Abw17 v Minister for Immigration and Border Protection
[2021] FCA 596
•31 May 2021
FEDERAL COURT OF AUSTRALIA
ABW17 v Minister for Immigration and Border Protection [2021] FCA 596
Appeal from: ABW17 v Minister for Immigration and Anor [2019] FCCA 864 File number: VID 379 of 2019 Judgment of: BROMBERG J Date of judgment: 31 May 2021 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – whether the Federal Circuit Court of Australia erred in failing to find jurisdictional error in the decision of the Administrative Appeals Tribunal (Tribunal) – whether the Tribunal failed to give genuine, proper and realistic consideration to an integer of claim – whether the Tribunal erred in applying s 5J(3) of the Migration Act 1958 (Cth) – appeal dismissed Legislation: Migration Act 1958 (Cth) s 5J(3) Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 14 Date of hearing: 31 May 2021 Counsel for the Appellant: Ms J Zhou Solicitor for the Appellant: Vstar Lawyers and Consultants Solicitor for the First Respondent: Mr A Cunynghame of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 379 of 2019 BETWEEN: ABW17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BROMBERG J
DATE OF ORDER:
31 MAY 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Appellant pay the First Respondent’s costs of the appeal as agreed or as assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
This is an appeal from a judgment of the Federal Circuit Court of Australia. By that judgment, the primary judge dismissed an application made by the appellant for the judicial review of a decision of the Refugee Review Tribunal (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) to refuse the appellant a protection visa.
The appellant is of Vietnamese origin. He applied for a protection visa on 11 June 2014. On 7 May 2015, a delegate of the Minister refused the grant of that visa. On 14 May 2015, the appellant applied to the Tribunal. On 12 December 2016, the Tribunal affirmed the delegate’s decision.
The essence of the Tribunal’s decision is sufficiently outlined for present purposes in the submissions filed on behalf of the Minister. Adopting what is there said, the Tribunal accepted that the appellant was a practising Catholic and played an active role in his local parish. The Tribunal also accepted that the appellant was involved in an incident at a parish church known as the Con Cuong incident.
The Tribunal further accepted that following the incident, the appellant was summoned by the police and told not to attend future masses. The Tribunal found that the appellant ignored the police and continued to attend mass. The Tribunal also found that the police knew of the fact that the appellant was ignoring police demands in the eight months following the Con Cuong incident. The Tribunal also accepted that, after the appellant left Vietnam, local police visited his parents’ house and some local police knew he was abroad. However, the Tribunal did not accept that this indicated anything more than hamlet authorities noting a person who was registered as residing in the area and previously known to them being no longer present. The Tribunal found that the appellant did not face a real chance of serious harm or a real risk of significant harm if he returned to Vietnam. On that basis, the Tribunal affirmed the decision of the delegate.
The primary judge dismissed the appellant’s judicial review application. Two of the grounds raised before the primary judge are raised by the Amended Notice of Appeal upon which the appellant relies in this appeal.
By ground 1, the appellant contended that the primary judge erred in failing to conclude that the decision of the Tribunal was affected by jurisdictional error because a genuine, proper and realistic consideration was not given by the Tribunal to a claim made by the appellant that he had a well-founded fear of persecution by reason of his political opinion as a religious activist.
In the oral submissions made on behalf of the appellant, the Court was taken to the specification of a lawyer’s submission made on behalf of the appellant before the Tribunal. That submission raised a claim of persecution arising from the appellant’s political opinion. The submission referred to the fact that the appellant is a devout Catholic and heavily involved with his local church. It also stated that the appellant attended mass four to five times a week and would often travel to Con Cuong Church to participate in religious events and to assist the priest. The submission also referred to the Con Cuong Church having been attacked in July 2012 by the authorities who destroyed religious monuments of the church and attacked nuns. It stated that the appellant went to the Con Cuong Church after it had been attacked to show his support, and that he was beaten by the authorities and detained for several hours. The submission also refers to the appellant having been abused and subjected to threats and intimidation after the Con Cuong incident, that he was forced to attend the local People’s Committee office two or three days per week for the next five months, and that he was monitored.
The submission stated that, given the appellant’s imputed profile as a prominent activist of a religious organisation and his previous disobedience towards authorities, there was a real risk that the appellant would be perceived to be a religious activist and a political dissident and be subjected to harm upon return to Vietnam. It is that claim which the appellant contends here was not the subject of genuine consideration by the Tribunal. That contention was rejected by the primary judge and, in my respectful view, there is no error in the primary judge’s conclusion.
It is clear from the Tribunal’s decision at [20] that the Tribunal recognised the claim of persecution for political opinion. The claim had only been put in relation to the protest at Con Cuong and the aftermath of that incident. Contrary to the appellant’s contention of this appeal, the claim was not put any more broadly than that. The Tribunal was correct to understand the claim as being a claim that there would be a perception of political activism imputed to the appellant based on his involvement in the Con Cuong incident and its aftermath, and correctly recognised the nature and scope of that claim. The Tribunal then at [24]-[36] dealt with the claim and concluded that the appellant would 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 that return. It follows, in my view, that there is no basis for the appellant’s contention that the claim of persecution on the basis of the appellant’s political opinions and his disobedience of authorities was not the subject of genuine consideration by the Tribunal. Ground 1 must be dismissed.
I then turn to ground 2. Ground 2 contends that the primary judge erred in failing to conclude that the Tribunal’s decision was affected by jurisdictional error because the Tribunal erred in applying s 5J(3) of the Migration Act 1958 (Cth). The particulars to that ground assert that the Tribunal, in effect, required the appellant to modify his behaviour in a way that falls within the scope of s 5J(3)(a) to (c) and also that the Tribunal failed to otherwise consider whether such behaviour modification would be considered “reasonable steps” that may be taken to avoid a real chance of persecution for the purposes of s 5J(3). The primary judge rejected a similar contention and I see no error in the primary judge’s conclusion.
The appellant’s submission, in my view, misconstrues what the Tribunal in fact did. The Tribunal placed no express reliance on s 5J(3). Nor am I persuaded that any implicit reliance was placed on that provision by the Tribunal. The Tribunal’s reasons at [37] to [39] are to be read fairly, and, fairly read, it is clear to me that the Tribunal assessed the appellant’s claim that he would be persecuted on the basis that the appellant would continue to participate in his religious activities as he had done at the past. There is no suggestion that the Tribunal assessed the claim on the basis that the appellant’s religious activities would need to be modified.
The Tribunal noted at [39] that the appellant had been able to continue to participate in mass and church activities in the time before he left Vietnam and that there had only been one limitation, which was that, for a few months, he was unable to return to the chapel at Con Cuong. The appellant’s submissions, it seems to me, seek to make too much of a passing reference in country information to which the Tribunal referred which stated that Catholics in Vietnam are not being precluded from worshipping quietly in a manner that conforms to government policies and sensitivities.
Accordingly, ground 2 is rejected.
The appellant’s appeal should be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg. Associate:
Dated: 4 June 2021
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