Abw17 v Minister for Immigration

[2019] FCCA 864

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABW17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 864

Catchwords:
MIGRATION – Whether the applicant should be granted a protection visa – whether the applicant has a well-founded fear of persecution – jurisdictional error is not made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 414
Migration Regulations 1994 (Cth)

Cases cited:

Chan v the Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: ABW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 23 of 2017

Judgment of: Judge Humphreys

Hearing date: 27 March 2019

Date of Last Submission: 27 March 2019

Delivered at: Melbourne

Delivered on: 27 March 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr Cunynghame of Sparke Helmore Lawyers

ORDERS

1. The Amended Application for judicial review filed on 2 October 2018 is dismissed.

2. The Applicant pay the First Respondent’s costs in the sum of $7,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 23 of 2017

ABW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant has appealed against a decision of the Administrative Appeals Tribunal (‘the Tribunal’) of 12 December 2016 not to grant him a Protection (Class XA) visa (‘Protection Visa’), pursuant to s.65 of the Migration Act 1958.  The applicant has appeared self-represented. The applicant is assisted by an interpreter in the Vietnamese language.

The nature of the application

1. The applicant seeks judicial review of the Tribunal decision, that is, the applicant asserts there is an error of law on the face of the record of the proceedings or what is known as jurisdictional error.

2. Where there is jurisdictional error, the Court may quash the decision and remit it back to the Tribunal to be dealt with according to law.

3. Judicial review needs to be compared with merits review.  Merits review involves the making of the correct or preferable decision based on the evidence before the relevant decision-maker.  Merits review involves fact-finding.  The Court is not allowed to undertake merits review.  The Court is limited to a review of the proceedings to determine whether or not there is an error of law on the face of the record.

Material available

1. The Court has had the following material available to it for consideration contained within the Court book, which relevantly includes the amended application of the applicant, the Tribunal decision of 12 December 2016, the applicant’s written submissions and the Minister’s submissions.

The AAT decision

1. I propose to set out in some detail the relevant history of the matter and the reasoning and evidence considered by the Tribunal in coming to its decision.

2. The applicant claims to be a citizen of Vietnam who applied for a visa on 11 June 2014, that being, a Protection Visa under s.65 of the Migration Act 1958.

3. The relevant criteria for a protection visa are set out in s.36 of the Act and schedule 2 to the Migration Regulations 1994. That is, the applicant is either a person in respect of whom Australia has protection obligations under the refugee criterion or on other complementary protection grounds.

4. Australia is a party to the Refugee Convention, and article 1A(2) relevantly defines a refugee as any 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 outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, because he is outside his country of former habitual residence, is unable or, owing to such fear, unwilling to return to it

5. There are four key elements of the convention definition.

6. First, the applicant must be outside his or her country.

7. Second, an applicant must fear persecution, and persecution must involve serious harm and systematic and discriminatory conduct. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.

8. Third, the persecution which is feared must be for one of the reasons enumerated in the convention definition, being race, religion, nationality, membership of a particular social group or political opinion.

9. Fourth, an applicant’s fear of persecution for a convention reason must be well-founded.  This adds an objective element to the requirement that an applicant must hold such a fear.

10. A person has a well-founded fear of persecution under the convention if they have a genuine fear founded upon a real chance of being persecuted for a convention-stipulated reason.  A real chance is one that is not remote or insubstantial or far-fetched.  A person can have a well-founded fear of persecution even though the possibility of persecution occurring is well below 50 per cent.  As a result of that fear, they must be unwilling or unable to return to the protection of his or her country.

11. Additionally, there is complementary protection criterion. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may, nevertheless, meet the grant of the Protection Visa under s.36(2)(aa) if he or she is:

    A non-citizen in which the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

12. Significant harm includes being arbitrarily deprived of their life, or the where death penalty will be carried out, or a person will be subjected to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

13. In considering whether or not Ministerial discretion should be taken into account, a decision-maker is required to comply with Ministerial direction number 56 and take account of policy guidelines prepared by the Department of Immigration and any country information assessed by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.

14. The following material is uncontroversial in the Tribunal’s decision.  The applicant claims to be a farmer and welder by profession who is a practicing Catholic, who contributed to the operations of his local parish. 

15. Through this involvement with the Catholic Church, the applicant participated in protests at Con Cuong on 1 July 2012.  Due to the crackdown against protestors, the applicant is claiming protection for fear of an impugned political opinion as an active Catholic who participated in the Con Cuong incident, having disobeyed instructions not to leave his home area, not being able to practise his faith and being a failed asylum seeker.

