Van Chuong Nguyen v Minister for Immigration & Ethnic Affairs [1997] FCA 139 (7 March 1997)

CATCHWORDS

IMMIGRATION - Whether Refugee Review Tribunal erred in law when applying law to the facts as found - whether finding that reason for harassment was not for a "Convention related" reason constituted part of found facts

Migration Act 1958 s 476

Migration Regulations

Social Security Act 1991

Secretary, Department of Social Security v Leanne Susan Danielson (unreported, Federal Court of Australia, 23 December 1996, Cooper J)

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437

Curragh Queensland Mining Ltd v Daniel [1992] FCA 44; (1992) 34 FCR 212

No. NG 532 of 1995

VAN CHUONG NGUYEN v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

MOORE J

SYDNEY

7 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 532 of 1995

)

GENERAL DIVISION )

BETWEEN: VAN CHUONG NGUYEN

Applicant

AND: MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

JUDGE: Moore J

PLACE: Sydney

DATE: 7 March 1997

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent's costs.

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 ) No. NG 532 of 1995

)

GENERAL DIVISION )

BETWEEN: VAN CHUONG NGUYEN

Applicant

AND: MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

JUDGE: Moore J

PLACE: Sydney

DATE: 7 March 1997

REASONS FOR JUDGMENT

This is an application by Van Chuong Nguyen ("the applicant") for the review of a decision of the Refugee Review Tribunal ("the Tribunal") of 25 May 1995. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Ethnic Affairs on 27 September 1993 refusing to grant an application for a domestic protection (temporary) entry permit and to determine that the applicant was a refugee. The applicant had made his initial application on 10 May 1993. The application to the Tribunal was made on 26 October 1993 and the hearing conducted on 10 February 1994.

The following narrative is taken, in the main, from the Tribunal's reasons for decision. Some non contentious facts derive from other material in evidence. I will, in due course, discuss some contentious factual matters dealt with by the Tribunal.

The applicant was born on 30 April 1957. He is Vietnamese and is married with one child. In 1975, when the government of South Vietnam fell, he was studying in a Catholic seminary and intended to become a priest. Prior to 1975, his father had served in the armed services of South Vietnam and had held positions on a Catholic committee and in a political party. The applicant's father was arrested and detained between July 1975 and October 1979. When the government fell, the applicant's family's property in Dac Loc was confiscated and in 1977 the family moved to an area in Tra Vinh. In 1978 the applicant moved to Ho Chi Minh City where he studied at the University till 1983. He was then politically active. In 1983 he commenced employment at a government timber mill. That employment only lasted three months. With his wife, the applicant then set up a small poultry farm raising chickens and quails on a property owned by his wife and her family. He went to Ho Chi Minh City once or twice a week which was a trip of one and a half hours. There he would visit his parents and a member of the democracy movement which he had been involved in at University. This occurred during the period 1983 to 1993 when he left Vietnam and entered Australia.

Many of the matters I have referred to are in an account of the applicant's evidence in the Tribunal's decision in a section entitled "Claims and Evidence". Nonetheless, it appears to be an account accepted by the Tribunal having regard to its later discussion of the applicant's background from 1975 to 1983 and other events occurring both before and after 1983. It is necessary to set out one particular passage appearing in the section "Claims and Evidence":

"The Applicant said, following his dismissal from the timber mill he had experienced ongoing harassment from the local authorities until the time that he left Vietnam. He explained that the harassment took the form of regular questioning and sometimes detention on public holidays or national days. He said that he had been detained for a period of two or three days at a time on those occasions. He explained that on those occasions he was locked in a detention room he was not questioned but that on occasions when he was called in for questioning he was asked details of his movements and matters concerning his crops or various costs and then allowed to leave after three or four hours. At the Departmental interview he said that the last time he had been detained prior to coming to Australia was from 1 September 1993 to 3 September 1993 and that he had also been detained about three to four months prior to that date. He said that the period in September was a national holiday for the communist party. He said his wife had brought food and he was not questioned or interrogated."

It was common ground that the reference in this passage to 1 and 3 September 1993 was a typographical error and should have read 1 and 3 September 1992.

