Tho Xuan Doan v. Minister for Immigration Local Government and Ethnic Affairs & K. Boland (Refugee Review Tribunal) [1997] 222 FCA

MIGRATION - application for review of Refugee Review Tribunal decision - whether applicant has a genuine fear of persecution - whether error of law - whether there was no evidence to justify the decision

Migration Reform Act 1992 s 33

Migration Act 1958 ss 412, 414(1), 415(1), (2)(d), 476(1)(e), (g), 476(4)(a) and (b)

Migration Regulations reg 866.22

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455

VG No 659 of 1995

THO XUAN DOAN v THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS and K. BOLAND (REFUGEE REVIEW TRIBUNAL)

Olney J

Melbourne

9 April 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY

GENERAL DIVISION No VG 659 of 1995

BETWEEN:

THO XUAN DOAN Applicant

-and-

THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS First Respondent

-and-

K. BOLAND (REFUGEE REVIEW TRIBUNAL) Second Respondent

Coram: Olney J

Place: Melbourne

Date: 9 April 1997

MINUTE OF ORDER

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondents' costs including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY

GENERAL DIVISION No VG 659 of 1995

BETWEEN:

THO XUAN DOAN Applicant

-and-

THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS First Respondent

-and-

K. BOLAND (REFUGEE REVIEW TRIBUNAL) Second Respondent

Coram: Olney J

Place: Melbourne

Date: 9 April 1997

REASONS FOR JUDGMENT

BACKGROUND

The applicant is a Vietnamese citizen born on 2 February 1952. She entered Australia on 29 December 1992 as a visitor holding a temporary entry visa. On 28 June 1993 she sought protection as a refugee. On 27 April 1994 the Minister's delegate refused her protection as a refugee and on 20 May 1994 she made application to the Refugee Review Tribunal (the Tribunal) to review to delegate's decision. The review application was heard by the Tribunal (constituted by the second respondent) on 2 May 1995 and on 19 June 1995 the Tribunal determined that the applicant is not a refugee and is not entitled to a protection visa. On 14 July 1995 the present application to review the Tribunal's decision was filed. The application was heard on 3 April 1997.

THE APPLICATION

The application filed on 14 July 1995 seeks a review of the Tribunal's decision under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and Part 4B of the Migration Reform Act 1992 . Seven grounds are pleaded and particularised in the application.

On 27 September 1996 the respondents filed notice of objection to the competence of the application asserting that the Court has no jurisdiction to try an application for an order of review under the ADJR Act and the Judiciary Act 1903 . The grounds for the objection are stated thus:

The decision identified at paragraph A of the application is a "judicially reviewable decision" within the meaning given to that expression by Section 475 of the Migration Act 1958 . Section 485 of the Migration Act 1958 provides for the Federal Court to review such decisions under Part 8 of the Migration Act 1958 and excludes the Court's jurisdiction to review under the Administrative Decisions (Judicial Review) Act 1977 and Section 39B of the Judiciary Act 1903 .

Whilst this statement is an accurate expression of the relevant statutory provisions it should be observed that the application does not seek the exercise of jurisdiction under the Judiciary Act 1903 and that s 33 of the Migration Reform Act 1992 inserted by way of amendment to the Migration Act 1958 (the Migration Act 1992 ) a new Part 4B which has since been renumbered as Part 8. Although the grounds on which the applicant initially sought review included grounds which are not presently available under Part 8, some of the grounds as originally pleaded are, in a modified form, available for that purpose.

On 14 March 1997 the applicant filed a document entitled "Amended Application". Leave to amend was neither sought nor granted. The new document purported to be an application to review under Part 4B of the Migration Reform Act and included only three grounds, namely that the decision involved an error of law, that there was no evidence to justify the making of the decision and that the decision was an improper exercise of power in that it was reached pursuant to a rule of policy. Each of these grounds had been raised in the initial application although the particulars pleaded in the document filed on 14 March 1997 are not the same as those originally pleaded. Counsel for the respondents objected to the amendment of the application and after hearing argument I refused leave to amend. As it happened, the applicant's counsel was content to proceed on the basis of such grounds raised in the original application as are available under Part 8 of the Migration Act and to rely upon the particulars to those grounds as originally pleaded. Indeed, counsel indicated that one ground, namely the alleged improper exercise of power, would not be pressed and that not all of the particulars to the ground alleging an error of law would be argued. In the end the following grounds were relied upon by the applicant:

2. The decision involved an error of law in that:

(a) the respondent misconstrued the phrase "well-founded fear of persecution" by, inter alia:

(i) ...

