The Applicant would very probably have been punished had he returned to Vietnam prior to 1989, particularly if he were unable to argue that he had only been a child, at the time of his departure, who was led away by someone else.  He was not punished in 1991, 1992 and 1995 and, in the greatest contrast with what would have been the state of affairs back in 1985, when he was taken out of Vietnam, he was permitted unconditionally to travel abroad again in 1992, 1993 and 1995.

These facts cannot escape being taken into account.  They indicate very strongly that, at least as of the early 1990s, the “Communist” government did not have the same attitude to the Applicant, or to people of similar status, as it had towards them in 1985.  It may well have been persuaded to change its attitude based on pragmatism, but it changed them and those changes evidently still obtain [sic].  On this basis alone, the fact that the party in government in Vietnam retains the same name it had back in the 1970s and 1980s is somewhat superficial; there is evidence of a change in its policies and, at least in relation to the free movement of its citizens, there has been plenty of time to observe their consolidation.’

13                  While the Tribunal accepted that reforms in Vietnam since the appellant left had been largely economic and that this had had little significant effect on domestic political rights, it was of the view that it was not enough for a person to be eligible for protection under Articles 1A and 1C of the Convention that a country be governed by a ‘Communist Party’.  As such, the Tribunal found that Article 1C(5) applied to the appellant.  Further, the Tribunal found that Article 1C(1) applied, in that the appellant had on repeated occasions ‘voluntarily re-availed himself of the protection of the country of his nationality’.

14                  The Tribunal did not accept the appellant’s sur place claims.  In particular it did not accept that the appellant would be persecuted as a traitor for having left Vietnam illegally or for being related to others that had.  The Tribunal also referred to the appellant’s repeated visits to Vietnam in the 1990s and the fact that he was allowed to re-enter and depart Vietnam on three occasions.  In addition, the Tribunal found that the fact that, in contrast to his other visits, the appellant would arrive in Vietnam as a ‘deportee’ was not significant.  It found that there was no evidence to suggest that deportation would lead to Convention-related harm.  In relation to the claims relating to potential allegations or suspicion of spying the Tribunal stated:

‘The Tribunal does not accept that, upon or after return to Vietnam, the Applicant would be persecuted for reasons of being perceived to be a “spy.”  His evidence in this part of his case was particularly poor and he did not consistently adhere to positions in support of it, .…  The Tribunal finds that if the Vietnamese government feared that deportations of criminals to Vietnam were a possible cover for the planting of spies in that country, its continuing co-operation in deportation cases would not have been as unremarkable as it has evidently been.’

15                  The Tribunal also addressed whether the appellant was a member of a particular social group, for Refugees Convention purposes, so as to invoke Australia’s protection obligations.  The Tribunal stated:

‘The Tribunal accepts that when it becomes known that the Applicant is a “deportee” in Vietnam, society may form a view about him conforming with some general social attitude to persons who have been subject to criminal deportations back into Vietnam, and adopt somewhat negative assumptions about him.  However, the Tribunal can find no evidence to support the position that the authorities would persecute him for reasons of being a “deportee” or that elements of society at large would do with the active tacit approval of the authorities.’

16                  The Tribunal also rejected the appellant’s claims based on his membership of a particular social group, namely that of convicted drug offenders deported to Vietnam.  On the basis of the independent country information, the Tribunal did not accept that the appellant would be persecuted for this reason.  The Tribunal did accept that the appellant might be subjected to pecuniary demands but concluded that such demands would be based on a perception of the financial status of returnees to Vietnam rather than a Convention reason.  The Tribunal also held that there was no evidence to support the appellant’s claim that he might be exposed to further penal sanctions by reason of his drug convictions in Australia.

17                  Finally, the Tribunal found that ss 36(3) and (4) of the Migration Act 1958 (Cth) (‘the Act’) applied to the appellant’s case.  It found that the appellant did not have a well-founded fear of persecution in Vietnam any longer and had not taken all possible steps to avail himself of a right to enter and reside in Vietnam.  As such, according to the Tribunal, s 36(3) of the Act therefore applied, irrespective of the operation of the cessation clauses of the Convention.

Proceedings before the Federal Magistrate

18                  In an amended application for review to the Federal Magistrates Court, the appellant raised the following grounds:

‘1.       The Tribunal failed to consider relevant considerations in its determination that Article 1C(5) excluded the applicant’s claim.

Particulars

The applicant has had refugee status in Australia since 1989.  The Tribunal’s determination that circumstances in Vietnam had changed so fundamentally that Article 1C of the Refugee Convention applied, relied on evidence of economic reform.  The Tribunal failed to take into account the evidence that there has not been a fundamental improvement in political and civil rights.

2.                  The Tribunal misdirected itself as to the application of social group membership under the Convention and misunderstood the whole of the applicant’s claim on this basis.

Particulars

The applicant claimed membership of the social group of convicted drug offender returned to Vietnam.  The Tribunal found that the applicant’s actions could not result in membership of a social group.  Such determination overtly narrows the application of ‘social group’.

The Tribunal considered that the claim only referred to “double jeopardy”, that is the risk of the applicant being punished again for crimes committed in Australia for which he had already been punished.  The Tribunal thus failed to consider that the applicant may be falsely implicated in local crimes simply because he has a criminal record.

While the Tribunal did refer to the applicant’s claim concerning ‘state initiatives’ this appears to only have been in the context of its double jeopardy findings.

3.                  The Tribunal made a finding contrary to the evidence before it that may have affected the outcome of its decision.

Particulars

The Tribunal dismissed the ‘state initiative’ claim as unsupported yet an Amnesty report cited by the applicant’s adviser referred to “political pressure to convict and impose the death penalty.”’

