FEDERAL COURT OF AUSTRALIA VLAR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1855 VLAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 1167 OF 2004 NORTH J 29 NOVEMBER 2005 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 1167 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: VLAR APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: NORTH J DATE OF ORDER: 29 NOVEMBER 2005 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 1167 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: VLAR APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: NORTH J DATE: 29 NOVEMBER 2005 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Before the Court is an appeal from a decision of Federal Magistrate Connelly delivered on 3 September 2004. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the "Tribunal") dated 14 November 2002. The Tribunal had affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant the appellant a protection visa. The appeal is heard by a single Judge of the Court pursuant to a direction of the Chief Justice dated 22 December 2004. 2 The appellant, a citizen of Vietnam, claimed a fear persecution based on his support of the Vietnam National Party (VNP), a party opposed to the government of Vietnam. 3 The decision of the Tribunal sets out the facts, claims and evidence clearly and at length, so they need not be repeated. The argument on appeal was narrow. The appellant alleged the Tribunal made a jurisdictional error in the consideration of whether the appellant had suffered persecution by way of detention and ill-treatment. The appellant alleged the error was contained in the following passage: 85 The Tribunal notes the applicant's evidence at the hearing and accepts that the applicant, even if he had some interest in the VNP, was not a member of a political party or group in Vietnam, although he was active in social discussions critical of government and occasionally indiscreet as to whom he discussed such matters with. However, the Tribunal notes that even if the applicant felt that he had been personally discriminated against, his interest to the Vietnamese authorities was on his own evidence infrequent over the period of his adult life and never amounted to lengthy periods of incarceration or to ill-treatment. If he was detained in August 1986 when he was 15 for attempting to leave the country illegally, the Tribunal notes that he was released after five days and finds that this incident did not have any ongoing adverse consequences for him. Although detained by Vietnamese officials over being the leader in a protest on the sale of some land, of being a leader of a demonstration against paying electricity bills, of arguing about a newspaper report about his family, of discussing with his friends the high cost of memorials and of being detained because he distributed transcripts of President Clinton's speech, the Tribunal finds that he was released quickly because he was not perceived to be a political dissident. 86 Whilst the applicant may have objected to his country's regime and to what he believed to be discriminatory conduct against him, his treatment at the hands of officials cannot be considered equivalent to the treatment given to high profile opponents of the Vietnamese government. He has not suffered systematic or discriminatory persecution for his views or his actions as defined under the convention. The Tribunal finds therefore that the applicant was not someone with a high political profile in Vietnam or of serious adverse interest to the authorities and finds, based on his low level political involvement in Vietnam that he does not face a real chance of persecution if he returns to Vietnam. 4 The appellant contended the Tribunal failed to apply properly s 91R of the Migration Act 1958 (Cth) (the Act) which provides: 1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. 2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; Ms Costello, who appeared as counsel for the appellant, argued that the Tribunal failed to ask the question posed by s91R(1)(b) because it did not ask whether the recorded events of detention and ill treatment constituted serious harm to the person in the sense defined in s91R(2)(a). The Tribunal had failed to ask whether the events amounted to a threat to the liberty of the applicant. Ms Costello, contended the answer was obvious, because there had been a threat to the appellant's liberty. 5 This argument is misconceived. On a fair reading of the passage in question the Tribunal at [86] addressed the issue referred to in s 91R(1)(c). The Tribunal asked the question whether the persecution involved systematic and discriminatory conduct. In [85] it analysed the facts by reference to the frequency of the detention and the length of each period of incarceration. It then specifically referred to the s91R(1)(c) issue towards the end of [86]. The Tribunal was clearly aware of the requirements of s 91R(1). In discussing the law the Tribunal said at [6]: Sections 91R and 91S of the new Act now qualify some aspects of article 1A(2) for the purposes of the application of the Act and the regulations to a particular person. …[U]nder section 91R(1) of the Act persecution must involve serious harm to the applicant, 91R(1)(b) and systematic and discriminatory conduct, 91R(1)(c). The Tribunal then referred to s 91R(2) of the Act at [8]: The expression "serious harm" includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant's capacity to subsist. S91R(1)(a), (b) and (c) are cumulative pre-conditions to the establishment of persecution under Australian law. Once the Tribunal found the appellant did not satisfy the pre- condition required by s 91R(1)(c) there was no need for it to consider the pre-condition set out in s91R(1)(b). The Tribunal evaluated the evidence of the detention and treatment of the appellant for the purpose of determining whether there was a real risk in the future of systematic and discriminatory conduct within the meaning of s 91R(1)(c). It did not fall into jurisdictional error. 6 Ms Costello then argued the Tribunal's conclusion that the conduct suffered by the appellant was not systematic or discriminatory within the section was not sustainable. She referred to written submissions filed on behalf of the appellant which stated at [14]: It is difficult to see how it can be said that the detentions complained of do not amount to discriminatory and systematic conduct bearing in mind that only one detention may be enough to indicate systematic and discriminatory conduct. This is a quarrel with the fact finding of the Tribunal. It is therefore not an available complaint on an appeal from a decision which involved a judicial review. No jurisdictional error is established. 7 Ms Costello also argued the fact finding exercise undertaken by the Tribunal under s 91R(1)(c) was flawed because it adopted, "a relativist approach". The Tribunal at [86] determined that the conduct of the government was not systematic or discriminatory because it was: Not equivalent to the treatment given to high profile opponents of the Vietnamese government. This reference was part of the Tribunal's evaluative exercise in determining whether the detention and incarceration of the appellant was systematic and discriminatory in the context of the practices of the Vietnamese government. In that sense the comparison between the treatment of the appellant and other opponents of the government was a legitimate part of the inquiry into whether the conduct against the appellant had been discriminatory and systematic. Again no jurisdictional error is established. The appeal therefore must fail. 8 In concluding I observe that the terms of s 91R restrict the notion of persecution under the Convention for Australian Law in a way in which may limit the full scope of the concept referred to in the Convention. It is unlikely that the term persecution in the convention was intended to have the limited meaning prescribed by s 91R. However the legal consequences of the disconformity between the Convention and domestic law may be a matter for argument on another occasion. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 29 November 2005 Counsel for the Applicant: Ms Costello Solicitor for the Applicant: Wimal and Associates Counsel for the Respondent: Mr. Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 November 2005 Date of Judgment: 29 November 2005