(ii) ...

(iii) failing to link the past experiences of the applicant with her fear of continuing persecution in future, and

(iv) failing to relate the applicant's fear of persecution to her being actively involved in community, religious and political activities both in Vietnam and Australia.

7. There was no evidence to justify the making of the decision in that there was no evidence by which the respondent could be reasonably satisfied that, inter alia:

(a) the applicant had not undergone the experiences of persecution of herself and her family to which she had attested;

(b) the applicant would not be persecuted once back in Vietnam; and

(c) socio-political conditions in modern-day Vietnam make the applicant's fear of persecution unfounded.

The relevant provisions of the Migration Act dealing with these grounds are contained in s 476 in these terms:

s476(1) ... application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

...

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision ...

...

(g) that there was no evidence or other material to justify the making of the decision.

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

THE TRIBUNAL'S REASONS FOR DECISION

a) The legal framework

In its reasons for decision the Tribunal initially addressed the legal issues raised by the application. First, it was stated that it was satisfied that the application for review had been validly made and that the Tribunal had jurisdiction to review the decision in question. It then addressed the elements of the definition of refugee in these terms:

The central issue for the Tribunal to decide is whether or not the applicant is a "refugee" under the 1951 Convention and 1967 Protocol relating to the status of refugees. If the applicant is a refugee she is a person to whom Australia has protection obligations.

Article 1A(2) of the Refugees Convention defines a refugee as "any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail herself of the protection of that country".

The Tribunal then went on to refer to elements of the definition which it considered required elaboration in the context of the instant case. Reference was made to three aspects of the definition under the headings "well-founded fear", "persecution" and "convention reasons".

The Tribunal referred to para 38 of the Handbook on Procedures and Criteria for Determining Refugee Status (1992) published by the United Nations High Commissioner for Refugees (the Handbook) and concluded that not only must an applicant be in fear, but also, there must exist circumstances which objectively support that state of mind. Reference was also made to the decision of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) in which it was held that a fear would be well- founded if there was a real chance that an applicant would suffer persecution if he or she returned to his or her country of nationality. Referring further to the decision in Chan the Tribunal said:

A "real chance" was said to be one which was "substantial, as distinct from a remote chance" (Mason CJ at p 389; Toohey J at p 407 and see also Dawson and McHugh JJ at p 398 and p 429).

Under the general heading of "persecution" the Tribunal again referred to various dicta in Chan notably to Mason CJ (at p 388) and McHugh J (at p 430) and concluded:

Whether discrimination will amount to persecution is specifically addressed in paragraph 54 of the Handbook where it is said that it "would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities" (emphasis added).

In dealing with the question of "convention reasons" the Tribunal said:

The applicant must fear persecution for a Convention reason, viz. for reasons of "race, religion, nationality, membership of a particular social group or political opinion". If the harm suffered is related to some other reason, such as economic conditions, Convention protection is not available.

The only other matter of law discussed by the Tribunal had to do with the relevant date for determination of refugee status. After referring again to Chan and a single judge decision in Lek v Minister (1993) 117 ALR 455 the Tribunal observed:

The point may be restated by adapting the words of Mason CJ in Chan (at p 391) and saying that the question of refugee status is one for consideration at the time when a determination is required, but that, while this remains so, "in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left his country of nationality".

b) The Applicant's Claims

The applicant's claim for refugee status is based upon a fear of persecution by reason of religion and political opinion. In her evidence before the Tribunal she said, inter alia, that she is a member of the Phap Bao Buddhist movement which is also known as the United Vietnamese Buddhist Church (UVBC) which was banned in 1975. Since 1975 she has been an active member campaigning for freedom of religion and human rights. She does not believe that there is true freedom of religion in Vietnam. She has not been prevented from practising her religion, but it is under surveillance of the authorities. The authorities have people acting as monks who keep an eye on worshippers at the pagoda.

In 1988 she resigned from her job. The reason for her resignation was that only members of the Communist Party, of which she is not a member, were being promoted. After she left her job, she spent more time involved in religious activities.

The Tribunal observed that the applicant had given different versions of her involvement in the UVBC.

