SZFXS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1446

FEDERAL COURT OF AUSTRALIA

SZFXS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1446 SZFXS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD1244 OF 2005

EMMETT J 7 SEPTEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1244 OF 2005

BETWEEN: SZFXS

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 7 SEPTEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the Minister's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1244 OF 2005

BETWEEN: SZFXS

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 7 SEPTEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant claims to be a national of Vietnam. He arrived in Australia on 24 August 1995 on a student visa that was valid until 14 July 1996. He made no attempt to seek asylum in Australia during the period of validity of his visa, or in the years following its expiry. In November 2000, the appellant was convicted of drug-related crimes and was sentenced to a period of imprisonment from November 2000 until early 2004. In January 2004, upon his release from penal servitude, the appellant was detained under the Migration Act 1958 (Cth) ('the Act'), on the basis that he was a non-citizen found guilty of serious criminal offences. It appears that steps were then taken for the deportation of the appellant, who, by that time, was an unlawful non-citizen. 2 However, on 11 October 2004, the appellant lodged an application for a protection (class XA) visa under the Act. On 19 October 2004, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa. On 21 October 2004, the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision. After a hearing before the Tribunal on 10 November 2004, the Tribunal affirmed the delegate's decision not to grant a protection visa on 31 January 2005. The appellant then commenced a proceeding in the Federal Magistrates Court of Australia, seeking constitutional writ relief under s 39B of the Judiciary Act 1903 (Cth). 3 The grounds upon which the appellant claimed relief in the Federal Magistrates Court were as follows: 'The RRT failed in error. Natural justice, practical unfairness, applicant was denied of [sic] procedural fairness.' On 14 July 2005, Raphael FM ordered that the proceeding be dismissed and that the appellant pay the Minister's costs. 4 On 26 July 2005, the appellant filed a notice of appeal to this Court from the orders of the Federal Magistrates Court. The grounds stated in the notice of appeal are as follows: 'The Federal Court failed to recognized the genuine refugee application.' 5 According to the Tribunal's reasons for its decision of 31 January 2005, the appellant claimed to fear persecution in Vietnam for reasons of race, religion and political opinion. He claimed that he is of Nung ethnicity, a Montagnard from a country dominated by ethnic Vietnamese, and that he is a Buddhist in a country that is secular and socialist. He also claimed that he is a political dissident. 6 The Tribunal gave extensive reasons for its conclusion. The Tribunal accepted that the appellant is a national of Vietnam. However, it did not accept that the appellant's family has or had an unfavourable political background, as he claimed or, at least, a background that affected his family significantly for a long time after the communist victory of 1975, as he claimed. 7 Further, the Tribunal did not accept that the appellant faced serious harm in the past, as he claimed, or would face harm in the reasonably foreseeable future, by reason of his Montagnard ethnic status, or for reasons of his being a Buddhist. The Tribunal referred to specific evidence before it, indicating the plight of members of a particular congregation, but concluded, on the evidence before it, that the appellant was not a member of that congregation and does not fear that he would be perceived to be one. 8 The Tribunal also referred to the appellant's stated reasons for leaving Vietnam, including some recognition in the appellant's mind of Australia being a freer country than Vietnam. However, the appellant placed emphasis on receiving education as his motivation for coming to Australia, rather than to seek refuge from a country that he had been lucky to escape. The Tribunal observed that the appellant did not behave, after arriving in Australia, like a person seeking protection from persecution for reasons of a perceived undesirable family background or his religion or his ethnicity or any other relevant factor. The Tribunal considered that independent country information reinforced its conclusion that Buddhists and Montagnards, and persons who are both, do not face a real chance of convention related persecution in Vietnam. 9 The Tribunal found that the appellant's evidence regarding alleged complicity in the smuggling of dissident books and cassettes was highly unreliable. The Tribunal considered that the weaknesses and contradictions in the appellant's claims were not overcome, even if the Tribunal gave the appellant the benefit of the doubt. The Tribunal accepted that the appellant bought a stereo unit in 1999 and shipped it back to Vietnam, and that the appellant may well have done other shopping in Australia and sent purchases back to Vietnam. However, the Tribunal saw no reason to accept that the appellant ever shipped a stereo unit to a particular identified man, as he claimed. Further, the Tribunal did not accept that, even if the appellant had done so, the shipment concealed dissident political material, as the appellant claimed. 10 The Tribunal accepted that the local and provincial authorities in Vietnam would be aware of the appellant's conviction on drug charges in Australia. The Tribunal accepted that police officers may have contacted the appellant's family in Vietnam in 2000, when he was imprisoned, and again in 2004, when his possible deportation was being considered. However, the Tribunal did not accept that such contacts were evidence that the authorities in Vietnam were taking a Convention related interest in the appellant. The Tribunal did not accept that those contacts included raids on houses of family members, or led to officers accusing the appellant, or suspecting him, of involvement in political activities abroad. The Tribunal considered such claims by the appellant to be fabrications, like claims about smuggling of books and cassettes. 