16. The Tribunal made the following findings of fact.  The Tribunal accepted that the applicant was and remains a practising Catholic, and he played an active role in the local parish.

17. The applicant claims he was involved in clashes with police on or around 1 July 2012.  The Tribunal found that the applicant’s description of the event matched those publicly available. The Tribunal accepted the applicant was involved in the incident as a general participant. 

18. The applicant told the Tribunal that he was later summonsed by local police, was questioned and then forbidden from participating in future masses or charitable activities.  The Tribunal accepted the applicant’s account of engagement with police post-incident, including his belief that he was not expected to attend as a worshipper.

19. The applicant also claimed that he was followed by someone, watched and regularly summonsed each month by police and told not to carry out normal church activities.  The Tribunal did not accept that he was being followed for the reason of limited police resources and the applicant being a young man who played no particular role in the protests. 

20. The applicant told the Tribunal that even after he left the country, he claims police harassed his family.  The Tribunal accepted that local police would visit his parents’ house, and some local police would know that he is abroad.

21. The applicant arrived in Australia in 2013, and the incident occurred in July 2012.  The applicant claimed that he left Vietnam using a passport, and the Tribunal accepted that he departed Vietnam legally.

22. The Tribunal noted there had been a data breach in February 2014 prior to the delegate’s rejection of the application, where 9,250 asylum seeker names and limited details were posted online.  The Tribunal accepted that the information listed above would be available to the Vietnamese government, which could include his own information.

23. The Tribunal then proceeded to consider the applicant’s fears from his involvement in the Con Cuong incident.  The Tribunal accepted that he had a subjective fear of return and then went on to consider whether or not there was an objective basis upon which the fear could be grounded.  Reference was made to country information.  It is well-settled that a Tribunal may have regard to country information, and the weight to be given to such information is entirely a matter for the Tribunal.[1]

    [1] See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

24. The Tribunal noted that church relations with authorities in the area were very bad around 2011 and 2012. Recent information suggested a warming of relations.

25. Based upon this country information, the Tribunal found that while immediately after the incident referred to by the applicant, further protests occurred; however, the relationship between the government and Catholics in the Vinh Diocese has improved to the extent that they are considered as being normal.

26. The Tribunal accepted that local police continued to visit the applicant’s house, but the Tribunal found that the chance of such action by authorities could amount to an intent to cause the applicant harm was remote.  The Tribunal found that the applicant does not face a real chance of serious harm were he to return to Vietnam nor a real risk of significant harm as a necessary and foreseeable consequence of his return.

27. The Tribunal then reviewed restrictions on the applicant’s ability to practise his faith.  The Tribunal relied upon country information which stated that Catholics in Vietnam who worship quietly, in conformity with government policies and sensitivities, are able to do so with a low risk of official interference.

28. The Tribunal noted that there had been considerable issues in the few months following the incident referred to above; however, looking forward to the circumstances the applicant would face upon his return, the Tribunal found the circumstances do not create a real chance of serious harm for the reason of religion, nor would he face significant harm in the pursuit of practising his religion, as defined exhaustively in s.36(2A) of the Migration Act 1958.

29. The Tribunal then turned its mind to the issue of fears in relation to having sought asylum.  Again, the Tribunal had regard to country information that indicated that persons who have sought asylum in Australia did so generally to achieve residence for economic reasons.  The Tribunal found that the applicant’s fear of persecution for the convention reason of membership of a social group, namely, failed asylum seekers in the Western countries, did not meet the real chance test.  The Tribunal did not accept that the applicant faces a real risk of significant harm relating to his seeking asylum in the reasonable and foreseeable future were he to return to Vietnam.

30. Lastly, the Tribunal looked at the totality of the circumstances faced by the applicant.  The Tribunal turned its mind to the cumulative impact of his involvement in the Con Cuong incident, his requirement to attend regularly to police stations for the months thereafter but ignoring instructions and continuing to practise his Catholic faith, and the impact of being considered a failed asylum seeker whose data may have been released through a data breach.

31. Considering all of those matters in totality, the Tribunal did not find that the applicant faces a real chance of serious harm were he to return to Vietnam nor, considering the complementary protection guidelines, that he would be at real risk of significant harm. For those reasons, the Tribunal was not satisfied that the applicant was a person whom Australia had protection obligations under s.36(2)(a) or the alternative criteria in s.36(2)(aa). It was not a situation whereby the applicant was a member of a family unit, and that matter was not considered.

32. It is clear from the Tribunal’s reasons that they gave considerable weight to all of the information that was before the Tribunal and made findings of fact that were open to it on the information available.  The reasons were detailed. They were logical, they considered both the law and the facts and came to reasoned and reasonable conclusions.