One version of the facts is that given in her evidence to the Tribunal when she said she joined the movement in 1971 and was an ordinary member without an official title. She undertook various activities at the request of the monks. She believes that the authorities allowed her to go overseas because anti-government activity in her church did not start until after her departure. She was not of interest to the authorities until after the immolation in Hue in May 1993. She then came to the attention of the authorities in Vietnam because of her previous involvement in the movement and her activity since arrival in Australia. After the immolation all members of the movement were interrogated and their homes searched by the police. Her husband was interrogated many times because of her involvement. Her home and belongings were searched by the police. The applicant was sent telegrams by a monk and her husband dated 23 June 1993 and 24 June 1993 respectively advising her not to return to Vietnam due to the situation there at that time.

A second version of the applicant's case was set out in a submission attached to her application to the Tribunal where she claimed that the Phap Bao Buddhist movement was formed by her and some student and Buddhist leaders in 1971. After a long involvement in the movement's fight for religious freedom, she became one of its leaders. She had become well known by the police and Communist authorities in Vietnam. She would have not been allowed to leave if she had not tried to bribe them. As a leader of the movement she illegally organised a 100 day commemoration for a respected Buddhist leader. Although the self immolation took place 4 months after her departure, she with other leaders had discussed future activities including the self immolation.

Yet another version is contained in the applicant's submission attached to her application for refugee status in which she stated that she joined the Phap Bao Buddhist movement in 1967 when she was a student. Since then she has been actively involved in activities organised by the movement to demand the freedom of religion and human rights. These activities included protests against the government. Just prior to her departure for Australia she was directed by the movement's leaders to participate in some secret anti-government activities to demand freedom of religion and human rights in Hue and Ho Chi Minh City.

The applicant also gave evidence concerning her activities in Australia. She said she has been actively involved in community and political activities and participated in a public protest against the current regime in Vietnam on the occasion of the Vietnamese Prime Minister's visit to Australia. She has attended some meetings organised by the Vietnamese War Veterans Association regarding the repressive manner of the Vietnamese government against religion and during these meetings has spoken about violation of human rights and freedom of religion. She is concerned that, because she has expressed her opposition to the Vietnamese government in these forums, the Australian Embassy will contact the authorities in Vietnam and she will be punished if she returns. According to the Vietnamese Constitution there is freedom of religion but in reality it does not exist because the authorities do not respect the Constitution.

The applicant said that she has actively practised her religion in Australia and has spoken to priests in Australia about the lack of freedom to practise religion in Vietnam. She is concerned that the heightened awareness of the UVBC movement following the self- immolation in mid-1993 and subsequent investigation of all members will have led to the disclosure of her own involvement and her criticism in Australia of the lack of freedom of religion and human rights abuses in Vietnam. Some Vietnamese boat people who have voluntarily returned to Vietnam have been arrested by the authorities.

c) Findings

The Tribunal prefaced its findings with the following observations:

As discussed, in order to satisfy the Convention definition of a refugee, the applicant must have a well-founded fear of persecution. She must have a subjective fear, and that fear must be well-founded when considered on an objective basis. There must be a real chance that the applicant will be persecuted for a Convention reason if she returns to Vietnam. The Tribunal assumes that the applicant, being outside her country of origin, has a subjective fear of persecution should she return to Vietnam.

Violations of fundamental human rights by the Vietnamese government following the fall of Saigon in 1975 and continuing for several years thereafter have been well documented by various international government and non-government agencies. It appears broadly true also, however, that more recent developments in that country (such as the policy of doi moi or "renovation" adopted by the Sixth Party Congress in December 1986 and reform of the Vietnamese Constitution in April 1992) have brought growing economic and social liberalisation. Vietnam is not a liberal and open society and its citizens exist under a government which seeks intrusively to control the attitudes and behaviour of the general populace (See U.S. Country Reports on Human Practices for 1994, p 709).

Within this general context the Tribunal assesses the applicant's claims, focusing on the period from the time of departure from Vietnam in December 1992 to the present.

The applicant's claims relate to fear of persecution on Convention grounds for reason of religion and an imputed political profile.

In approaching its consideration of the question of religion and imputed political profile the Tribunal stated succinctly the applicant's case namely that she is an active member of the UVBC and will be punished for her previous role in the movement in Vietnam as well as for her activity in Australia. The Tribunal then made the following statement as to its findings of primary fact:

The Tribunal finds that the government in Vietnam imposes controls on different religious leaders, both Christian and Buddhist, in the past and continues to do so. The Tribunal accepts that the UVBC has been subject to greater control and scrutiny than the more general Buddhist Church organisation in Vietnam. However, the Tribunal finds that the situation for religious observers in Vietnam is easing and that in any case, an 'ordinary' worshipper, as opposed to a priest, Buddhist monk, or Christian or Buddhist nun, may practise her/his religion in Vietnam without incurring a real chance of persecution.