11 The Tribunal accepted that the appellant would now be one of many people known to Vietnamese authorities as persons who have committed serious drug related crimes abroad. The Tribunal did not accept, however, that that meant that the appellant faced a real chance of being persecuted in Vietnam, whether or not it could be argued that, by reason of his criminal profile, he was a member of a particular social group within the meaning of that expression when used in the Refugees Convention. The Tribunal did not accept, on the material before it, that the appellant's profile as a drug offender in a country outside Vietnam would give rise to a real chance of his being subjected to Convention related persecution within Vietnam. 12 The Tribunal had regard to the very harsh anti-drug laws in Vietnam and the very harsh penalties for persons who commit drug related offences and accepted that the appellant would probably be the subject of some monitoring and sporadic contact by the authorities in the future. It also accepted that Vietnam is generally unco-operative with human rights monitors. However, the Tribunal was confident, on the material before it, that Vietnam does not re-punish or in any way persecute persons who have committed serious offences, such as drug related crimes, abroad. Having considered all of the evidence, the Tribunal did not accept that the appellant faced a real chance of Convention related persecution in Vietnam. It therefore concluded that he was not entitled to a protection visa. 13 In its reasons, the Tribunal recorded that the appellant attended a hearing before it on 10 November 2004 and that the hearing was conducted with the assistance of an interpreter in the Vietnamese-English medium. The reasons also record that the appellant was represented by an adviser who attended the hearing. 14 Notwithstanding the form of the application to the Federal Magistrates Court, Raphael FM entertained a submission by the appellant concerning inadequate interpretation in respect of his evidence before the Tribunal. His Honour recorded that the appellant asserted that he had asked the interpreter to repeat and clarify matters that he had said. His Honour assumed that the appellant was able to do that because of his reasonably good understanding of English. On the other hand, his Honour did not suggest that the appellant was not entitled to have an interpreter in the proceeding before the Federal Magistrates Court. However, his Honour took into account that the appellant was, at all times, represented before the Tribunal and much of the information that grounded his claims was produced in writing by his advisers. 15 Raphael FM considered that there was no suggestion, on his Honour's reading of the Tribunal's reasons, that the Tribunal's views as to the appellant's credibility arose out of things that were said during the hearing, as opposed to having been placed into writing by way of statements at an earlier time. The primary judge accepted that jurisdictional error might occur if the quality of interpreting is so poor that it prevents the appellant giving evidence and thus not satisfying the provisions of s 425 of the Act. However, there was no evidence before the Federal Magistrates Court concerning the proceeding before the Tribunal. In particular there was no evidence, such as tapes, indicating any difficulty with the interpretation. 16 When the matter was called on for hearing today, there was no appearance for the appellant. The appellant is presently in detention. Inquiries were made by the Minister. I was informed from the bar table that the appellant had been offered the opportunity of coming to Court to argue his appeal, but had declined to do so for reasons that are not apparent. The Court has received no indication that the appellant is unable to attend court. The Minister asked that the Court proceed to hear the appeal in the absence of the appellant. 17 The appellant did not provide any written submissions to the Court. However, the written submissions dated 14 July 2005 made to the Federal Magistrates Court were available to the Court and counsel for the Minister addressed the Court on those submissions. 18 The submissions run to some 74 paragraphs and cover nearly 20 pages. Much of the submissions simply repeat material in the Tribunal's reasons. In essence, the submissions raise as a ground of review jurisdictional error on the part of the Tribunal by failing to afford the appellant procedural fairness. The basis upon which it is said that the Tribunal failed to afford the appellant procedural fairness is that the interpreter that was provided to the appellant was from North Vietnam, whereas the appellant was born in South Vietnam. The appellant asserted that, because of the dialect differentials, he was unable to communicate as effectively as he would be if the interpretation was by a South Vietnamese. The submissions asserted that that would be clear from listening to the tapes of the proceeding before the Tribunal. 19 The appellant then asserted that the effect of not being able to communicate effectively with the Tribunal was that he was unable to articulate his case as effectively as he could have, if he were able to appreciate fully the questions that were put to him by the Tribunal. He asserted that there are significant differences between North Vietnamese and South Vietnamese dialects and that the effect of having an interpreter from North Vietnam was that he was unable to corroborate, as well as he might otherwise have been able, his version of his well-founded fears. 20 The submissions then asserted that the appellant had sought to obtain a copy of the tapes from the Tribunal, but that, at the date of the submissions the Tribunal had not acknowledged his request. The submissions asserted that the appellant would be seeking the leave of the Federal Magistrates Court to apply for an adjournment of 'these proceedings' to allow the appellant the opportunity to study the tapes and have them transcribed. 21 In response to the assertions to which I have just referred, the Minister produced a written acknowledgment by the appellant of receipt of tapes of the Tribunal hearing. The acknowledgment is dated 10 November 2004. In those circumstances there could be no substance in any complaint concerning refusal of an adjournment of the hearing. It is apparent that neither the application to the Federal Magistrates Court nor the notice of appeal to this Court disclose any grounds upon which relief under s 39B of the Judiciary Act 1903 (Cth) could be granted to the appellant. The appeal appears to be completely without merit or substance. It follows that the appeal should be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.