Applicant NASE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 259

FEDERAL COURT OF AUSTRALIA

Applicant NASE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 259 APPLICANT NASE OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1398 of 2002 BRANSON J 21 MARCH 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1398 of 2002

BETWEEN: APPLICANT NASE OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 21 MARCH 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal from the decision of the Federal Magistrate be dismissed. 2. The appellant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1398 of 2002

BETWEEN: APPLICANT NASE OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 21 MARCH 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

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.