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MIGRATION - Application for review of decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well founded.

NADV v Minister for Immigration [2002] FMCA 153 (30 July 2002)

NADV v Minister for Immigration [2002] FMCA 153 (30 July 2002)
Last Updated: 13 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NADV v MINISTER FOR IMMIGRATION
[2002] FMCA 153



MIGRATION - Application for review of decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well founded.



Migration Act 1958 (Cth) s.91R(3)

Re MIMA; Ex parte Durairajasingham (1999) 168 ALR 407

Applicant:
NADV



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 308 of 2002



Delivered on:


30 July 2002



Delivered at:


Sydney



Hearing Date:


24 July 2002



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr J.C Thompson



Solicitors for the Applicant:


G.H. Healey & Co



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 308 of 2001

NADV


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a Vietnamese citizen who applied for protection (class XA) visas on 1 February 2001. The applicant and his wife and two of their children had arrived in Australia on 5 January 1995. The fourth child was born in Australia on 27 July 2001.

2. The Minister's delegate refused to grant a protection visa on 8 October 2001 and the applicant sought review from the Tribunal on 17 October 2001. The Tribunal made its decision on 11 January 2002 and handed it down on 6 February 2002. The Tribunal affirmed the decision not to grant the protection visas.

3. The applicant is 47 years old. He was educated to tertiary level in Vietnam and graduated with a Bachelor of Mathematics and Computer Science from Hanoi University in 1980. His father was an early supporter of the Vietnam Minh. The applicant claims that notwithstanding this, his family were not treated well by the regime as they were perceived to be wealthy. He claims that he came to a realisation that Marxist-Leninism was not an appropriate social or economic philosophy for the Vietnamese people. The applicant claimed to have made efforts to escape Vietnam to Australia by boat in 1982 and in 1987 but both attempts were unsuccessful.

4. In 1995 the applicant received an Aus-Aid scholarship to study for a Masters of Commerce degree at the University of Wollongong. He claimed that after that time he was more active politically against the Vietnamese government and that he was the subject of notice and low-level harassment from the Vietnamese embassy. He claims to have published articles against the government's philosophies.

5. When the matter came before me the applicant was represented by solicitors and Counsel. The applicant was also represented when the application for review was made. His then solicitors filed an affidavit on 4 March 2002 together with the application but on 26 March 2002 they filed a notice of ceasing to act. The application was given a return date of 15 April 2002 before Hill J. At that time the applicant did not appear, although a friend appeared on his behalf. Orders were made requiring the respondent to file the usual documents and the matter was stood over until 10 May 2002 at 9.30am. On that date the applicant did appear and Hill J transferred the matter to this court. On 22 May 2002 a letter was written to the applicant advising him of a directions hearing before the Registrar at 2.15pm on 30 May 2002. The applicant attended the directions hearing and indicated he was attempting to secure legal advice. Short minutes of order were entered and the matter was listed for hearing on 24 July 2002. On that day a copy of the court book was handed to the applicant by the solicitor for the respondent.

6. When the matter commenced at 10.15am on 24 July 2002 the applicant's counsel made an application for an adjournment. He did this on the basis that he had recently come into the matter and was not as familiar as others might be with the jurisdiction. He had therefore not prepared the matter thoroughly and needed further time to consider the relevant legislation and cases. The application was resisted by the respondent but I granted the applicant an adjournment until 2.15pm that afternoon.

7. When the matter resumed at 2.15pm the applicant renewed his application for an adjournment on two bases. The first was that his client had not received a copy of the Court Book and he had not seen it and the second was that he had been advised that the transcript and/or the tape of the hearing before the Tribunal would reveal that the Tribunal had not made a bona fide attempt to exercise its power. Counsel had not heard the tape nor read the transcript.

8. In relation to the Court Book, the applicant withdrew his submission; additionally I noted that the applicant's counsel had a copy of a folder of papers which was also in the Court Bundle which were headed "documents relevant to file number N168/2002". These documents are mostly duplicates of those which are in the Court Book.

9. I declined the application for an adjournment. My reasons for doing this was that the applicant was represented at the critical time when he made the application for review. His solicitors are well known to the Court and it is reasonable to assume (without trespassing on what advice may have been given) that he was told of his rights to obtain a copy of the tape recording of the Tribunal hearing, if he did not have it already, and to what use it might be put. Although his then solicitors ceased to act on 26 March 2002 the new solicitors were not instructed until 22 July 2002. Orders were made for the applicant to prepare submissions at the directions hearing on 30 May 2002 but these orders were not complied with.

10. I am of the view that the applicant has had ample time in which to prepare his case. As counsel was unable to point to anything more than the existence of findings against the credit of the applicant for the suspicion that the Tribunal had acted with a lack of bona fides. I did not think that that was sufficient to entitle the applicant to an adjournment.

11. I then heard the application. The applicant submitted that the consistent findings against the credit of his client indicated a lack of bona fides on the part of the Tribunal.

12. The findings against the applicant were in relation to the following matters. The Tribunal did not accept as plausible the applicant's claim that he and his wife had made two unsuccessful attempts to leave Vietnam with people smugglers. The reasons given by the Tribunal for coming to that conclusion seemed to me to be perfectly valid and certainly not capricious. But in any event the applicant was not suggesting that his failed attempts to leave the country were anything more than corroboration of his anti-government stance.

13. The Tribunal did not accept the applicant's claims that he had been politically active since he came to Australia in 1995. The most telling evidence that the applicant produced of this was the writing of the three articles critical of Marx and Lenin. These articles were lost. The Tribunal did not believe that they were ever written. That also does not matter because they were certainly never published.

14. The Tribunal rejected the applicant's claim to have attended anti-Vietnamese government demonstrations on a regular basis. The Tribunal came to the view that no political activism by the applicant had taken place before rejection of his protection visa application in March 2001 and thus these subsequent activities fell within s.91R(3) of the Migration Act 1958 (Cth). This finding appears to be based upon evidence available to the Tribunal.

15. The Tribunal did not accept the applicant's claim of low-level harassment from the embassy and notes that this is alleged to have occurred in 1997 whereas the protection visa application was only made in 2001.

16. Based upon these matters and upon the in-country information concerning the treatment of dissidents in Vietnam the Tribunal came to the conclusion that the applicant did not have a well-founded fear of persecution. This conclusion was open to the Tribunal on the evidence before it.

17. Findings on credit are in themselves not subject to review. As McHugh J said in Re MIMA; Ex parte Durairajasingham (1999) 168 ALR 407 at 423 "a finding on credibility is the function of the primary decision-maker par excellence."

18. In all the circumstances I am unable to find any reviewable error in the decision of the Tribunal. I dismiss the application and I order the applicant pay the respondent's costs which I assess in the sum of $3,500 in accordance with Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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