Another version of the applicant's account of this harassment was found in a section of the decision of the Tribunal entitled "Harassment by Local Officials" which, in turn, was one part of a section entitled "Reasons for Decision". The Tribunal said:

"The Applicant claimed that he has been continually harassed by the local officials. He claimed that following his dismissal from a government timber mill in 1983 because of a bad family history he had been regularly harassed by local officials. He said that on some occasions the local officials questioned him at the local police station and asked him what he had done in the last few days and had he been to the city. He said they asked him if he went to the city to buy food, how much he spent on petrol to travel to the city and how much he payed for electricity. He said that sometimes on public or national holidays the officials would not question him but have him locked up and release him after the holidays. He claimed that he was not questioned but put into a room and locked up for one or two days and then released. He gave examples of when this last occurred saying that he was detained on 2 September 1992 and released on the evening of 3 September 1992. The time before that had been three or four months previously.

This treatment has been peculiar to the local authorities. The Applicant suffered no similar treatment under the Vietnamese central authority or the local authority in Tra Vinh. It was suspected that he was involved politically at the university in 1981 yet despite a detention he faced no difficulty in completing his education two years after his release. It was only in 1983, under the local authority that the Applicant suffered any harassment of a regular nature."

This account of how the applicant had been treated was considered by the Tribunal later in its decision in a section entitled "The Nature of Provincial and village officials" which again formed part of a section entitled "Reasons for Decision". After accepting that it was possible that the applicant's dismissal from the timber mill in 1983 after only three months employment was because of his family background, the Tribunal went on to deal with the harassment of the applicant over the next ten years or so. It said:

"The Applicant has stated to the Departmental officer at interview that the questions he was asked by the local officials were on matters regarding finance. He gave examples of being asked if he had bought food in Saigon/Ho Chi Minh city, if he had harvested his crop, how much he paid for electricity and how much he spent on fuel to travel to Saigon/Ho Chi Minh city. Since he says that the authorities know about his family background they would know that he has relatives overseas. His brother said that the Applicant was called to the office the day he visited him. From what the Applicant has said regarding the non-political, financial nature of his questioning and the manner that he is treated by the local authorities the Tribunal finds that it is not plausible that the authorities' conduct, in this regard is Convention-related and their treatment of him is for some other reason." (emphasis added)

As will be apparent shortly, what was said by the Tribunal in this passage was central to the applicant's case in these proceedings.

Before considering the submissions of the applicant I should mention a matter of detail. In a passage in its decision, the Tribunal proceeds on the basis that, as a matter of fact, a leader of the democracy movement, Dr Nguyen Dinh Huy and an associate of his, Mr Nguyen Van Hoa were arrested before the applicant was permitted to travel to Australia in April 1993. Prior to leaving Vietnam the applicant regularly met Mr Nguyen Van Hoa. It may well be, on the material before the Tribunal, this finding is wrong at least as it concerned the arrest of Mr Nguyen Van Hoa. I will return to this in due course.

The principal submission of the applicant was that the Tribunal failed to apply the law to the facts as it found them. This submission was based on s 476(1)(e) of the Migration Act 1958 ("the Act") which identifies the grounds of review by this Court. Section 476 relevantly provides:

"(1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially reviewable decision on any one or more of the following grounds:

(a) ...

(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, whether or not the error appears on the record of the decision;

(f) ...

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

(2)...

(3)...

(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 applicable law was, for present purposes, s 36 of the Act and clauses 866.21 and 866.22 of Schedule 2 of the Migration Regulations ("the Regulations") which conditions the grant of a visa on the Minister being satisfied that the applicant is a person to whom Australia had a protection obligation under the 1951 Convention Relating to the Status of Refugees ("the Convention") as amended by the 1967 Protocol Relating to the Status of Refugees, having regard to the decisions of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. It was thus necessary that the Minister be satisfied that the applicant was a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is unable or, owing to such fear, is unwilling to avail himself of the protection of the country of his nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. Counsel for the applicant submitted that the Tribunal failed to look at the entirety of the material to determine whether there was a real chance of persecution: see Wu at 293-295 per Kirby J and that it failed to recognise that persecution may arise from systematic harassment: see Chan at 429 per McHugh J.