The reasons then proceed to identify and quote from various sources of information to which the Tribunal accorded weight in reaching these findings.

The Tribunal then turned to address the question of whether in the circumstances as found there is a real chance that the applicant will suffer persecution because of her religious belief if she were now to return to Vietnam. After analysing the applicant's evidence as to her role in the UVBC, which the Tribunal described as "contradictory in some areas", the Tribunal declined to accept that the applicant is a leader or person of significance in an unauthorised congregation either in Vietnam or within the movement in Australia and in the light of this and the other information previously referred to the Tribunal found that there is no real chance of the applicant being subjected to persecution on the grounds of her religion or an imputed political profile should she return to Vietnam.

THE CASE FOR REVIEW

a) Error of Law

The scope to review a decision of the Tribunal on the ground provided for in s 476(1)(e) of the Migration Act is very limited. Not every error of law will attract the provisions of the section. Rather, it is necessary that the applicant demonstrate either that the Tribunal has incorrectly interpreted the applicable law or has incorrectly applied the law to the facts as found.

The applicable law in this case is the law defining the term refugee for the purposes of the Migration Act. That law has been authoritatively considered by the High Court, particularly in Chan, and it is not said in this case that the Tribunal's analysis of the law is erroneous.

Given that the Tribunal had a correct understanding of the law, the applicant's task is to demonstrate that it has incorrectly applied the law to the facts as found. The questions in respect of matters which the Tribunal was required to make findings of fact are these:

i) Is the applicant outside her country of nationality;

ii) If so, is she unable or unwilling to avail herself of the protection of her country of nationality owing to a fear of persecution for reasons of religion or political opinion;

iii) If so, is such fear well-founded.

The Tribunal expressly found in the affirmative in respect of each of the first two questions. The sole issue for determination was whether the applicant's fear of persecution is well-founded. After considering the evidence the Tribunal found as a fact that the applicant's fear of persecution was not well-founded. Having made that finding, a correct application of the law to the facts of the case inevitably led to the conclusion reached by the Tribunal, namely that the applicant is not a refugee and is not entitled to the relief sought.

The particulars pleaded in respect of this ground of appeal challenge the finding of fact that the applicant's fear is not well founded and invite a consideration of matters of evidence to make good the challenge. Such an approach is not open to the applicant who seeks review under the second arm of s 476(1)(e), the very basis of which requires an acceptance of the facts as found by the Tribunal.

In my opinion the applicant has failed to make out a case for review pursuant to the ground available under s 476(1)(e) of the Migration Act.

b) No evidence to justify the decision

The principal criterion for the grant of a protection visa is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention (Migration Regulations reg 866.22). If a valid application is made to the Tribunal under s 412 of the Migration Act in respect of a Refugee Review Tribunal reviewable decision the Tribunal is required to review the decision (s 414(1)) and for the purposes of the review the Tribunal may exercise all the powers and discretions that are conferred by the Migration Act on the person who made the decision (s 415(1)). It must necessarily follow that in the event that the Tribunal sets aside the decision and substitutes a new decision (as it is empowered to do under s 415(2)(d)) the Tribunal must be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. In the present case the Tribunal was not so satisfied and accordingly concluded that the applicant is not a refugee and is not entitled to a protection visa.

The limitations imposed by s 476(4) on the application of the ground referred to in s 476(1)(g) are such that the ground will rarely, if ever, be available to an applicant who has been unsuccessful before the Tribunal. This is so because it is not possible to identify any particular matter that is required by law to be established in order to justify a decision that an applicant is not a refugee. In this case, the facts as found did not satisfy the Tribunal that the applicant was a refugee. The Tribunal was not required by law to make any particular finding in order to be not so satisfied.

In my opinion the case for review based upon s 476(1)(g) is misconceived and must fail.

CONCLUSION

The applicant has failed to establish any available ground to justify the review of the Tribunal's decision. The application will be dismissed with costs.

I certify that this and the preceding 14 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

Associate:

Dated:

Heard: 3 April 1997

Place: Melbourne

Judgment: 9 April 1997

Appearances:

Mr J. Belbruno (instructed by Koenig and Simons) appeared for the applicant.

Mr R.M. Downing (instructed by Australian Government Solicitor) appeared for the respondents.