19                  In relation to ground one, the Federal Magistrate followed the decision of Emmett J in NBGM v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 84 ALD 40 (‘NBGM’).  His Honour accepted that the Tribunal was required to determine whether, by the time of the Tribunal hearing, there had been a change of circumstances since the appellant left Vietnam such that he no longer had a well-founded fear of persecution should he return.  On this basis, the Federal Magistrate held that this ground should be rejected.

20                  Turning to the second ground of review, the Federal Magistrate rejected the second ground of review, holding that the Tribunal did not misunderstand the claim made. The Tribunal had relied on independent country information and found that there was no evidence to support the appellant’s contentions in this regard.  His Honour also found that the Tribunal’s findings were not contrary to the information before it and thus rejected the third ground of review. 

This appeal

21                  In an amended notice of appeal to this Court, the appellant raises the following grounds of appeal:

‘1.        The appellant appeals from the whole judgement of Federal Magistrate Lloyd-Jones of the Federal Magistrates Court given on the 24^th March 2005 at the Federal Magistrates Courts at Sydney.

2.         That the learned Magistrate erred in not making a finding that that [sic] the decision of the Refugee Review Tribunal (“the Tribunal”) was void for jurisdictional error.

3.         That the tribunal failed to apply the correct test, constructively failed to exercise its jurisdiction, and failed to address a central issue raised by the applicant in that it did not consider whether in light of the applicants “past criminal history” he had a well founded fear of persecution if he were to return to Vietnam by reason of his membership of a particular social group.

4.         The tribunal erred in failing to apply the correct test, constructively failed to exercise its jurisdiction, and breached the requirements of procedural fairness, in assuming that the applicant could have no well founded fear of persecution given evidence that other members of the appellants social group might be persecuted even if they were to live their lives as such discreetly or in secret.

5.         The tribunal erred in failing to apply the correct test and constructively failed to exercise its jurisdiction, in asking itself whether it was “satisfied that the applicant would be harmed” for the reasons he claimed if he returned to Vietnam.’

22                  Although the notice of appeal does not address the Tribunal’s consideration of Article 1C of the Refugees Convention, the appellant’s written submissions and the oral submissions made on his behalf plainly demonstrate that the main ground of appeal relied upon concerns the Tribunal’s application of the cessation clauses of the Refugees Convention. 

23                  At the hearing of the appeal, the Court noted that the judgment of Emmett J in NBGM was presently the subject of an appeal to a Full Court  which had reserved its decision.  On this basis, I indicated that I intended to delay delivering judgment in this matter until such time as the Full Court in NBGM had determined the appeal from Emmett J.  For reasons that are unnecessary to repeat here the Full Court in NBGM was reconstituted and the appeal was re-argued.  The Full Court handed down its decision in NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60(‘NBGM No 2’) on 12 May 2006.  On 7 June 2006 my associate notified the parties that I would consider any further written submissions in relation to the issues raised in NBGM No 2.  No further submissions have been received.

Article 1C(5) of the Refugees Convention

24                  The majority of the Full Court in NBGM No 2 at [25], [59] and [149], found that notwithstanding any prior recognition of an applicant’s refugee status in a temporary protection visa, a decision maker must be satisfied at the time of the application for a protection visa (including a permanent protection visa) that the applicant had a well-founded fear of persecution.  That is, regardless of any application of the cessation provisions in Article 1C(5) of the Convention, the Tribunal was required to be satisfied that, as at the date of its decision, the appellant had a well-founded fear of persecution for a Convention reason.  In NBGM No 2 the Minister had previously granted the applicant in question a temporary protection visa.  That is not the case here although I do not think that anything turns on this distinction.

25                  Although the Tribunal’s reasoning focussed on the cessation provisions it ultimately addressed the correct question, namely whether at the date of the Tribunal review, the appellant had a well-founded fear of persecution for a Convention reason.  Accordingly, the Federal Magistrate was correct to find that the Tribunal did not make a jurisdictional error in respect of this issue. 

Other grounds of appeal

26                  The appellant also contended that the Tribunal failed to address a ‘central issue’, that is whether because of the appellant’s ‘past criminal history’ he had a well-founded fear of persecution by reason of his membership of a particular social group.  As counsel for the first respondent contended, this ground was not raised before his Honour which raises the question whether it should be permitted to be raised on appeal.  It is not necessary for me to consider this question as the submission is patently without merit.  The Tribunal considered this claim, and other possible permutations of it, and concluded that it was not satisfied that the appellant had a well-founded fear of persecution by virtue of his previous drug convictions in Australia.  In my opinion, this allegation of error is not substantiated.

27                  Ground four of the amended notice of appeal appears to rely on the reasoning of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.  This ground is not supported by any particulars and the relevance, if any, was not demonstrated by the appellant and it is not apparent to me how this ground relates to the appellant’s case.  This ground should also be rejected.

28                  Finally, the appellant argues that the Tribunal erred in asking whether it was ‘satisfied that the Applicant would be harmed’.  As I understand this ground, it appears to contend that the Tribunal erred by failing to address the correct question, that is whether the appellant had a well-founded fear of persecution for a Convention reason if returned to Vietnam, not whether he would in fact suffer persecution.  In my view the Tribunal was aware of the question it had to consider in addressing the claims for protection.  To read into its reasons an error of the type contended by the appellant would subject the Tribunal’s reasons to unwarranted scrutiny.

Conclusion

29                  For the above reasons, the appeal must be dismissed with costs. 

Associate:

Dated:              22 June 2006