The ground identified in s 476(1)(e) limits, for present purposes, the scope of judicial review to the incorrect application of the law to the facts as found by the decision maker. The first step in considering the applicant's submission is to determine the relevant findings of fact made by the Tribunal in the most recently quoted passage from its reasons. This passage became, as the submission was developed orally, the cornerstone of the challenge to the Tribunal's decision. It is relatively clear that the Tribunal found, as a matter of fact, that the questions asked of the applicant by local officials were non-political and related principally, directly or indirectly, to the finances of the enterprise he was conducting with his wife. Having made that finding the Tribunal went on to indicate that, to the extent that the applicant had been detained and/or questioned, that detention and questioning was not "Convention-related" and was for some other reason, though that other reason was not specified.

On a fair reading of the Tribunal's decision, it appears to have inferred from the subject matter of the questioning and the way the applicant had been treated, that the reason for the detention and questioning was not a reason related to the applicant's religion or political opinions. The critical question is whether that inference is comprehended by the expression "facts as found" in s 170(1)(e). If the drawing of the inference is part of the process of fact finding then the consideration of whether there has been an incorrect application of the law would be on the basis that the "facts as found" included the inferred fact. If the drawing of the inference is not part of the fact finding process then the assessment that the detention and questioning was not for a "Convention-related" reason can be scrutinised to assess, as submitted by the applicant, whether the Tribunal failed to recognise that persecution may arise from systematic harassment and, more generally, whether the Tribunal erred in law in considering whether the applicant had a well founded fear of persecution having regard to other matters raised by the applicant.

In enacting s 476, Parliament intended to narrow the scope of judicial review of decisions of, inter alia, the Tribunal: see Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693; Dai Xing Yao V Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Full Court, 18 September 1996), Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322. Fact finding can be challenged by way of review on the ground identified in para (g) of s 476(1).

An inferred finding of fact that a reason for particular conduct of government officials directed at an individual is not for a reason specified in the Convention is a finding not many steps removed from the ultimate finding of whether the person is a person to whom Australia has protection obligations under the Convention. It is nonetheless a finding comprehended, in my opinion, by the expression "facts as found" in s 476(1)(e). The legal characterisation of the process of drawing inferences was discussed by Cooper J in Secretary, Department of Social Security v Leanne Susan Danielson (unreported, Federal Court of Australia, 23 December 1996, Cooper J) in relation to whether a false statement or representation had been made upon which s 1224(1) of the Social Security Act 1991 (Cth) operated. There was no direct evidence of the statements or representations of the recipient of a benefit. His Honour said:

"However, that there is no direct evidence of a fact does not necessarily mean that there is no evidence of a fact. Courts and tribunals are frequently asked to infer the existence of a particular fact from the existence of a series or number of other facts which, taken together, suggest that the existence of the particular fact in question is more probable than not. The particular fact (the principal or ultimate fact or factum probandum) is inferred from the existence of the other fact or facts (the evidentiary fact or factum probans). Proof of a fact in issue is legitimately undertaken in this way (see generally Wigmore on Evidence, Tillers Rev 1983, Volume 1A,SS30 - SS31; Cross on Evidence, Third Australian Edition 1986, paragraphs 1.20 - 1.62; Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47 at 51; Edward J Sweeney & Sons Inc v Texaco Inc [1980] USCA3 753; 637 F2d 105, 115 - 116 (3rd Cir 1980), cert denied, 451 US 911 (1981))."

In the present case the finding that the reason for the conduct was not a "Convention-related" reason was a finding of fact inferred from other facts, and involved a step in the fact finding process the Tribunal was entitled to make. The inferred fact is the factor or factors actuating the conduct of the local officials. It may, perhaps, aptly be described as an intermediate fact: see Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 576 and 579, or as a further fact: see Shepherd (supra) at 589. That inferred fact constitutes part of the facts found by the Tribunal. Thus it must be treated as correct for the purpose of considering whether there has been an incorrect application of the law for the purpose of s 476(1)(e). If the Tribunal's conclusion concerning the reasons for the detention and questioning must be accepted, the challenge based on the Tribunal's application of the law must fail. That is because the fact the harassment had occurred, whether systematic or not, would not found a conclusion that the applicant presently had a well founded fear of being persecuted for a reason of the relevant character. Any harassment had not been for a reason which would require consideration of other elements of what the Convention defines as a refugee or, putting it in its relevant statutory context, further consideration whether the applicant was a person to whom Australia has protection obligations for the purposes of clauses 866.21 and 866.22 of Schedule 2 of the Regulations. Having made the finding about the reason, it was unnecessary for the Tribunal to go any further.