The applicant’s submissions

1. I now turn to the applicant’s submissions contained within the document filed within the Court and the respondent’s submissions.  There are only three grounds that were considered, although in the applicant’s oral submissions, brief mention was made of a number of matters. I will deal with those initially.

2. The applicant was concerned that a letter from a priest had not been interpreted and placed on the file.  I was drawn to the letter on page 162 of the Court book but also a translation which appeared on page 84 of the Court book.  It is clear that that letter was considered.

3. The applicant called attention to the data breach and suggested the Tribunal did not consider this as part of its decision and overall assessment.  From the detailed reasons I have set out above from the Tribunal’s decision, it is clear that the Tribunal did consider the impact of the data breach.

4. Finally, the applicant sought to tender additional and new material consisting of letters or references post-dating the decision of the Tribunal and some photographs of him participating in protests in relation to the ‘Free Vietnam’ movement. This material was properly objected to by Mr Cunynghame, who appears for the Minister, on the basis that it post-dated the Tribunal’s decision. The tender of those documents was rejected because, as I indicated, the Court is not engaged in merits review.

5. I now turn in detail to the applicant’s written submissions. The first ground was that the Tribunal failed to carry out a review as required by s.414 of the Act, that the Tribunal failed to take account of evidence that was credible and relevant concerning protection claims. In particular, attention was drawn to the claim that the Tribunal was obliged to consider whether the applicant has a well-founded fear of persecution. It suggests that the Tribunal failed to consider the claim that the applicant was persecuted for his political opinion as a religious activist and, in so doing, did not discharge its duty to carry out a proper review pursuant to s.414 of the Migration Act 1958.

6. The Minister submitted that there was no evidence of particulars in relation as to what material the Tribunal failed to consider.  It is clear the Tribunal accepted that he is a practising Catholic, was involved in the Con Cuong incident and that he was visited by police or summonsed by police later.  The Tribunal did not accept, however, based on the totality of the evidence that he would not be able to continue to practise as a Catholic upon his return, and it was not convinced that he would suffer serious or significant harm were he to be returned.

7. I am unable to find any material that was not considered by the Tribunal. I am satisfied the Tribunal did discharge their duty to carry out a proper review pursuant to s.414 of the Migration Act 1958.  As I indicated, the Tribunal gave clear and reasoned grounds for its findings of fact and considered all of the available material.  This ground of appeal cannot be sustained.

8. Secondly, it was suggested that the Tribunal had failed to apply the correct legal test in that the Tribunal failed to understand and apply the correct test when considering whether or not the applicant had a well-founded fear of persecution.  It was submitted the Tribunal correctly stated that a fear of being persecuted is well-founded if there is a real chance of being persecuted.  It is certainly true as a matter of law that a real chance may well be below 50 per cent.[2]

   [2] See Chan v the Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.

9. Reference was made to the rapidly changing nature of the circumstances that exist between the Vietnamese government and the Catholic Church.  Given the rapidly changing circumstances, it was submitted that it is foreseeable the applicant could suffer serious harm in the future if he were to return to Vietnam.  In response, the Minister submitted that no particulars had been relied upon.  Reference was made to the country information, and relations between the Catholic Church and the government were improving.

10. The submission of the applicant in this regard is very speculative. Indeed, no material has been placed before the Court that would indicate that as of the date of the decision, the Tribunal did not consider all relevant information.  The Tribunal made findings of fact which was open to it.  I am persuaded by the Minister’s submission that, in fact, this submission effectively is asking the Court to undertake merits review.  I am not satisfied that the ground of appeal is made out.  I am satisfied that the Tribunal did apply the correct test.

11. The last ground contends the Tribunal contravened s 5J(3)(c)(i) by, in effect, requiring the applicant to alter his religious beliefs were he to be returned to the country.  It was suggested that the reliance by the Tribunal on the country information that indicated that worshipping quietly would require the applicant to, in effect, renounce his religion.

12. As a finding of fact, the Tribunal found the applicant would be able to continue to participate in Mass and church activities and, in so doing, would not suffer serious or significant harm.

13. The applicant’s submission, to my mind, actually misconstrues the findings of the Tribunal.  Practising their religion quietly, to my mind, is well-removed from the renouncing of religion.

14. No jurisdictional error is made out in this ground, and the finding of the Tribunal was open on the material that was before it.

15. In conclusion, I find there has been no error of law made out by the applicant in this matter. Accordingly, the application for judicial review is dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate: 

Date:  9 April 2019