The applicant also challenged a finding of the Tribunal concerning the capacity of the applicant to relocate within Vietnam. In a section of its decision entitled "Conclusion", the Tribunal repeated the view that the harassment was not "Convention-related" and was by local officials. It goes on to express the view that the applicant was able to relocate to another area in Vietnam and the harassment would not be continued by authorities in either Ho Chi Minh City or another region. Whatever might be thought about the cogency of the Tribunal's reasons for reaching that last conclusion, it was unnecessary for it to address the question of internal relocation in the absence of a conclusion that there existed a well-founded fear of persecution for a reason identified in the Convention. The question whether individuals can avail themselves of the protection of their country of nationality other than in their home region will arise in the context of the existence of a well founded fear of the relevant character: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 441 - 442, per Black CJ. As no finding was made by the Tribunal of the existence of a well founded fear of persecution of the relevant character, nor an error of law established in relation to that finding, it is unnecessary to further consider the manner in which the Tribunal approached the question of internal relocation. If it made any error of law, and I do not imply it did, it would not have been a material error.

This leads to consideration of a subsidiary submission made by counsel for the applicant based on the ground in s 476(1)(g), though it was only really made in passing in oral submissions. I earlier referred to the arrest of Dr Nguyen Dinh Huy and Mr Nguyen Van Hoa. In a section entitled "Consideration of the Applicant's Political Profile" the Tribunal said:

This absence of political profile for the last thirteen years coupled with the fact that the authorities permitted the Applicant to travel overseas after the arrests of the people whose cases he refers to leads the Tribunal to conclude that he is of no significant interest to the authorities in this regard and there is no reason to believe that he fears arrest because of his participation prior to 1981."

The reference to 1981 was a reference to the overnight detention of the applicant after he had been engaged in the distrubition of pro- democracy leaflets at university. The reference to "after the arrests of the people" is a reference to the arrest of Dr Nguyen Dinh Huy and Mr Nguyen Van Hoa. There was evidence to support the finding implicit in this passage that Dr Nguyen Dinh Huy was arrested before the applicant came to Australia, though he also appears to have been arrested again in July 1993. The applicant arrived in Australia on 1 April 1993. I was not referred to any evidence that would have supported a finding that Mr Nguyen Van Hoa was arrested before 1 April 1993, though this issue was not one adverted to in the notice of appeal or the written submissions of the applicant. Understandably it took counsel for the respondent by surprise and the opportunity he had to locate any relevant evidence or material was extremely limited.

However, even assuming there was no evidence to support the finding that Mr Nguyen Van Hoa was arrested before the applicant left Vietnam, it is a matter of fact far removed from the type of matter or fact addressed by the combined operation of s 476(1)(g) and (4): see Curragh Queensland Mining Ltd v Daniel [1992] FCA 44; (1992) 34 FCR 212. I do not see how it could be reasonably be viewed as a fact critical to the making of the decision. The view taken by the Tribunal about the applicant having no political profile was based on a review of the applicant's history since 1981. The fact that the applicant was allowed to travel overseas after, as the Tribunal believed, the arrest of a person with whom the applicant had been in comparatively regular contact, was but one matter considered by the Tribunal in concluding that the applicant was of no significant interest to the authorities. The fact relied upon by the Tribunal that the travel was permitted after the arrest was not central to its conclusion that it was unlikely the applicant would come to the attention of the authorities or be arrested upon his return.

I dismiss the application with costs.

I certify that the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:

Alexandra George

Dated: 7 March 1997

APPEARANCES

Counsel for the Applicant: Dr S C Churches

Solicitor for the Applicant: Nguyen & Co

Counsel for the Respondent: Mr R Beech Jones

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 8 November 1996